           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT

                             JACKSON PRIDEMORE,
                                  Appellant,

                                          v.

                               STATE OF FLORIDA,
                                    Appellee.

                                   No. 4D19-1555

                                  [August 5, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 17-CF-008009-
AMB.

  Carey Haughwout, Public Defender, and Breanna Atwood, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

    Jackson Pridemore appeals his conviction for one count of sexual
battery on a person less than 12 years of age. We affirm the conviction
and write primarily to address Pridemore’s claims that the trial court
improperly (1) admitted evidence of a collateral crime into evidence and (2)
allowed the state to publish a suicide note authored by the victim in the
case.

   The charges arose from the state’s contention that Pridemore sexually
abused his then-girlfriend’s daughter (“the victim”), over the course of
several years when the girl was between the ages of 7 and 11.

              Williams Rule Evidence/Child Hearsay Evidence

   Prior to trial, the state filed notices of intent to offer child hearsay
evidence and Williams 1 rule evidence at trial. Regarding the child hearsay

1   Williams v. State, 110 So. 2d 654 (Fla. 1959).
evidence, the state sought to introduce a handwritten suicide note written
by the victim, in which she disclosed that Pridemore sexually abused her.
As for the Williams rule evidence, the state sought to introduce the
testimony of a prior victim, who said that Pridemore molested her when he
was in a dating relationship with her mother. 2

    The trial court held a four-day hearing on the state’s motions. The
following facts emerged at the hearing.

                            Child Hearsay Evidence

   The victim’s stepmother (the “stepmother”) testified that the victim had
been living with her, the victim’s father, and the victim’s sister for three
years, since June 2016. Prior to that, the victim lived with her mother.

   In early 2017, when the victim was twelve years old, the stepmother
noticed that she was acting out and getting into trouble, which was
unusual. Curious about the victim’s behavior, the stepmother examined
her room and discovered a suicide note in a binder underneath her bed.
The suicide note was not addressed to anyone, but it had names and notes
underneath it. The stepmother testified that the suicide note seemed “very
familiar,” explaining that the victim had just watched 13 Reasons Why, a
Netflix series about a girl who killed herself and made tape recordings
addressed to different people.

   Concerned that the victim was going to kill herself, the stepmother
discussed the suicide note with her. The victim told her that it was not a
suicide note and that it was more like a diary to allow her to express her
feelings. The stepmother returned the note to the victim.

   About a month and a half later, the stepmother went through the
victim’s room a second time and discovered the same suicide note sticking
out of the binder, but this time more had been added to the note. These
additions said that a crime had been committed against the victim. The
note stated in pertinent part:

       This next person might take up the whole page so listen up
       because I want everyone to know.


2The state also sought to introduce the prior victim’s recorded interview, in which
she discussed the sexual abuse committed by Pridemore. After the Williams rule
hearing, the trial court limited that evidence to the prior victim’s testimony alone,
so the admissibility of the recorded interview is not at issue in this appeal.

                                         2
      Jackson: . . . it was impossible to live with you. You know
      what you did, you told me that if I told anyone I would be
      taken away from my mom, but guess what I won’t be here to
      get taken away from my mom. You raped me for about 3 years
      and I was so scared to tell anyone. I told 2 people before death
      but I never said who. . . . You were the most disgusting man
      I’ve ever met. . . . The 3 years of continuous rape are still in
      my mind and I have nightmares about it a lot. You made me
      think that if I was sexually [indiscernible] in a relationship it
      made it true, and no I never had sex besides rape but that
      doesn’t count. You made me very sensitive to the word[;]
      every time I heard it a trigger was sent through my body[.] [I]t
      made me not able to stop thinking [a]bout it. It made me think
      that its ok for a 13 year old to grab my ass or kiss me, but it
      isn’t. You changed my whole life, I bet you everyone who is
      reading this long page is like damn how was she not so fucked
      up, but I was and I still am. I wasn’t a good liar or hider, but
      I bet you my parents never saw this coming. It ways [sic] me
      down all the time. When I hear about any other rape story[,]
      I think about it.

      So that’s it. I bet you that half of y’all didn’t think I was a good
      liar or hider, but you didn’t see that coming. I hope you all
      move on and have a better life without me. Except you
      Jackson. I hope you go to prison.

    The victim was at her mother’s house at the time, so the stepmother
went there to discuss the note. The two women showed the victim the
letter. The victim had a complete breakdown; she cried uncontrollably and
tried to hide her face. The stepmother asked the victim “[i]f it was true,”
and the girl said, “Yes.”

   A counselor at a child advocacy center interviewed the victim in June
2017. During the interview, the victim detailed how Pridemore had raped
her approximately seven times over a three- to four-year period, beginning
when she was seven years old, at a time when Pridemore was dating her
mother.

                           Williams Rule Evidence

   The prior victim’s mother dated Pridemore before he began his
relationship with the victim’s mother. At one point, he lived with the
mother and the prior victim. In March 2013, several years after the mother
and Pridemore had broken up, the prior victim, then eleven years old, told

                                       3
her mother that “[Pridemore] touched me.” Her mother asked the prior
victim, “what do you mean he touched you?” The prior victim was crying
and told her that Pridemore “pulled her pants down touched her [private]
and then pulled them back up.” When she asked the prior victim “how
long,” the prior victim said it had “been about a year” before she had
reported it to her, explaining that she was afraid to tell her. The prior
victim’s mother confirmed that she was over the relationship at that point
and did not make up the allegation to get back at Pridemore for breaking
up with her.

   A woman who works for a child protection team testified that she
interviewed the prior victim in 2013. A DVD of her recorded interview was
admitted into evidence. During this interview, the prior victim disclosed
that Pridemore had pulled her underwear down and touched her vagina.

   The prior victim told the team member that on the night of the incident,
there was a birthday party at her house. Her mom told her to go upstairs
and go to bed. The prior victim went upstairs to the bedroom she shared
with her mother and laid down to watch TV. About thirty minutes later,
Pridemore walked into the room and she could hear him washing his
hands. She pretended that she was asleep, but was squinting so she could
see what he was doing. Pridemore walked over to the bed and said her
name softly a few times to see if she was asleep and waved his hand in
front of her. He then walked over to the edge of the bed, pulled the
blankets off of her, pulled her underwear down, and then touched her on
the outside of her vagina. He did not touch her anywhere else. Pridemore
washed his hands again and then left the room. Everyone was downstairs
when this happened.

    The trial court ruled that the suicide note was admissible. The court
observed that: (1) it was something the victim wrote on her own and hid
from her stepmother, intending it to be a suicide note in which she
described Pridemore’s molestation of her; (2) it was spontaneous and
specific, not the product of improper influence; and (3) there was no motive
to fabricate.

    The trial court ruled that the prior victim’s testimony was established
by clear and convincing evidence and admissible under section
90.404(2)(b). The court noted that the prior victim spontaneously reported
the incident to her mother, without any motive to fabricate and with no
improper influence. The court referred to the differences between the
allegations of the two girls—a one-time touching versus sexual intercourse
over a period of several years—but focused on the similarities between the
two victims. Both children were prepubescent females, the incidents were

                                     4
sequential in nature, not remote in time, and all occurred in their mothers’
respective bedrooms, when Pridemore was alone with the child, taking
advantage of his position of trust. Both incidents involved “vaginal
touching either by a penis or a finger.” The court discussed how Pridemore
gained access to the girls by virtue of his dating relationship with each of
their mothers. The court limited the collateral evidence at trial to the prior
victim’s testimony alone, so the prior incident did not become a feature of
the trial.

                             Trial and Verdict

   At trial, the State’s witnesses were the victim, the victim’s stepmother,
and the prior victim. A Boynton Beach detective interviewed Pridemore at
the police station. He did not admit to sexually assaulting the victim.

   Pridemore testified at trial. He said that the victim’s mother lived in the
same neighborhood where the prior victim’s mother resided, until she
moved. He denied inappropriately touching the victim or having sex with
her.

   The jury found Pridemore guilty as charged.

  The prior victim’s testimony was properly admitted pursuant to
                section 90.404(2)(b), Florida Statutes

   For years, the admissibility of other crimes, wrongs, or acts was
evaluated under section 90.404(2)(a), Florida Statutes, which provides:

      Similar fact evidence of other crimes, wrongs, or acts is
      admissible when relevant to prove a material fact in issue,
      including, but not limited to, proof of motive, opportunity,
      intent, preparation, plan, knowledge, identity, or absence of
      mistake or accident, but it is inadmissible when the evidence
      is relevant solely to prove bad character or propensity.

   This section “restate[d] the Florida law as determined by Williams v.
State,” 110 So. 2d 654 (Fla. 1959). Charles W. Ehrhardt, Florida Evidence
§ 404.9 (2012 ed.). In 2001, the Legislature added section 90.404(2)(b)1.,
which specifically addressed the admissibility of collateral offenses in a
case where the defendant is charged with “child molestation”:

      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 acts of child

                                      5
      molestation is admissible and may be considered for its
      bearing on any matter to which it is relevant.

Ch. 2001-221, § 1, Laws of Fla.

   Under the plain language of the rule, relevant collateral crime evidence
is admissible to corroborate a victim’s testimony “regardless of whether
the charged and collateral offenses occurred in the familial context or
whether they share any similarity.” McLean v. State, 934 So. 2d 1248,
1259 (Fla. 2006).

   However, in McLean, the Supreme Court narrowed the broad sweep of
section 90.402(2)(b)1. by reading the statute in conjunction with section
90.403, Florida Statutes (2005), which requires that the probative value of
relevant evidence be weighed against its potential for unfair prejudice. Id.
at 1251.     The Court resolved a due process challenge to section
90.404(2)(b) by applying section 90.403 considerations to ensure that the
door is not opened “to [the] introduction of any and all propensity evidence
in sexual molestation cases.” Id.

   Central to the analysis required by McLean is the notion of similarity
between the collateral act and the charged offense. In upholding the
constitutionality of the statute, the court noted that “[t]he similarity of the
collateral act . . . and charged offense is a critical consideration for the trial
court in conducting an appropriate weighing under section 90.403.” Id.
at 1259.

  The Court explained that the similarity between the two acts is
important in determining admissibility in two ways:

      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, Fla. Stat.). The Court concluded that “in both
familial and nonfamilial cases” involving child molestation, “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.” Id. at 1258. The court



                                        6
enumerated a non-exclusive list of factors a trial court should consider
when making a finding of similarity:

      (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. at 1262.

   Acts of child molestation are crimes of access and opportunity. The
child victim is “typically the sole eyewitness and corroborative evidence is
scant,” so that “[c]redibility becomes the focal issue.” Heuring v. State, 513
So. 2d 122, 124 (Fla. 1987), superseded by statute on other grounds as
stated in McLean, 934 So. 2d at 1259. Because the victim often knows the
perpetrator, “identity is not an issue.” Id. And, unlike cases involving
sexual crimes against adults, the victim’s consent cannot be at issue. In
a related context, the Legislature broadened the admissibility of child
hearsay in “response to the need to establish special protections for child
victims in the judicial system.” Conner v. State, 748 So. 2d 950, 959 (Fla.
1999) (describing legislative intent behind section 90.803(23), Florida
Statutes) (citation omitted).

   Against this legal backdrop recognizing the unique aspects of child
molestation crimes, cases applying the McLean framework to child
molestation cases have often focused on the similarity between means of
access while requiring less commonality between the charged offense and
the collateral crime.

    For example, in Stubbs v. State, 275 So. 3d 631 (Fla. 4th DCA 2019),
we emphasized the defendant’s means of access as the “significant linking
factor” between the charged and collateral crimes. Id. at 636. There we
held that collateral crime evidence was admissible where the defendant
gained access to his victims by exploiting “his role as a trusted religious
figure in the girls’ lives to gain trust and access and to nullify the girls’
objections.” Id. We listed similarities in how the defendant gained access
to the victims:

      All of the girls were members of the defendant’s church; [t]he
      defendant had a relationship of trust with each girl; [t]he
      defendant expressed that his conduct was justified through
      religious teaching or sexual education; [t]he defendant held a
      position of religious authority in each girl’s life, and each girl

                                      7
      believed that the defendant’s actions were sanctioned by God;
      [t]he defendant used his position in the church to gain access
      to the girls alone and to gain their acquiescence; [and] [t]he
      defendant was involved in the everyday decision making of
      each girl . . . .

Id. at 635.

    Similarly, in Aguila v. State, 255 So. 3d 522 (Fla. 3d DCA 2018), the
defendant accessed the victim and the collateral victim in similar ways.
Both molestations occurred within the “familial context,” where the
defendant engaged in a relationship with the victims’ mothers; both
victims were about the same age when the abuse began; the victims’
fathers were absent due to their incarceration; the victims did not have
good relationships with their mothers; both mothers had drug abuse
issues, and the mothers “became financially dependent on the defendant.”
Id. at 529. The Aguila court upheld the admission of the collateral crime
even though there was a twenty-year gap between that crime and the
charged crime. Id.; see also Peralta-Morales v. State, 143 So. 3d 483, 486
(Fla. 1st DCA 2014) (holding that collateral crime evidence was properly
admitted in defendant’s trial for molestation of his daughter even though
the collateral sexual acts were different from crime charged, where all prior
acts were committed against defendant’s biological daughters in his
house); Seavey v. State, 8 So. 3d 1175 (Fla. 2d DCA 2009) (finding
collateral crimes admissible where defendant molested young boys by
gaining their trust); Mendez v. State, 961 So. 2d 1088, 1091 (Fla. 5th DCA
2007) (holding that prior acts were properly admitted in trial for sexual
battery on a victim under 12 years old, where defendant had similar
relationship with both victims, he gained employment that gave him access
to young victims, he was a counselor to each and had custodial authority
over them at the time of the offenses, and the incidents both occurred in
the victims’ homes); Fincher v. State, 137 So. 3d 437 (Fla. 4th DCA 2014)
(lewd molestation case where defendant inappropriately touched victim
and collateral victims by bumping into them in either a Walmart or
Kmart). 3


3The greatest similarity disconnect in a reported case occurred in Donton v. State,
1 So. 3d 1092 (Fla. 1st DCA 2009). There, significant differences in the age,
gender, height and weight of the defendant’s victims, as well as differences in the
nature of the crime, did not preclude the court from finding sufficient similarity
between a collateral crime and a charged crime to admit the collateral evidence.
In Donton, the First District held that the collateral crime evidence of the
defendant “licking” and “touching” the vaginal area of a three-year-old was
admissible at a trial where the defendant was charged with a sexual battery on a

                                        8
   Where there is no common means of access between the charged crime
and collateral crime, some courts have been unwilling to find sufficient
similarity to admit the collateral crime under 90.404(2)(b), especially in
instances where the prior act was remote in time or where the charged
crime is less severe than the collateral crime.

    For example, in Pulcini v. State, 41 So. 3d 338 (Fla. 4th DCA 2010), the
defendant was tried and convicted of unlawful sexual activity with his
nephew’s sixteen-year-old girlfriend. Id. at 340–41. The trial court allowed
testimony of prior acts that took place nineteen to twenty years before the
alleged crime. Id. at 342. This court reversed, noting that “perhaps most
significantly, the incidents involving [the prior acts witness] were extremely
remote in time to the offenses charged in this case, occurring seventeen
years prior.” Id. at 345–46. However, the court also remarked that the
“[r]emoteness factor would be less significant when the sexual abuse is
generational or intrafamilial, and if the prior incidents were similar to the
current act.” Id. at 346, n.3. See Strohm v. State, 985 So. 2d 640, 642
(Fla. 4th DCA 2008) (seventeen years prior); Woodard v. State, 978 So. 2d
217, 220 (Fla. 1st DCA 2008) (seventeen years prior); Cann v. State, 958
So. 2d 545, 546 (Fla. 4th DCA 2007) (over ten years prior).

   In another category of cases, where the collateral act is more serious
than the charged crime, courts are likely to exclude the collateral evidence
as unsimilar and unfairly prejudicial under section 90.403. See, e.g.,
Taylor v. State, 256 So. 3d 950, 952 (Fla. 5th DCA 2018) (holding that
collateral crime evidence that the defendant had “forcefully inserted his
penis in [witness’s] vagina” was inadmissible where the defendant was
charged with unlawful touching); Corson v. State, 9 So. 3d 765 (Fla. 2d
DCA 2009) (holding that prior act of possible penile to anal contact was
inadmissible where the defendant was charged with touching the victim
between her legs).

   We conclude that there was no abuse of discretion in the trial court’s
admission in evidence of the incident involving the prior victim under
section 90.404(2)(b). See Zerbe v. State, 944 So. 2d 1189, 1193 (Fla. 4th
DCA 2006) (a trial judge’s ruling on the admissibility of collateral act
evidence will not be disturbed absent an abuse of discretion). Pridemore’s

male teenager with a mental defect by “penile union with, or penetration of the
victim’s anus.” Id. at 1093. The location of the crimes differed. The prior act
occurred in the bedroom of a house. Id. at 1097. The charged act happened in
the shower area of a juvenile facility. Id. The court applied a “relaxed standard
of admissibility” to the case because it categorized the defendant’s relationship to
the victims as “familial.” Id. at 1095. We do not include the case in the body of
the opinion because it appears to be an outlier.

                                         9
acts with the two prepubescent victims were close in time and sequential,
demonstrating an escalating level of criminality. The means of access was
identical—Pridemore obtained dating relationships with single mothers
with young daughters. He exploited his “familial” relationship to find time
alone with the girls and assault them in their mothers’ respective
bedrooms. The collateral act was not too remote in time—Pridemore
commenced a relationship with the victim’s mother soon after his
relationship with the prior victim’s mother ended. Nor was the collateral
crime more serious than the charged crime, so that its introduction into
evidence did not unfairly prejudice the defendant.

     The trial court properly admitted the victim’s suicide note

   Pridemore argues that the trial court erred by admitting the victim’s
suicide note over his hearsay objection. We hold that the trial court did
not abuse its discretion in admitting the note as an exception to the rule
against hearsay, pursuant to section 90.803(23), Florida Statutes (2018).
Platt v. State, 201 So. 3d 775, 777 (Fla. 4th DCA 2016).

   Section 90.803(23) sets forth the standard for admitting hearsay
statements of a child victim in sexual abuse cases. “For a hearsay
statement to be admitted under this section, the statement must meet two
specific reliability requirements: (1) the source of the information through
which the statement was reported must indicate trustworthiness; and (2)
the time, content, and circumstances of the statement must reflect that
the statement provides sufficient safeguards of reliability.” State v.
Townsend, 635 So. 2d 949, 954 (Fla. 1994).

   In addition to the factors enumerated in section 90.803(23)(a)1., the
court may consider other factors such as

      the statement’s spontaneity; whether the statement was made
      at the first available opportunity following the alleged incident;
      whether the statement was elicited in response to questions
      from adults; the mental state of the child when the abuse was
      reported; whether the statement consisted of a child-like
      description of the act; whether the child used terminology
      unexpected of a child of similar age; the motive or lack thereof
      to fabricate the statement; the ability of the child to
      distinguish between reality and fantasy; the vagueness of the
      accusations; the possibility of any improper influence on the
      child by participants involved in a domestic dispute; and
      contradictions in the accusation.

Id. at 957–58.

                                     10
    The trial court found that the suicide note was “spontaneous” and
“specific,” and that there was no improper influence or motive to fabricate,
since the note “was something the child wrote on her own and hid from
her stepmother, intending it to be a suicide note referencing Mr.
Pridemore’s molestation of her.”        The court determined that the
circumstances surrounding the note “absolutely indicate[d] its reliability.”
Although the second version of the note was written after her stepmother’s
discovery, the victim explained that she wrote down the allegations against
Pridemore “because she had to get it out.” She said she believed that no
one was going to look at the journal in her room, because it looked like a
regular notebook. The victim’s testimony at trial satisfies the requirement
of section 90.803(23)(a)2.a. A factual basis in the record supports the trial
court’s ruling.

    We similarly reject the argument that the note was unfairly prejudicial
under section 90.403. The victim’s participation at trial gave defense
counsel the opportunity to explore the motivation behind the diary. See
Bass v. State, 35 So. 3d 43, 46 (Fla. 1st DCA 2010) (finding no section
90.403 violation by the introduction of witnesses’ out-of-court statements,
“especially since the defense counsel was allowed to attack the credibility
of several of the witnesses at trial”).

               The Remaining Issues are Without Merit

    We summarily dispose of the remaining issues. There was no violation
of Faretta v. California, 422 U.S. 806 (1975). See Knight v. State, 770 So.
2d 663 (Fla. 2000); Monte v. State, 51 So. 3d 1196 (Fla. 4th DCA 2011);
Neal v. State, 142 So. 3d 883 (Fla. 1st DCA 2014). There was no reversible
error in the trial court’s conduct during jury selection, especially in light
of defense counsel’s difficulty in framing an unobjectionable question.
Defense counsel’s objection to a detective’s comment on Pridemore’s right
to remain silent was untimely and any error was harmless. The court did
not abuse its discretion in refusing to grant a mistrial after the
stepmother’s display of emotion on the witness stand.

   Affirmed.

WARNER and GERBER, JJ., concur.

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.




                                     11
