          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                         No. 1D16-928
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HORACE MONROE WOOD,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Bay County.
James B. Fensom, Judge.

                        February 28, 2018


OSTERHAUS, J.

     Horace Wood appeals his convictions for sexual battery on a
child 12 years of age or younger and lewd or lascivious molestation
on a child 12 years of age or younger. He raises six issues on
appeal, one of which we find has merit and requires reversal. We
otherwise affirm.

     At trial, part of the State’s evidence was the testimony of two
other children, who testified that Mr. Wood had also sexually
abused them. Mr. Wood asserted that the evidence was
inadmissible, but after holding a pre-trial hearing, the court
allowed the State to present the testimony.

   In cases of child molestation, “evidence of the defendant’s
commission of other crimes, wrongs, or acts of child molestation is
admissible, and may be considered for its bearing on any matter to
which it is relevant.” § 90.404(2)(b)(1), Fla. Stat.; see also Williams
v. State, 110 So. 2d 654 (Fla. 1959). Because of the possible danger
of unfair prejudice, the “trial court’s gatekeeping function is
critical. In every case, the trial court must conduct the weighing
required by section 90.403.” McLean v. State, 934 So. 2d 1248, 1261
(Fla. 2006). However, “before even considering whether to allow
evidence of prior acts to be presented to the jury, the trial court
must find that the prior acts were proved by clear and convincing
evidence.” Id. at 1262; Harrelson v. State, 146 So. 3d 171, 173 (Fla.
1st DCA 2014).

     Here, while the trial court properly performed the balancing
required by § 90.403 and McLean, it failed to make the required
finding that the collateral acts were proved by clear and convincing
evidence. This defect requires us to reverse. Harrelson, 146 So. 3d
at 174 (reversing the judgment and sentence where the trial court
failed to make the requisite finding that the collateral acts were
proved, and declining to make such finding in the first instance).
As in Harrelson, however, “we do not believe this conclusion
mandates a new trial because the trial court did perform the
section 90.403 ‘gatekeeping’ analysis required under McLean.” Id.

     Accordingly, we reverse Mr. Wood’s conviction with directions
that the trial court conduct the required clear and convincing
inquiry. If the State cannot prove the collateral crimes by clear and
convincing evidence, then the trial court shall hold a new trial
excluding the evidence of the collateral crime or crimes that were
not proved. Id.

    REVERSED and REMANDED.

LEWIS and MAKAR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Victor Holder, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris,
Assistant Attorney General, Tallahassee, for Appellee.




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