        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           JEFFREY A. HELMS,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D17-3811

                               [May 15, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Laura    Johnson,      Judge;    L.T.    Case     No.
2016CF003443AXXXMB.

  Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    Jeffrey Helms appeals his conviction for robbery with a firearm, for
which he was sentenced to life in prison as a prison releasee reoffender.
He argues that the trial court erred in allowing the investigating detective
to testify that appellant’s girlfriend advised the detective of his cell phone
number, as this was improper hearsay. He also argues that the trial court
erred in sentencing him as a PRR, as he was neither committed to nor
released from the Department of Corrections within three years of the
robbery. We agree on both issues and reverse. We affirm as to the
remaining issues without further discussion.

    In February 2016, a man wearing a red button-down shirt, khaki pants,
and sunglasses entered a Walgreens in Jupiter at about 8 p.m., and he
robbed the store’s cashier at gunpoint. The store’s surveillance video,
admitted at trial, shows the white male wearing a black baseball cap with
a drawing of a white face on it. He approaches the female cashier while he
is speaking on a cell phone, and she retrieves cigarettes from behind the
store’s counter. He fumbles in his pocket, and then the cashier hands him
money out of the cash register’s drawer. The store’s outdoor surveillance
footage shows the suspect walking towards the store from outside of the
parking lot, and about two minutes later, running out of the store towards
the same area.

   About three weeks later, the cashier participated in a photo lineup with
the investigating detective, and she identified appellant as the robber. The
lineup contained six pictures of white males with earrings, but only
appellant was wearing a red, collared shirt like the robber. The cashier
identified appellant as the perpetrator in the robbery.

   Appellant was charged with robbery with a firearm. Prior to trial, he
moved to suppress the cashier’s identification. Although the trial court
found that the lineup was unnecessarily suggestive, it ruled that there was
no risk of irreparable misidentification because the cashier was certain of
her identification.

   In 2017, the case proceeded to jury trial. The cashier testified and
explained the incident. She considered herself to have a photographic
memory and remembered faces. She described the perpetrator as wearing
a red shirt and sunglasses. She stated that her employer instructed
employees to concentrate on faces of perpetrators. The cashier also
testified regarding the lineup. She identified appellant’s picture in the
lineup based on her memory, and she did not rely solely on the red shirt
to identify him. She testified that he possessed a firearm during the
robbery.

   During cross-examination, contrary to her earlier testimony, the
cashier testified that she had training on how to handle robberies, and the
training video instructed her to avoid eye contact with the robber. She
saw appellant’s eyes only one time when he quickly was turning his head.
After the incident, she told the detective that appellant’s eyes were blue,
but at trial, she said they were bluish green. Also, in her deposition, she
testified that she couldn’t notice his hair, but right after the robbery, she
told the detective that his hair looked dirty blonde. At trial, she stated it
was brownish black. Appellant was the only man wearing a red shirt in
the photo array, and that fact stuck out in her mind and was “a big
deciding factor for” her. In viewing the photo lineup, she looked at the
suspects’ faces, necks, and shirts to decide, but their faces looked the
same. After the lineup, she asked the detective if she got the right guy,
and the detective responded in the affirmative.

   Appellant’s girlfriend also testified at trial. Appellant occasionally
stayed overnight at her house in Port St. Lucie. Sometime after the

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robbery, the girlfriend met with the investigating detective, but she did not
remember giving either her or appellant’s cell phone number to the
detective. She did not remember appellant’s phone number.

    The investigating detective then testified that she met with appellant’s
girlfriend a few weeks after the robbery. Regarding the issue on appeal,
the detective testified that the girlfriend provided her with appellant’s
phone number. Based on that information, the detective obtained a search
warrant for the phone records that were linked to that number. Defense
counsel unsuccessfully objected based on hearsay. At sidebar, counsel
argued that the State did not lay the proper foundation to connect the
phone number to appellant. He also argued that the girlfriend testified
that she did not remember appellant’s number, but she did not testify that
she gave it to the police. Thus, defense counsel contended that there was
no evidence indicating that it was appellant’s phone number, and the
records linked to the number were not authenticated because the
subscriber’s name was the name of appellant’s mother.

    The court found that although appellant’s girlfriend either did not
remember appellant’s number or denied giving it to the detective, pursuant
to section 90.614, Florida Statutes (2017), the detective could testify about
the statement that was made by the girlfriend to the detective. If the
statement was admissible and the phone number was linked to appellant,
then the phone records also were admissible. The court admitted the
phone records for that number, which included the phone’s cell site
location information.

   Later in trial, before the State’s cell phone expert testified about the
phone records, defense counsel renewed his objections. He argued that
the detective’s testimony, i.e., that the girlfriend told the detective
appellant’s number, was a prior inconsistent statement; however, a prior
inconsistent statement admitted under section 90.614 could not be used
as substantive evidence if it was not a sworn statement that was given
during a prior proceeding. The court overruled the objection, stating that
the phone records were self-authenticating.

   The cell phone expert then testified that based on the admitted phone
records, appellant’s cell phone registered off a tower in Jupiter around
7:48 p.m. on the night of the robbery. This was around the time the
surveillance video at Walgreen’s captured the incident. The expert
explained that the cell phone would be in the geographical area of the cell
towers sector, which in this case included the location of the Walgreen’s.
Calls from the phone then were picked up by towers south of Jupiter,
showing the phone likely was travelling south, but it eventually moved

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north, being picked up by a tower in Port St. Lucie. The phone remained
in that area until the following afternoon.

   Finally, a man who was a neighbor of appellant’s family for a few years
testified that he saw surveillance photographs from the 2016 robbery. He
saw appellant in 2014, and he was certain that appellant was the robber.

    The State rested, and the defense unsuccessfully moved for judgment
of acquittal. The defense did not present any witnesses. Following closing
arguments, the jury asked twice to review the surveillance video of the
interaction between the robber and the cashier. It also reviewed the
cashier’s testimony. After deliberations, the jury found appellant guilty of
robbery, concluding that he actually possessed a firearm. The trial court
sentenced appellant to life in prison as a PRR. This appeal followed.

   Appellant argues that the trial court erred by allowing the investigating
detective to testify that the girlfriend gave the detective appellant’s phone
number, as this was improper hearsay. He asserts that the error was
harmful because it allowed the State to introduce evidence of appellant’s
purported cell phone records. We agree.

   We review a trial court’s decision on the admissibility of evidence for an
abuse of discretion, as limited by the rules of evidence. Browne v. State,
132 So. 3d 312, 316 (Fla. 4th DCA 2014). However, whether evidence falls
under the statutory definition of hearsay or is admissible under an
exception to the hearsay rule are questions of law reviewed de novo. Id.

   The trial court relied on section 90.614, Florida Statutes (2017), in
admitting into evidence the girlfriend’s statement to the detective regarding
appellant’s phone number. The court allowed the State to use the
statement to admit the phone records that were linked to that number;
thus, the State used the statement as substantive evidence. The court
erred because the statement could be used, if the State laid the proper
foundation, for only impeachment purposes.

   Section 90.614(2), Florida Statutes, provides in part:

      Extrinsic evidence of a prior inconsistent statement by a
      witness is inadmissible unless the witness is first afforded an
      opportunity to explain or deny the prior statement and the
      opposing party is afforded an opportunity to interrogate the
      witness on it, or the interests of justice otherwise require. If
      a witness denies making or does not distinctly admit
      making the prior inconsistent statement, extrinsic

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      evidence of such statement is admissible.

(emphasis added). If a prior inconsistent statement was made under oath,
it may be admissible as substantive evidence. See § 90.801(2)(a), Fla. Stat.
(2017) (providing that a statement is not hearsay if: the declarant testifies
at trial; the declarant is subject to cross-examination regarding the
statement; and the statement is, “[i]nconsistent with the declarant's
testimony and was given under oath subject to the penalty of perjury at a
trial, hearing, or other proceeding or in a deposition”); see Castillo v. State,
217 So. 3d 1110, 1114-15 (Fla. 3d DCA 2017) (finding that because the
trial witness’s prior statement was not made under oath at a prior
proceeding, it could not be admitted as substantive evidence, but it could
be used for impeachment). Here, the girlfriend’s prior statement, in which
she gave the detective appellant’s phone number, was not given under oath
at a prior proceeding. Thus, the statement clearly was hearsay and not
admissible as substantive evidence.

    The present case is similar to Jackson v. State, 961 So. 2d 1104 (Fla.
5th DCA 2007). There, the defendant was convicted of aggravated battery
with a deadly weapon for the stabbing of the victim. Id. at 1105. On
appeal, the defendant challenged the admission of an eyewitness’s
statement to the police, which differed from that witness’s testimony at
trial. Id. At trial, the witness, who knew both the victim and the
defendant, testified that he did not see the defendant stab the victim. Id.
at 1106. However, over a hearsay objection, an investigator testified that
the witness gave a prior statement to the police in which he claimed that
he saw the defendant stab the victim. Id. The trial court found that the
statement was admissible as a prior inconsistent statement, and the State
addressed the statement twice during closing argument. Id. at 1106-07.
The Fifth District held that the prior statement was not admissible as
substantive evidence, because it was not given under oath at another
proceeding, as required by section 90.801(2)(a), Florida Statutes. Id. at
1107. Furthermore, the State could not use the statement to impeach the
witness, as the prosecutor did not lay the proper foundation under section
90.614(2), Florida Statutes. Id. Because there was little physical evidence,
no other eyewitness testimony, and the hearsay was used as substantive
evidence that the prosecutor stressed during closing argument, the error
was harmful. Id.

    As in Jackson, here, the prior statement of the girlfriend was improperly
used as substantive evidence because it was not given under oath at an
earlier proceeding. It was substantive, as the State used it to present the
cell phone records, which it utilized to determine the appellant’s
whereabouts on the evening of the robbery.

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    We cannot find that the above error was harmless beyond a reasonable
doubt. See State v. DiGuilio, 491 So. 2d 1129, 1138-39 (Fla. 1986)
(concluding that under the harmless error test, the State has the burden
to show “that there is no reasonable possibility that the error contributed
to the conviction,” and the appellate court must conclude beyond a
reasonable doubt that the error did not affect the verdict). During closing
argument, the prosecutor stated that the cell tower location information
tied all of the evidence together, showing that appellant’s phone was in
Jupiter at the time of the robbery and that it then travelled north to Port
St. Lucie, where he would stay with his girlfriend, who admitted to having
a hat that looked like the one worn by the robber. During rebuttal, the
State again stressed how the phone records placed appellant in the Jupiter
area at the time of the crime. Furthermore, although the dissent argues
that the cashier was 100% certain in her identification of appellant, she
was impeached with discrepancies in her description of the perpetrator
through various statements given at the time of the robbery, during
deposition, and at trial. The dissent also notes that there was testimony
that appellant’s girlfriend had a dark colored sedan like the one observed
in the surveillance video, but the video does not show the kind of car in
which the perpetrator left the scene. Additionally, the lineup was
admittedly suggestive because appellant was the only person wearing a
red shirt, and the red shirt was a big deciding factor for the cashier in her
identification. Moreover, a jury could conclude that her certainty of the
identification at trial was significantly bolstered by the detective telling her
that she had identified the correct person in the photo lineup. Despite this
impeaching information, the jury may have given the cashier’s
identification of appellant more weight because of the cell tower location
information, providing a “reasonable possibility that the error contributed
to the conviction.” DiGuilio, 491 So. 2d at 1138.

    We thus reverse and remand for a new trial because the court erred in
admitting the hearsay evidence of the cell phone number provided by the
girlfriend, which was used as substantive evidence to obtain the cell site
location information. Although we reverse for a new trial, we also note
that based on the supreme court’s decision in State v. Lewars, 259 So. 3d
793 (Fla. 2018), appellant does not qualify as a PRR under section
775.082(9)(a)1., Florida Statutes (2017). 1 In Lewars, our supreme court

1 Section 775.082(9)(a)1.g., Florida Statutes (2017), provides that a defendant

who commits a robbery “within 3 years after being released from a state
correctional facility operated by the Department of Corrections . . . following
incarceration for an offense for which the sentence is punishable by more than 1
year in this state” qualifies as a PRR.

                                       6
held that “a defendant must have been incarcerated in and physically
released from a prison, and not a county facility operated by the local
government, within the statutory period” to qualify as a PRR. Id. at 800-
01. Here, although appellant was sentenced for several felony offenses in
2013, he was sentenced to time served, and he never was physically sent
to the DOC. Therefore, he did not qualify for sentencing as a PRR.

   Reversed and remanded for a new trial.

GROSS, J., concurs.
LEVINE, J., concurs in part and dissents in part with opinion.

LEVINE, J., concurring in part and dissenting in part.

    I agree with the majority that appellant should be resentenced since he
was not released from a Department of Corrections facility within the last
three years. I also agree that we should affirm on all other issues raised
by appellant, including the admission of the photographic lineup.
Although the trial court determined that the lineup was suggestive, the
trial court also found that there was no risk of irreparable misidentification
because “the victim had sufficient time and pa[id] sufficient attention to
the robber” and the victim “had no doubt, and was positive about the
identification.” I even agree with the majority that the introduction of the
phone records through appellant’s girlfriend was error. Where I part
company with the majority is on the issue of harmless error. I would affirm
all convictions and reverse only for a resentencing.

    In this case, the admission of phone records violative of hearsay is not
harmful error. The evidence presented by the state at trial included the
following:

      •   The victim was “very confident” that she identified the individual
          who had robbed her;

      •   The victim took only thirty seconds at the photo lineup to identify
          appellant;

      •   The victim also identified appellant at trial;

      •   The victim gave a very detailed description of the person who
          robbed her. During the suppression hearing, she described him
          as “a tall, athletic man” with “short dirty blond hair” and “blue
          green eyes.” He was “a little tanned” and “dressed very nicely,
          like he was going to go out.” He wore a “long sleeved red maroon

                                      7
          shirt,” “a silver chain,” and had “a long neck and his ears were
          kind of short.” He looked “very muscular like he went to the gym
          a lot.” He wore a cap and “tan long pants, like dress pants”;

      •   The state introduced a surveillance video of the robbery;

      •   The victim described the robber as wearing a black hat with a
          white logo, which appeared to the victim as being a kind of hat
          worn by skateboarders;

      •   The victim explained that she was “good with faces” regarding her
          identification of appellant from the line-up;

      •   Appellant’s girlfriend testified that appellant had a black hat with
          a white logo on it that previously had been at her home;

      •   When appellant’s girlfriend was shown the surveillance video, an
          officer described her demeanor as being extremely upset and
          crying;

      •   Appellant’s girlfriend had a dark-colored sedan like the one
          observed in the surveillance video;

      •   A former neighbor of appellant, who had lived across the street
          from appellant for five years, was so certain that appellant was
          in the surveillance photos disseminated by police that the former
          neighbor contacted the police.

   The state mentioned the phone records in closing argument, but their
utility may have been limited. The testimony at the trial put the time of
the robbery as 8:00 p.m. at the Walgreens on 575 West Indiantown Road
in Jupiter. However, based on calls and text messages sent to nearby cell
towers, the phone records placed appellant’s alleged cell phone at different
areas during the time at question:

      7:48   p.m.   near   Abacoa and Roger Dean Stadium in Jupiter;
      7:55   p.m.   near   Riviera Beach area;
      8:01   p.m.   near   Mangonia Park area;
      8:17   p.m.   near   Mangonia Park area;
      8:35   p.m.   near   Mangonia Park area;
      8:40   p.m.   near   Palm Beach Lakes Boulevard area.




                                        8
The cell phone activity placed the phone in Port St. Lucie from 10:47 p.m.
until 5:00 p.m. the next day.

    The trial testimony showed that a cell phone will typically connect to
the closest tower, but a cell phone might connect to a tower farther away
if the closest tower is overwhelmed with activity and frequency, such as
during rush hour traffic. For example, a cell phone might connect to a
tower three quarters of a mile away instead of a tower half a mile away.

   Although the records placed appellant’s phone in the general area at
the time of the robbery, it could be argued that the phone showed activity
in different areas of the northern part of Palm Beach County at about the
same time as the robbery. In fact, appellant’s counsel argued in closing
that the phone records here were not a “smoking gun,” but rather helpful
to appellant:

         I just want to take a bit of time to talk about the cell phone
      records, the State’s smoking gun. So at the time of the
      robbery where all of the witnesses in this case testified 8:00
      p.m., right? That’s what they testified to. You didn’t have
      anybody from Walgreen’s saying any accuracy about any
      other time or confirming any other time. All of the witnesses,
      their time was 8:00 p.m.

         7:55, Singer Island, right? 8:01, Riviera Beach; 8:17,
      Riviera Beach; 8:35, Riviera Beach. We’re in the Riviera Beach
      area. Let alone all of [defense counsel’s] cross examinations
      that this is kind of approximate.

   On the one hand, the phone records placed appellant in the general
area of the crime; on the other hand, the phone records tended to
exculpate appellant by placing him in cities away from the actual scene of
the crime. See Glendening v. State, 536 So. 2d 212, 218 (Fla. 1988) (stating
that admission of exculpatory testimony “unquestionably did not
contribute to the conviction and was harmless beyond a reasonable
doubt”); Chapman v. California, 386 U.S. 18, 22 (1967) (stating that the
purpose of the harmless error rule is to “block setting aside convictions for
small errors or defects that have little, if any, likelihood of having changed
the result of the trial”). Indeed, “[t]he focus [of the harmless error test] is
on the effect of the error on the trier-of-fact.” State v. DiGuilio, 491 So. 2d
1129, 1139 (Fla. 1986). Since the evidence of the phone records could
have either created reasonable doubt or potentially exculpated appellant,
it cannot be said “there is a reasonable possibility that the error [in
admitting the phone records] affected the verdict.” Id.

                                      9
   Thus, it is hard to imagine that the introduction of the phone records
was not harmless error beyond a reasonable doubt. See Livingston v.
State, 219 So. 3d 911, 916 (Fla. 2d DCA 2017) (finding admission of
hearsay evidence harmless where “[t]he victim gave a detailed in-court
description of the person who robbed him, and the victim identified [the
defendant] in court as that person with 100% certainty”); Fields v. State,
666 So. 2d 554, 554 (Fla. 3d DCA 1995) (“[I]f there was any error in the
admission of this evidence, that error was harmless in light of the solid
eyewitness identification of the defendant.”); United States v. Simpson, 188
F.3d 516, 516 (9th Cir. 1999) (finding that any error in admitting testimony
over evidentiary objection “would have been harmless because the
government presented at trial additional identification evidence, including
the eyewitness testimony of the teller who was robbed and bank
surveillance photographs and video tape footage of the robbery”); cf.
Jackson v. State, 598 So. 2d 303, 303 (Fla. 3d DCA 1992) (stating that
improper admission of evidence not harmless where “evidence of guilt
consisted entirely of non-conclusive eyewitness identification”).

   Since the phone records did not place appellant at the scene of the
robbery at the time of the reported crime, the admission of these records
was harmless beyond a reasonable doubt.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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