         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-4001
                 _____________________________

BERNARD COOLEY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.

                          May 28, 2019


WINSOR, J.

     The State charged Bernard Cooley with lewd and lascivious
molestation of a child under twelve, and lewd and lascivious
molestation of a child between twelve and sixteen. The victim as
to each count was Cooley’s daughter, who testified that Cooley had
molested her for several years, sometimes in Florida and
sometimes elsewhere. Cooley’s first trial ended with a hung jury,
but Cooley’s second trial led to a conviction and this appeal.

     Cooley presents two arguments on appeal. He first contends
that the trial court should have granted his motion to suppress
evidence about his post-arrest statements to a Child Protective
Investigator (CPI). He argues that the interview was a custodial
interrogation that required Miranda warnings. Second, Cooley
argues that the court should not have allowed the State to present
Williams rule evidence of certain instances of molestation that
occurred outside Florida. See Williams v. State, 117 So. 2d 473 (Fla.
1960); see also § 90.404(2)(b)1., Fla. Stat. As to the custodial-
interrogation issue, we conclude that the error, if any, was
harmless beyond reasonable doubt, see State v. DiGuilio, 491 So.
2d 1129, 1138 (Fla. 1986). As to the Williams-rule issue, we find
no abuse of discretion. We therefore affirm.

                                 I.

     After Cooley was arrested, the CPI interviewed him in jail.
According to the CPI’s testimony, it was her job—and her statutory
duty, see § 39.201, Fla. Stat.—to investigate allegations of child
abuse. She said reports of child sexual abuse are considered
emergencies, typically requiring a response from an investigator
within hours. In Cooley’s case, she explained, her office received a
report from law enforcement soon after Cooley was arrested. She
promptly went to the jail to interview him; her purpose, she said,
was to “find[] out the family dynamics in this situation.” She said
she was not acting at law enforcement’s direction, although she
acknowledged that she did ask Cooley questions about his case and
that she discussed the case with a law enforcement investigator.

     Before the interview, the investigator did not determine
whether Cooley had legal counsel. (The public defender had been
appointed by then.) And she did not advise Cooley of his right to
counsel or his right to remain silent. See Miranda v. Arizona, 384
U.S. 436 (1966). The interview took place in a small room at the
prison, and although the door was open, a prison guard stood in
the doorway throughout. Cooley later testified that he felt he could
not leave.

     The interview did not reflect well on Cooley. According to the
CPI, Cooley seemed “distraught” and “extremely nervous.” Cooley
did not directly admit to the abuse, but he did not deny it either.
He said he “simply doesn’t remember” any abuse. He admitted he
had a drinking problem and that sometimes he drinks too much
and sleepwalks or does things he does not later remember. He also
said that his daughter was a good girl and would not lie about
something like that, that his daughter “must be telling the truth,”
and that he “must have done these things.” He repeatedly referred
                                 2
to himself as a monster. (“I’m such a monster. But I don’t
remember and I don’t know.”).

     Before trial, Cooley moved to suppress evidence about
statements he made during this interview. He argued that his
interview constituted a custodial interview by an agent of law
enforcement. Although the court found that Cooley’s statements to
the CPI were made while Cooley was in custody, it concluded that
the CPI was not acting on behalf of law enforcement when she
conducted the interview. Accordingly, the court concluded,
Cooley’s Fifth Amendment rights were not implicated. The court
thus denied the motion to suppress, and the case proceeded to trial.

     The victim, by then thirteen, testified at trial that Cooley had
molested her for approximately six years. She said she finally told
her mother about the abuse in a February 2016 text message. She
explained that the night before she sent the text, Cooley had come
into her room and grabbed her buttocks over her clothing. He then
tried to touch her under her clothes, but she resisted, and he
eventually stopped. The victim also described several other
instances of abuse that took place in Florida. Then, after the court
gave jurors a Williams-rule instruction, the victim testified about
times Cooley had molested her when she was living in New Mexico,
around age seven, and when she lived in Georgia around age ten.

     The victim’s mother—Cooley’s wife—testified that soon after
she received the text disclosing the abuse, Cooley called her.
Cooley was in the house with the victim at the time; to get him
away from the victim, the mother asked Cooley to meet her at the
bank. With Cooley then out of the house, the mother went to the
house, gathered up the victim and her siblings, and went to police
to report everything. While she was there, Cooley called and texted
her several times. During at least one phone call, Cooley admitted
to the allegations. Phone records and texts were admitted into
evidence, and one of the texts said this:

    I love you. Always have. My Demons won. Your (sic) great
    you are awesome. Keep being that person and I hope I
    don’t and didn’t ruin it for the next person. Get that next
    person great guy. You deserve it. I’m sorry for hurting the
    family. I wanted to say bye to you. But I don’t deserve to
    speak to you. So I’m sorry. And. Good bye. Don’t allow me
                                 3
    to skew your vision of men. I’m a monster. If I had the
    strength of her, this would have never gone down. I wish
    we could [have] fixed this. But I understand. I love you
    and always will. Now it’s time to say good bye and not end
    it with I love you. I ruin that. So I’ll say good bye.

     Cooley’s niece then testified. After the court again gave a
Williams-rule instruction, the niece explained that when she was
around five she lived with Cooley, his wife, and their children. One
night while Cooley’s wife was out, Cooley put the other children to
bed, brought the niece into the living room, and began watching
pornographic videos. Cooley told the niece “to do what the people
on the computer were doing.” The niece complied in part until
Cooley’s wife returned home, leading Cooley to abruptly stop.

     The State also introduced a video of a forensic interview the
niece had given. In the video, the niece described the incident
consistent with her in-court testimony. The State then introduced
a video of a similar interview with the victim in this case. As with
the niece’s interview, the victim’s interview statements were
consistent with her in-court testimony.

     Cooley testified in his own defense, denying that he had
molested either child. He acknowledged that he said his demons
had won and that he was a monster, but he said that he was
referring to his drinking problem. He also said that some of the
text messages he sent his wife were part of his attempt to get her
to answer his calls and that he considered them to be a sort of
suicide note.

    After hearing all the evidence, the jury found Cooley guilty.
The court then imposed a thirty-year prison sentence.

                                II.

     Cooley first argues that his interview with the CPI constituted
a Miranda violation, requiring suppression of his statements. To
determine whether there was a Miranda violation in this context,
courts must first decide whether there was a custodial
interrogation that involved statements made to someone acting on
behalf of law enforcement. Moore v. State, 798 So. 2d 50, 52 (Fla.
1st DCA 2001) (citing Rhode Island v. Innis, 446 U.S. 291, 298

                                 4
(1980)); Lewis v. State, 754 So. 2d 897, 900 (Fla. 1st DCA 2000)
(“Where either the ‘custody’ or ‘interrogation’ prong is absent,
Miranda does not require warnings.”). It is clear that Cooley was
in custody during the questioning; the real question is whether the
court correctly determined that the CPI was not a state actor under
Miranda.

     In denying Cooley’s motion, the trial court relied in part on
Gresh v. State, in which this court noted that “the primary purpose
of such an investigation is to protect the child rather than to gain
probable cause to arrest.” 560 So. 2d 1266, 1268 (Fla. 1st DCA
1990). That may be true as to the primary purpose, but it does not
answer the question of whether the CPI in this case was acting as
a state agent. Moreover, the investigators’ purpose was not the
principal issue in Gresh; we held there was no custodial
interrogation: “They interviewed appellant at his place of work in
the parking lot and it is clear that appellant was free to refuse to
participate in the interview. The interview did not take place in an
inherently coercive custodial setting nor was there intimidation or
coercion of appellant.” Id.

     The trial court also considered State v. Contreras, in which the
defendant facing molestation charges sought to suppress the
victim’s statements to child protective investigators. 979 So. 2d
896 (Fla. 2008). The issue in Contreras was whether the interview
was testimonial (for Confrontation Clause purposes), and the court
noted that “the personnel of these [Child Protection Investigation]
units have been treated as members of the extended prosecutorial
team.” Id. at 905 (quoting John F. Yetter, Wrestling with Crawford
v. Washington and the New Constitutional Law of Confrontation,
Fla. B.J., Oct. 2004). But like Gresh, Contreras is factually
distinguishable: Law enforcement personnel were electronically
connected to the investigator during the interview, and they were
feeding questions in real time. Id. Our decision in Woods v. State,
which Cooley argues is controlling, is likewise factually
distinguishable. 538 So. 2d 122 (Fla. 1st DCA 1989). In Woods, the
defendant asked for an attorney and refused to talk to a police
detective. The detective then asked for a Department of Health
and Rehabilitative Services investigator “so that he could obtain
information for [the detective] or interview him for his purpose.”
Id. at 123. The detective then gave the HRS investigator keys to

                                 5
the locked interview room where the defendant was held. The
defendant made incriminating statements to the HRS
investigator, the investigator told the detective, and then the
detective and investigator returned and asked questions together.
Id. Under these circumstances, this court held that the HRS
investigator “was acting as an agent of law enforcement when he
improperly reinitiated interrogation of appellant shortly after he
had invoked his constitutional rights.” Id.

     Ultimately, we need not decide whether the trial court’s
decision to allow evidence from the CPI interview was error. The
harmless-error test still applies when there is a Miranda violation,
Deviney v. State, 112 So. 3d 57, 79 (Fla. 2013), and after a careful
review of the record, we conclude “that there is no reasonable
possibility that the error contributed to the conviction.” DiGuilio,
491 So. 2d at 1135. Several considerations lead to this conclusion.

     First, the remaining evidence was extensive and consistent.
The victim testified as to what happened, and the jury saw video
of her earlier interview, which featured a consistent description of
Cooley’s acts. Cooley’s niece, too, attested to similar acts, both
through her in-person testimony and her forensic interview, which
the jury watched. The mother testified that Cooley admitted the
molestation. And officers found Cooley in a hotel, where he
appeared distressed and immediately asked them how they found
him.

      Second, while the mother testified that Cooley confessed, the
CPI repeatedly said he did not confess to her. She said he did not
specifically deny the conduct but made clear that he did not admit
it either.

     Third, the most damaging points the CPI testified about were
duplicative of other, properly admitted evidence. The CPI testified
that Cooley repeatedly referred to himself as a monster, but that
fact was never disputed. Text messages put into evidence said the
same thing, and Cooley admitted in his own testimony that he
called himself that, although he explained it by saying he was
referring to his drinking. The CPI also testified that Cooley said
his daughter was a good girl who would not lie about such matters.
The testimony about Cooley’s expressing such a sentiment, while
surely damaging, was similar to text messages in which Cooley
                                 6
praised his daughter and maligned himself: “If I had the strength
of her, this would have never gone down.”; “I’m lost”; “I’m sick”;
“I’m a monster”; “I’m a loser.”

    After “not only a close examination of the permissible evidence
on which the jury could have legitimately relied, but an even closer
examination of the impermissible evidence which might have
possibly influenced the jury verdict,” we conclude that the error, if
any, was harmless. DiGuilio, 491 So. 2d at 1138.

                                 III.

     Cooley’s second argument is that the court should not have
permitted the victim to testify about certain uncharged acts,
specifically molestation that took place outside Florida. We review
only for an abuse of discretion. Whisby v. State, 262 So. 3d 228, 231
(Fla. 1st DCA 2018). Cooley does not argue that the evidence is
irrelevant. Cf. id. at 232 (noting that collateral-crime evidence can
be admissible to show propensity in certain sex-crime cases). Nor
does he argue that the evidence was inadmissible under the
relevant statute. See § 90.404(2)(b)1., Fla. Stat. (“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 molestation is admissible and may
be considered for its bearing on any matter to which it is
relevant.”). Cooley’s argument instead is that the court should
have found that the evidence’s “probative value [was] substantially
outweighed by the danger of unfair prejudice.” § 90.403, Fla. Stat.;
see also McLean v. State, 934 So. 2d 1248, 1260-61 (Fla. 2006)
(noting applicability of 403 balancing to collateral-crime evidence).

     We conclude that the trial court did not abuse its discretion.
Considering the similarity of the allegations of out-of-state acts
with the charged conduct; the fact that the victim was the same in
both (Cooley has not challenged on appeal the trial court’s separate
decision to allow collateral-crime evidence regarding the niece);
and the entirety of the record, we cannot say that any reasonable
judge would have excluded the evidence under section 90.403.

    AFFIRMED.

ROBERTS and RAY, JJ., concur.

                                  7
               _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and M.J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Virginia Chester Harris,
Assistant Attorney General, Tallahassee, for Appellee.




                             8
