                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                                 IN THE DISTRICT COURT OF APPEAL
                                                 OF FLORIDA
                                                 SECOND DISTRICT



STATE OF FLORIDA,                  )
                                   )
           Petitioner,             )
                                   )
v.                                 )                    Case No. 2D19-508
                                   )
ROBERT LINCOLN,                    )
                                   )
           Respondent.             )
___________________________________)

Opinion filed September 25, 2019.

Petition for Writ of Certiorari to the Circuit
Court for Highlands County; Peter F.
Estrada, Judge.

Ashley Moody, Attorney General,
Tallahassee, and Elba Caridad Martin,
Assistant Attorney General, Tampa, for
Petitioner.

Daniel K. Payne of Kemper Payne Law
P.A., Sebring, for Respondent.


SILBERMAN, Judge.

               The State seeks certiorari review of a pretrial order denying its request to

offer Williams1 rule evidence in its prosecution against Robert Lincoln for lewd

molestation and child abuse. We conclude that the circuit court departed from the


               1Williams   v. State, 110 So. 2d 654 (Fla. 1959).
essential requirements of the law by applying a standard that was abrogated by section

90.404(2)(b), Florida Statutes (2001). This would result in the State suffering

irreparable injury by depriving the State of crucial evidence that would have

corroborated the victim's testimony. Accordingly, we grant the petition.

A.     The Williams rule before the enactment of section 90.404(2)(b)

              Under the Williams rule as established in 1959, "[R]elevant evidence will

not be excluded merely because it relates to similar facts which point to the commission

of a separate crime." McLean v. State, 934 So. 2d 1248, 1255 (Fla. 2006) (alteration in

original) (quoting Williams v. State, 110 So. 2d 654, 659-60 (Fla. 1959)). However,

similar fact evidence of a collateral crime is prejudicial because it creates the risk of a

jury convicting the defendant based on his propensity to commit crimes instead of his

guilt of the charged offense. Id. (citing Heuring v. State, 513 So. 2d 122, 124 (Fla.

1987)). Thus, similar crime evidence is generally subject to "a strict standard of

relevance." Id. (quoting Heuring, 513 So. 2d at 124).

              In cases where collateral crime evidence is relevant to establish the

identity of the perpetrator, the supreme court has required " 'identifiable points of

similarity' between the collateral act and charged crime that 'have some special

character or be so unusual as to point to the defendant.' " Id. (quoting Drake v. State,

400 So. 2d 1217, 1219 (Fla. 1981)). " '[S]ubstantial similarity' is also required 'when the

[collateral crime] evidence is sought to be admitted for the specific purpose of

establishing absence of mistake or accident.' " Id. (alteration in original) (quoting

Robertson v. State, 829 So. 2d 901, 909 (Fla. 2002)).




                                             -2-
              Of course, in considering the admissibility of collateral crime evidence

under the Williams rule, courts must also determine whether "its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of issues,

misleading the jury, or needless presentation of cumulative evidence" as required by

section 90.403. McLean, 934 So. 2d at 1256 (quoting § 90.403). "Thus, the similarity of

the collateral act and charged offense goes to both the preliminary determination of

relevancy and to the evidence's probative value." Id. at 1255.

              In 1987, the supreme court held that in cases involving sexual battery

within a familial setting, collateral crime evidence of a prior sexual battery within a

familial setting is relevant to corroborate the victim's testimony. See id. at 1256-57

(citing Heuring, 513 So. 2d at 124). The Heuring court had discussed a relaxed

standard of admissibility for collateral crime evidence in such cases. See id. at 1257.

              In describing this relaxed standard of admissibility, the supreme court

explained as follows:

              [W]hen the collateral sex crime and the charged offense both
              occur in the familial context, this constitutes a significant
              similarity for purposes of the Williams rule, but . . . these
              facts, standing alone, are insufficient to authorize admission
              of the collateral sex crime evidence. There must be some
              additional showing of similarity in order for the collateral sex
              crime evidence to be admissible. The additional showing of
              similarity will vary depending on the facts of the case and
              must be determined on a case-by-case basis. Thus, we do
              not eliminate the requirement of similarity which undergirds
              the Williams rule. However, the strict similarity in the nature
              of the offenses and the circumstances surrounding their
              commission which would be required in cases occurring
              outside the familial context is relaxed by virtue of the
              evidence proving that both crimes were committed in the
              familial context.




                                             -3-
Id. at 1257-58 (emphasis added) (quoting Saffor v. State, 660 So. 2d 668, 672 (Fla.

1995)). In 1994, the court extended Heuring to allow for the admission of collateral

crime evidence in sexual battery cases outside the familial context when there is no

issue regarding the defendant's identity. Id. at 1257 (citing State v. Rawls, 649 So. 2d

1350, 1354 (Fla. 1994)). But it continued to apply the strict similarity requirement in

nonfamilial sexual battery cases. Id.

              The supreme court has summed up its case law in Heuring, Rawls, and

Saffor as follows:

                     In sum, under this Court's decisions, evidence of a
              collateral act of child molestation is relevant under the
              Williams rule to corroborate the victim's testimony in both
              familial and nonfamilial child molestation cases. We have
              relaxed the requirement for strict similarity between the
              charged and collateral offenses in the familial context, but
              there must be some similarity other than the fact that both
              offenses occurred in the family. We have not extended the
              relaxed standard of admissibility to nonfamilial cases.
              However, in both familial and nonfamilial cases, the required
              showing of similarity must be made on a case-by-case basis,
              and the collateral act evidence is inadmissible if its probative
              value is substantially outweighed by the danger of unfair
              prejudice.

McLean, 934 So. 2d at 1258.

B.     The effect of section 90.404(2)(b) on the Williams rule

              In 2001, the legislature enacted what is now section 90.404(2)(b), Florida

Statutes (2001), to abrogate the supreme court's case law in Heuring, Rawls, and

Saffor. McLean, 934 So. 2d at 1259. Section 90.404(2)(b)(1), Florida Statutes (2012),

provides, "In a criminal case in which the defendant is charged with a crime involving

child molestation, evidence of the defendant's commission of other crimes, wrongs, or




                                            -4-
acts of child molestation is admissible and may be considered for its bearing on any

matter to which it is relevant."

              "Section 90.404(2)(b) broadly provides that evidence of the defendant's

commission of other acts of child molestation is admissible regardless of whether the

charged and collateral offenses occurred in the familial context or whether they share

any similarity." McLean, 934 So. 2d at 1259. Instead, the threshold question for

admissibility under this statute is relevancy. Id. But the evidence must still meet the

requirement of section 90.403 that its probative value must not be "substantially

outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury,

or needless presentation of cumulative evidence." Id. (quoting § 90.403).

              Thus, there is no longer a substantial similarity requirement in nonfamilial

child molestation cases or a relaxed standard of admissibility in familial cases of child

molestation. But the similarity of the collateral acts and charged offense must still be

considered when making the determination of relevancy and the determination of the

evidence's probative value. "First, the less similar the prior acts, the less relevant they

are to the charged crime, and therefore the less likely they will be admissible. Second,

the less similar the prior acts, the more likely that the probative value of this evidence

will be 'substantially outweighed by the danger of unfair prejudice, confusion of issues,

misleading the jury, or needless presentation of cumulative evidence.' " Id. (quoting §

90.403).

              The supreme court has set forth the steps a trial court must take when

determining whether to admit collateral crime evidence under section 90.404(b)(2). See

McLean, 934 So. 2d at 1262. Initially, the court must find that the State proved the




                                            -5-
existence of the collateral acts by clear and convincing evidence. Then the court should

apply the section 90.403 balancing test to determine whether the probative value is

substantially outweighed by the danger of unfair prejudice by considering

              (1) the similarity of the prior acts to the act charged
              regarding the location of where the acts occurred, the age
              and gender of the victims, and the manner in which the acts
              were committed; (2) the closeness in time of the prior acts to
              the act charged; (3) the frequency of the prior acts; and (4)
              the presence or lack of intervening circumstances.

Id. The court may also consider other factors depending upon the particular

circumstances of the case. Id.

              In addition to the above factors the court must determine whether the

evidence will mislead or confuse the jury. Id. And the court should assess whether the

evidence is unnecessarily cumulative of other credibility evidence. If the evidence is

admitted, the court must ensure that the evidence does not become a feature of the

trial. Further, if requested, the court must give the jury a cautionary instruction

regarding the collateral crime evidence both at the time it is admitted and in the final jury

charge. Id.

C.     The circuit court's Williams rule analysis

              In this case, the victim told witnesses that when she was twelve years old

Lincoln, who was her step-grandfather, started molesting her. On the first occasion,

Lincoln approached her in his above-ground swimming pool. He put his hand inside her

swimsuit bottoms and rubbed her vaginal area. Over the following four years, Lincoln

would offer the victim money if she permitted him to perform oral sex on her. He would

also take her through fast food drive-ins and make her expose her breasts to get the

fast food from him. Lincoln threatened to kill himself if the victim reported the abuse.



                                            -6-
              The State sought to admit collateral crime evidence of Lincoln's

molestation of a family friend's child thirty-five years previously when she was twelve

years old. K.C. testified that Lincoln molested her on about five occasions when the two

were left alone on Lincoln's boat to go fishing. On these occasions, K.C. was wearing a

swimsuit. Lincoln fondled her vaginal area underneath her swimsuit by inserting his

finger into her vagina. He also slid off her bathing suit and fondled her breasts. Lincoln

told K.C. not to tell anyone or he would deny the accusations and harm her family.

              The circuit court denied the State's request to admit this collateral crime

evidence under section 90.404(2)(b)(1) and McLean. First, the court concluded that the

State proved the existence of the collateral crimes by clear and convincing evidence.

Then citing to McLean and Rawls, the court applied "a 'relaxed' requirement for finding

similarity of the collateral crime to the present charges" because the cases involved

familial relationships.

              The court concluded that the evidence was inadmissible because the two

crimes "do not have enough significant common features to warrant its admissibility,

even under the relaxed familial relationship standard." The court determined that the

victims' ages were the only common feature between the offenses. The court explained

that K.C. testified that Lincoln digitally penetrated her and fondled her breasts while the

two were fishing. But the victim in this case alleged that Lincoln fondled her outside the

vagina while the two were in the pool, made her show her breasts to get fast food, and

paid her to receive oral sex.

D.     Analysis




                                            -7-
              The State is entitled to certiorari relief from a pretrial ruling in a criminal

case if it can establish that "the trial court's order 'constitutes a departure from the

essential requirements of the law from which the State may suffer irreparable injury.' "

State v. Richman, 861 So. 2d 1195, 1197 (Fla. 2d DCA 2003) (quoting State v.

Johnston, 743 So. 2d 22, 24 (Fla. 2d DCA 1999)). In other words, the State must

establish that the ruling violated clearly established law and would cause material

injustice. Richman, 861 So. 2d at 1197; State v. Gates, 826 So. 2d 1064, 1066 (Fla. 2d

DCA 2002). The State asserts that although the circuit court cited to section

90.404(2)(b)(1) and McLean, it actually applied the abrogated relaxed familial standard

to determine the admissibility of the collateral crime evidence. The State argues that

the court failed to apply the correct law which required it to apply section 90.404(2)(b)(1)

by following the steps set forth in McLean.

              We agree. The circuit court cited McLean for the proposition "that there is

a 'relaxed' requirement for finding similarity of the collateral crime to the present charges

in a child molestation case that involves familial relationships between the two victims

and the defendant." However, the circuit court cited to a portion of McLean wherein the

supreme court discussed the case law that was abrogated by section 90.404(2)(b)(1).

See McLean, 934 So. 2d at 1258 (citing Saffor which was applying Heuring). Indeed,

the McLean court explained as much on the very next page: "Section 90.404(2)(b)

broadly provides that evidence of the defendant's commission of other acts of child

molestation is admissible regardless of whether the charged and collateral offenses

occurred in the familial context or whether they share any similarity. To this extent,




                                             -8-
section 90.404(2)(b) abrogates our decisions in Heuring, Rawls, and Saffor." McLean,

934 So. 2d at 1259.

              The circuit court should have followed the procedure the McLean court

subsequently set forth for applying section 90.404(2)(b). This procedure required the

court to apply the section 90.403 balancing test to determine whether the probative

value is substantially outweighed by the danger of unfair prejudice. 934 So. 2d at 1262.

Instead, the circuit court in this case applied the very standard that was abrogated by

section 90.404(2)(b). By so doing, the court violated clearly established law in a

manner constituting a departure from the essential requirements of the law. This

departure would result in the State suffering irreparable injury by depriving it of crucial

evidence that would have corroborated the victim's testimony in a case resting on the

victim's credibility. We therefore grant the petition, quash the order, and remand for the

circuit court to reconsider the State's motion using the correct standard.

              Petition granted.


VILLANTI and SLEET, JJ., Concur.




                                            -9-
