       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                        HENRY LEE JONES, JR.,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-1189

                              [May 27, 2020]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Dan. L. Vaughn, Judge; L.T. Case No.
312011CF001459A.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant Henry Jones appeals from his convictions of first-degree
murder with a firearm and burglary of a dwelling with assault or battery
while armed. He raises one issue on appeal, related to the State’s
introduction of evidence linking Appellant to a previous burglary. Finding
no error with respect to the trial court’s admission of this collateral crime
evidence, we affirm.

                               Background

   The State’s case relied in large part on the testimony of Appellant’s co-
defendant, Darius Robinson. Robinson testified that in late 2011,
Appellant came to Robinson’s residence, showed him a small revolver with
a white pearl handle and asked Robinson to go with him to the beachside
area of Vero Beach. Appellant indicated that he needed “help getting a
safe,” which Robinson understood as a request for “help to commit a
crime.” The two men proceeded to Vero Beach on Appellant’s motorcycle
and parked under a bridge. They then stole two bicycles from the front
yard of a home and rode around the area looking for a home to burglarize.
After seeing a vehicle leaving from one home, they chose that home to
burglarize.

   As Appellant and Robinson were searching through the bedroom
dressers and placing jewelry in a bag, Brian Simpson, one of the
homeowners, returned. Appellant and Robinson retreated to a bathroom,
where Robinson attempted to open a window while Appellant held the
door. Robinson saw what was later determined to be a flagpole coming in
from the other side of the door. He heard two gunshots and turned to see
Appellant holding the same gun with the white pearl handle that Appellant
had showed him earlier that day, and then heard the voice on the other
side of the door say, “you got me.” Robinson next saw Appellant fire two
more shots. It was later determined that Simpson died as a result of
multiple gunshot wounds.

   Several days after the burglary/murder, Appellant and Robinson were
arrested when they returned to the area to search for the revolver used to
shoot Simpson. They were initially taken into custody for loitering, and
Appellant was subsequently arrested when it was determined that he was
driving with a suspended license. When officers searched his motorcycle,
they discovered in its storage compartment a box of .22 caliber bullets that
matched those discovered at the murder scene. The police then searched
the home where Appellant was living and, in Appellant’s room, they found
jewelry that was identified as having been taken from the Simpson home.
Other items found in Appellant’s room were determined to have been taken
from another home in the area which had been burglarized a few days
earlier. Among the items the victim in this earlier burglary (“L.T.”) had
reported missing was a .22 caliber revolver with white pearl handle. In
addition to the gun (which was never found) and the .22 caliber bullets
found in Appellant’s motorcycle, a number of other items that L.T. had
reported missing were found in Appellant’s room and identified by L.T.

   Prior to trial, Appellant moved to exclude evidence of the L.T. burglary,
arguing that it was “Williams rule evidence,” a reference to Williams v.
State, 110 So. 2d 654 (Fla. 1959). This motion in limine was denied.

   During a five-day trial, over twenty witnesses testified for the State,
tying Appellant to the Simpson burglary/murder. Robinson, as well as
L.T. and police investigators, offered evidence linking Appellant to items
taken in the L.T. burglary, including .22 caliber bullets of the type found
both on Appellant’s motorcycle and at the Simpson home, gun bags that
were found in Appellant’s room, and the revolver that was not found but
matched the description provided by Robinson. At the conclusion of the

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trial, the jury rendered a guilty verdict on both the murder and burglary
charges. This appeal followed.

                                  Analysis

      The admission of collateral crime evidence is reviewed for an
      abuse of discretion. A trial court possesses wide discretion in
      determining the admissibility of evidence. Discretion is
      abused only where no reasonable person would take the view
      adopted by the trial court. The State may introduce evidence
      of a collateral crime when it is relevant to prove a material fact
      in issue like identity, preparation, motive, intent, opportunity,
      plan, absence of mistake or accident, or knowledge. However,
      even if the evidence is relevant, it is admissible only if its
      probative value is not substantially outweighed by the danger
      of unfair prejudice.

Razz v. State, 231 So. 3d 479, 481–82 (Fla. 4th DCA 2017) (internal
citations and quotation marks omitted).

A. The Relevance of the Collateral Crime Evidence to the Charged Crimes.

   Appellant argues that the trial court abused its discretion in allowing
the State to introduce collateral crime evidence of the L.T. burglary
because such evidence was not relevant to prove a material fact in the
burglary at issue. He maintains that “the two burglaries bore no more
similarity to one another than any other two burglaries of dwellings.”
Rather, Appellant contends that introduction of evidence suggesting his
involvement in the L.T. burglary only prejudiced him by improperly
attacking his character and propensity to commit crime.

   Section 90.404(2)(a), Florida Statutes (2019), sets forth the general rule
on the admissibility of collateral crime evidence and provides that the State
may introduce similar fact evidence of a defendant’s other crimes, wrongs
or acts when it is relevant to prove a material issue other than the bad
character or propensity of the defendant. § 90.404(2)(a), Fla. Stat. (2019).
Such evidence may be admissible even where it points to the commission
of another crime. Williams, 110 So. 2d at 659 (“[R]elevant evidence will
not be excluded merely because it relates to similar facts which point to
the commission of a separate crime.”).

   While the relevance of collateral crime evidence is often a function of
similarity, the similarity of the offenses is not necessarily a requirement.
McLean v. State, 934 So. 2d 1248, 1255 (Fla. 2006). Similarity is a

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requirement of admissibility only when a party seeks to introduce
collateral crime evidence for the purpose of establishing facts, such as
identity or common plan, where the similarity between the charged offense
and the other crime is what gives the evidence probative value. Williams
v. State, 621 So. 2d 413, 414 (Fla. 1993). Collateral crime evidence,
whether factually similar or dissimilar to the charged crime, may still be
admitted if it is relevant and probative of a material fact in issue. Id.

    Here, the L.T. burglary evidence was properly admitted because the
collateral crime evidence was relevant to the issue of ownership and
possession of the gun purportedly used in the subsequent commission of
the Simpson burglary/murder. The State introduced evidence that, a few
days before the Simpson burglary/murder, Appellant and Robinson had
burglarized L.T.’s residence, stealing five firearms and .22 caliber bullets
and blanks. The State then presented evidence that .22 bullets and
blanks, matching the description of those stolen during the L.T. burglary,
had been found in Appellant’s motorcycle’s storage compartment.
Further, L.T. testified that among the five firearms stolen during the
burglary of his home was a .22 caliber ladies’ revolver with a worn bluish
finish and white pearl handle, and that the revolver had been in a tan or
brown range bag.

   While the State did not recover the revolver, it introduced evidence that
the tan or brown range bag in which the revolver had been stored was later
found in Appellant’s room, and that Appellant’s fingerprints were on the
ear muffs inside the range bag, suggesting that Appellant had also been in
possession of the revolver. The State also elicited testimony from Robinson
who identified Appellant as the shooter and co-participant in both the
Simpson and L.T. burglaries. Robinson further testified that on the day of
the Simpson burglary/murder, Appellant showed him a small revolver
with a white handle, similar to the one L.T. had reported stolen from his
property, and that while burglarizing the Simpson home, Robinson heard
Appellant use a firearm to shoot the victim multiple times through the
door.

    The record indicates that the State did not introduce the collateral
crime evidence merely to attack Appellant’s character or to perpetuate a
narrative that Appellant has a propensity to commit burglaries and that
he had likely committed the Simpson burglary because he had previously
committed the L.T. burglary. While this evidence surely had a prejudicial
effect, the mere fact that such evidence was prejudicial did not alone make
it inadmissible. “So long as evidence of other crimes is relevant for any
purpose the fact that it is prejudicial does not make it inadmissible. The
true test is relevancy.” Razz, 231 So. 3d at 482 (quoting Ashley v. State,

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265 So. 2d 685, 694 (Fla. 1972)).

   Here, the prejudice is outweighed by the relevance of the collateral
crime evidence to help prove Appellant’s participation in the Simpson
burglary/murder and, specifically, as strong circumstantial evidence that
he possessed the murder weapon because he had obtained it only a few
nights earlier during the L.T. burglary. See id. at 482-83 (“Although
appellant contends that the evidence of the second shooting only speaks
to his bad character, the evidence clearly has probative value in showing
his possession of the murder weapon only eight days after the original
crime, and was a significant piece of the puzzle linking Appellant to the
weapons used in the [instant case].”).

B. The Discussion of the Collateral Crime was limited in scope.

    In furtherance of his undue prejudice argument, Appellant contends
that evidence and testimony regarding the L.T. burglary became a “feature”
of the Simpson burglary/murder trial, and that it so overwhelmed evidence
of the Simpson burglary/murder that it prompted the jury to more readily
believe that because he burglarized the L.T. property, he more than likely
burglarized the Simpsons’ property as well. “‘Collateral crime evidence
becomes an impermissible ‘feature’ where collateral act evidence
‘overwhelms’ evidence of the charged crime and becomes ‘an impermissible
attack on the defendant’s character or propensity to commit crimes.’”
Barnett v. State, 151 So. 3d 61, 63 (Fla. 4th DCA 2014) (quoting Grier v.
State, 27 So. 3d 97, 101 (Fla. 4th DCA 2009)); Bush v. State, 690 So. 2d
670, 673 (Fla. 1st DCA 1997) (“Unfair prejudice results where the state
makes a collateral offense a feature, instead of an incident, of a trial.”).

    Appellant’s contention that the evidence surrounding the L.T. burglary
became a “feature” of the trial is meritless and not supported by the record.
Appellant’s brief takes issue that forty pages of the trial transcript detailed
testimony related to the L.T. burglary and the property taken from L.T.’s
home. However, in its Answer Brief, the State correctly points out that the
trial transcript spans 1,057 pages and that the five-day trial featured
twenty-three witnesses, only three of whom commented on the L.T.
burglary. Thus, discussion of the L.T. burglary was not so overwhelming
to ‘“transcend the bounds of relevancy to the charge being tried’ and the
prosecution [did not] ‘devolve[] from development of facts pertinent to the
main issue of guilt or innocence into an assault on the character of the
defendant.’” Conde v. State, 860 So. 2d 930, 945 (Fla. 2003) (quoting
Williams v. State, 117 So. 2d 473, 475 (Fla. 1960)).

   Further, the extent of the discussion of the L.T. burglary was limited to

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the missing .22 bullets, blanks, firearms, and range bag—the items linking
Appellant to possession of the white pearl handle revolver, the alleged
murder weapon in this case. The trial court properly limited the scope of
discussion of the L.T. burglary to when and where the burglary took place
and the items taken during that burglary that were later recovered in
Appellant’s residence, motorcycle or on his person. Moreover, the jury was
properly provided the following Williams rule instruction, immediately
before jury deliberations:

      The evidence which had been admitted to show other crimes,
      wrongs or acts allegedly committed by the defendant will be
      considered . . . by you only as that evidence relates to proof of
      opportunity, preparation, plan or possession of a revolver or
      firearm on the part of the defendant. However, the defendant
      cannot be convicted for a crime, wrong or act that is not
      included in the indictment and this evidence should not be
      considered by you as evidence of bad character or propensity.

   Accordingly, the trial court did not err by admitting the evidence related
to the L.T. burglary, as the evidence adduced about that burglary was
limited in scope to the material issues relevant to this case.

                                Conclusion

    On November 17, 2011, Brian Simpson was murdered while defending
his home. Soon thereafter, Appellant was arrested and charged with
Simpson’s murder and the burglary of his dwelling. A comprehensive
police investigation preceded and followed the arrest, leading to
Appellant’s prosecution and conviction in 2014. Due to an error during
the jury selection voir dire, a second trial was necessary. Jones v. State,
215 So. 3d 742 (Fla. 4th DCA 2017). To their credit, counsel for the State
and the defense vigorously argued their respective cases anew, over the
course of five days. In 2019, Appellant was convicted of burglary and the
unnecessary and tragic murder of Brian Simpson. Finding no error with
the trial court’s rulings as to the admission of Williams rule evidence, the
only issue before us in this appeal, we affirm Appellant’s convictions of
first-degree murder and burglary and his life sentences.

   Affirmed.

GROSS and GERBER, JJ., concur.

                            *         *        *


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Not final until disposition of timely filed motion for rehearing.




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