       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                         VINCESON DAWSON,
                             Appellant,

                                   v.

                         STATE OF FLORIDA,
                              Appellee.

                            No. 4D18-1586

                            [July 10, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Barry M. Cohen, Senior Judge; L.T. Case No.
502017CF005156AXXXMB.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Joseph D. Coronato,
Jr., Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

   Vinceson Dawson (“Defendant”) appeals his conviction and sentence for
one count of trafficking in oxycodone in an amount greater than 25 grams
but less than 100 grams and one count of possession of cocaine. Finding
merit in Defendant’s argument that the multiple references to collateral
crimes evidence deprived him of a fair trial, we reverse and remand for a
new trial.

   On the date of Defendant’s arrest, police were conducting surveillance
of a house in Boynton Beach as they waited to execute a search warrant
on the house. Defendant resided at the house. Officers observed
Defendant park his gold Buick in the driveway of the house next door to
the target house. Shortly thereafter, a male (“the passenger”) pulled up
into the same driveway and entered the passenger side of Defendant’s
vehicle. The passenger did not appear to have any items in his hands as
he entered the vehicle.
    Within seconds of the passenger entering the vehicle, several officers
converged upon the vehicle. One of the officers observed Defendant sitting
in the driver’s seat with a yellow prescription pill bottle on his lap. A search
of the vehicle revealed a baggy containing crack cocaine, cash, two cell
phones, and prescription pill bottles and baggies containing oxycodone
pills. In total, officers recovered from Defendant’s vehicle approximately
250 oxycodone pills with a net weight of 33.766 grams. None of the items
retrieved from the vehicle were tested for fingerprints or DNA.

   Defendant denied having any knowledge about the contraband, cash,
or cell phones found inside the vehicle and further denied having a pill
bottle on his lap when officers converged on the vehicle. Defendant
explained that although he owned the vehicle, he often allowed other
people to use the vehicle. The passenger, in turn, insisted that he never
observed a prescription pill bottle on Defendant’s lap when officers
converged on the vehicle.

   At trial, the prosecutor and three of the State’s witnesses referred to the
fact that Defendant’s house was under surveillance, that a search warrant
related to narcotics had been issued, and that Defendant was the target.
In each instance, defense counsel objected and moved for mistrial on the
basis that the references were irrelevant and improperly inferred
Defendant had previously engaged in illegal drug activity. Although the
court sustained each objection, it denied the motions for mistrial and twice
provided curative instructions.

    The first reference occurred when the prosecutor asked one of the
narcotics officers whether “an investigation [was] commenced which
ultimately led to a lawful search of Mr. Dawson’s residence?” Defense
counsel objected before the officer could answer the question. The officer
was permitted to testify, however, that a lawful search was ultimately
conducted. The second reference occurred when a different officer testified
that he was dispatched on the day in question to assist in the execution of
a narcotics search warrant. The third reference occurred when a SWAT
officer testified that he and his team were waiting nearby to execute the
search warrant and “got the signal to move in when the defendant had
arrived [and] we proceeded to the target.”

   During jury deliberations, the jury submitted the following question:
“What was the warrant for and what address was the warrant to be
executed at?” The court responded by telling the jury that the answer to
the question must be found in the evidence presented at trial. The jury
ultimately found Defendant guilty of trafficking in oxycodone and
possession of cocaine as charged.

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    Defendant thereafter moved for new trial, arguing that the court erred
in denying his motions for mistrial based upon the improper references to
the search warrant. Defendant maintained that the cumulative references
to the search warrant insinuated that Defendant had previously engaged
in illegal drug activity which led to the issuance of a warrant to search his
house. Moreover, although the court twice provided curative instructions,
the instructions were clearly insufficient in light of the jury’s question.
Despite acknowledging that Defendant had “a very good appellate point,”
the court denied the motion. This appeal follows.

   It is well established “that mistrial is a drastic remedy to be granted
only when an error is so prejudicial as to vitiate the entire trial, and only
when necessary to ensure the defendant receives a fair trial.” Jones v.
State, 128 So. 3d 199, 201 (Fla. 1st DCA 2013). One way in which a
criminal defendant is prejudiced to the extent of necessitating a mistrial is
when irrelevant collateral crimes evidence is erroneously admitted at trial.
Id. The reason being that “the erroneous admission of irrelevant collateral
crimes evidence is presumed harmful error because of the danger that a
jury will take the bad character or propensity to crime thus demonstrated
as evidence of guilt of the crime charged.” Robertson v. State, 829 So. 2d
901, 913–14 (Fla. 2002) (citations and internal quotation marks omitted).

    The holding in Jones is instructive. In that case, the defendant was
charged with first-degree murder and armed robbery with discharge of a
firearm. Jones, 128 So. 3d at 200. During trial, the jury was informed on
multiple, separate occasions that the defendant had previously been
incarcerated and placed on probation and was a convicted felon. Id. The
defendant objected to each reference and moved for mistrial, which the
court denied. Id. During deliberations, the jury asked whether the
defendant was on probation when he turned himself in and, if so, for what.
Id. The court, in an attempt to cure the jury’s consideration of the
improper references to collateral crimes, instructed the jury to disregard
any implication that the defendant had been convicted of unrelated crimes
in the past. Id. The defendant was ultimately found guilty as charged and
sentenced to two concurrent life sentences. Id. at 200–01.

   In holding that the trial court erred in denying the defendant’s motions
for mistrial, the First District reasoned that “the multiple improper
references to [the defendant’s] prior convictions and the jury’s question
about them establish that [the defendant] was severely prejudiced in his
defense.” Id. at 201 (emphasis added). Moreover, the court held that the
curative instruction was insufficient to “ameliorate the cumulative and
obvious impact of the improper references.” Id.; see also Melehan v. State,

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126 So. 3d 1118, 1125 (Fla. 4th DCA 2012) (recognizing that although a
curative instruction will generally obviate the necessity of a mistrial, “there
are times when a curative instruction is not sufficient ‘to unring the bell,’
and a new trial is required” (quoting Graham v. State, 479 So. 2d 824, 826
(Fla. 2d DCA 1985))); Morton v. State, 972 So. 2d 1088, 1089 (Fla. 5th DCA
2008) (“When a jury is improperly informed of a defendant’s prior criminal
activity, a curative instruction has frequently been found to be insufficient
to preserve a defendant’s right to a fair trial.”).

   In the present case, although the prosecutor and witnesses did not
directly state that Defendant was involved in prior criminal activity like the
witnesses in Jones, the multiple improper references to the search warrant
had the effect of informing the jury that Defendant’s residence was the
subject of illegal drug activity and that Defendant was the “target.” The
clear implication being that Defendant had previously engaged in illegal
drug activity sufficient to justify a search warrant. Moreover, despite the
two curative instructions, the multiple references to the search warrant
clearly had an impact on the jury as evidenced by the question posed
during deliberations.

    The State nonetheless argues that the references to the search warrant
were proper because they were inextricably intertwined with the crimes
charged and necessary to demonstrate that that the seizing officers were
in a position where they had a legitimate right to be. We disagree because
it was unnecessary to inform the jury that Defendant’s residence was the
subject of a narcotics search warrant or that Defendant was the “target.”

   In order for collateral crimes evidence to be “inextricably intertwined,”
the evidence must be “necessary to (1) adequately describe the deed; (2)
provide an intelligent account of the crime(s) charged; (3) establish the
entire context out of which the charged crime(s) arose; or (4) adequately
describe the events leading up to the charged crime(s).” Dorsett v. State,
944 So. 2d 1207, 1213 (Fla. 3d DCA 2006) (citations and internal
quotation marks omitted).

   Here, it was entirely unnecessary to inform the jury that Defendant was
the target of a narcotics search warrant in order to establish the entire
context out of which the charged crimes arose or to show a logical
sequence of events leading up to Defendant’s arrest. The State could have
simply informed the jury that officers were executing a search warrant
when they observed Defendant in the driveway of the adjacent house. See
Kates v. State, 41 So. 3d 1044, 1046 (Fla. 1st DCA 2010) (holding that
“even if evidence of an uncharged crime is inextricably intertwined with
the charged offense and is thus admissible to establish the entire context

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of the crime, unnecessary details must be excluded”). Although evidence
of the search warrant was certainly relevant to explain the officers’
presence at the scene, the details of the warrant were irrelevant and more
prejudicial than probative. See id.

   Alternatively, the State argues that the references to the search warrant
were harmless because, by asking “[w]hat was the warrant for and what
address was the warrant to be executed at,” the jury evidently did not
connect Defendant to the search warrant. Even if we were to assume that
the jury did not directly connect Defendant to the search warrant, the fact
remains that the jury clearly considered the search warrant during its
deliberations. Under these circumstances, it is simply impossible to
conclude beyond a reasonable doubt that the jury’s verdict was not swayed
by the improper references to the search warrant. See O’Connor v. State,
835 So. 2d 1226, 1232 (Fla. 4th DCA 2003).

   Based upon the foregoing, the multiple references to the search warrant
were improper and severely prejudiced Defendant as evidenced by the
jury’s question about the search warrant. Accordingly, Defendant is
entitled to a new trial.

   Reversed and remanded for new trial.

LEVINE, C.J., and KUNTZ, J., concur.

                           *           *       *

   Not final until disposition of timely filed motion for rehearing.




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