       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                          TREMAINE BEARD,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D18-159

                          [September 18, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 10-22473CF10A.

  John E. Bergendahl of Law Offices of John E. Bergendahl, Miami, for
appellant.

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

CROOM, JANET, Associate Judge.

   The defendant below appeals a conviction of armed robbery in
possession of a firearm, based on multiple trial court errors. We find no
error on all issues raised, excepting whether the trial court erred in
admitting into evidence photographs of an individual who is purportedly
the defendant, holding a handgun. While the trial court committed error,
as discussed below, we find that any such error was harmless.

   The victim met the defendant and another person in a CVS parking lot,
expecting to pay cash in exchange for used electronic devices. The
transaction took place at the trunk of a vehicle, where the purported
devices were located. Just as the trunk opened, the defendant pulled out
a gun and put it to the victim’s neck, told him not to move, not to say
anything, and took the cash. A police car entered the CVS parking lot and
the defendant fled the scene with his accomplice. At trial, the victim
described the gun as a black handgun which felt metallic against his neck.

  The State alleged that the defendant carried a firearm or other deadly
weapon during the course of the robbery, and sought to introduce
photographs retrieved from the defendant’s phone which depicted him
holding a black handgun. However, the defendant stated that his partner
pulled a phone out, stuck it in the victim’s back, and instructed the victim
not to move. The defendant sought to exclude the two photographs
retrieved from his phone, asserting that there was no evidence to link the
firearm in the photo to the one supposedly used to commit the robbery.
The defendant further stated that because the authorities did not recover
a gun during their investigation, the photographs would be irrelevant and
highly prejudicial.

   Over objection, the trial court let the two photographs into evidence,
and the victim testified that the individual in the photos was the
defendant, further stating that the gun was similar to the one used in the
robbery. The defendant denied that he was the individual depicted holding
the gun in the photographs and testified that they were pictures of his
identical twin brother that the defendant had taken with the telephone.
During trial, the identical twin brother came into the courtroom and was
displayed for the jury.

   “A trial court’s ruling on the admissibility of evidence is subject to an
abuse of discretion standard of review, but the court’s discretion is limited
by the rules of evidence and the applicable case law.” Horwitz v. State,
189 So. 3d 800, 802 (Fla. 4th DCA 2015).

    This Court has previously outlined the rules regarding the admissibility
of evidence. See O’Connor v. State, 835 So. 2d 1226, 1230 (Fla. 4th DCA
2003).

      Evidence must be relevant in order to be admissible. See §
      90.402, Fla. Stat. [(2017)]. Relevant evidence is defined as
      evidence “tending to prove or disprove a material fact.” §
      90.401, Fla. Stat. [(2017)]. While all admissible evidence must
      be relevant, not all relevant evidence is admissible; section
      90.403 mandates that “[r]elevant evidence is inadmissible if
      its probative value is substantially outweighed by the danger
      of unfair prejudice.” § 90.403, Fla. Stat. [(2017)].

Id. “Generally, any facts relevant to prove a fact in issue are admissible
unless admission is precluded by a specific rule.” Council v. State, 691 So.
2d 1192, 1194 (Fla. 4th DCA 1997).

   “It is well-settled that in order for evidence of a firearm to be admissible
as relevant in a criminal trial, the state must show a sufficient link between
the weapon and the crime.” Metayer v. State, 89 So.3d 1003, 1007 (Fla.

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4th DCA 2012). The Fifth District has described what is, and is not,
necessary to show this “sufficient link.” See Gartner v. State, 118 So. 3d
273, 276 (Fla. 5th DCA 2013) (stating that the trial court did not abuse its
discretion in allowing evidence linking a seized item to a crime, even
though the evidence was inconclusive, because the victim remembered
distinct features of the gun’s handle, and testified that the distinct features
resembled the gun at the crime).

      In determining whether a sufficient nexus exists, the trial
      court can consider testimony identifying distinct similarities
      between the weapon used in the crime and the weapon
      proffered at trial. . . . A sufficient nexus does not, however,
      require testimony that the proffered weapon is definitively the
      weapon that was used during the crime. Indeed, if it is
      inconclusive that the proffered weapon is the weapon used
      during the crime but a sufficient nexus exists, it is the jury’s
      province to determine the credibility and weight of the
      evidence.

Id. (citations omitted). This court has also stated that the failure to “elicit
testimony . . . concerning whether the gun admitted was actually the
robbery weapon used, or even had similar characteristics, is not
determinative on the issue of admissibility.” Council, 691 So. 2d at 1194.

   In O’Connor, the State attempted to admit several photographs into
evidence that were found during a search of O’Connor’s home thirty-six
days after a murder and robbery occurred. 835 So. 2d at 1228. The
photographs, found in O’Connor’s room, depicted a shotgun and a bullet
proof vest, among other items. Id. O’Connor objected to the admission of
the photographs because there was no evidence linking the shotgun or the
vest to the murder, in fact, the victim had been killed with a handgun. Id.
Despite this, the trial court overruled the objection and allowed the
photographs into evidence. Id. On appeal, this court ruled that the trial
court erred in admitting the photographs. Id. at 1231. This court
theorized that when the evidence at trial does not link a seized item to the
crime, that item is inadmissible. Id.

   Applied to the facts at hand, the victim was unable to provide any
distinct features or meaningful details about the handgun, and there was
no gun or evidence of a weapon recovered from the scene. The victim
testified that the gun held on his neck was black and felt metallic. This
description is insufficient to provide any meaningful link to the gun
depicted in the photographs taken from the defendant’s phone, which may
or may not have been held by the defendant or his identical twin brother.

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Such vague testimony renders the victim’s identification of the gun in the
photos so inconclusive as to make the photos inadmissible. The jury
should not have been allowed to weigh the photographs in relation to the
testimony at trial. As such the trial court committed error.

    However, Beard’s telephone number was identified as the number used
to orchestrate the transaction with the victim at CVS. The victim positively
identified Beard when he was showed his photo in a line-up, stating: “I
recognize his face very well.” The victim also testified that Beard pressed
a gun to his neck during the robbery. This testimony, even without the
photograph, is enough to sustain a conviction for a firearms-based offense.
See Akins v. State, 838 So. 2d 637, 639 (Fla. 5th DCA 2003) (“Eyewitness
testimony that the defendant possessed a firearm is sufficient evidence to
support a finding that the defendant was in possession of a firearm.”).
Furthermore, Beard, by his own testimony, placed himself at the scene of
the crime. Thus, based on this physical evidence and testimony submitted
to the jury, any error in admitting the photographs was harmless. See
State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

   Affirmed.

DAMOORGIAN and FORST, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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