           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D16-3949
                  _____________________________

KELLY LAMONT WHISBY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Steven B. Whittington, Judge.

                        December 18, 2018


WINOKUR, J.

     Although the State sought admission of collateral-crime
evidence under section 90.404(2)(a), Florida Statutes, we find
that it was admissible under section 90.404(2)(c). We therefore
affirm the judgment entered against Kelly Lamont Whisby. 1

                                 I.

     The State charged Whisby in an eight-count information
with armed kidnapping with intent to commit sexual battery,
three counts of sexual battery, and other offenses. The State
alleged that Whisby kidnapped the victim, S.C., at gunpoint and

    1   We reject Whisby’s other arguments on appeal.
forced her into his car. Whisby drove S.C. to various locations
where he forced her to perform oral sex and intercourse. Whisby
then led police in a high-speed chase that ended when Whisby
abandoned his car and forced S.C. to hide under a shed with him.
Whisby was found by a police dog and arrested.

     Before trial, the State filed a notice of intent to rely on
collateral-crime evidence pursuant to section 90.404(2)(a), Florida
Statutes. The collateral-crime evidence showed that Whisby
committed a sexual battery less than twenty-four hours before he
kidnapped S.C. The State proffered the testimony of the victim of
the prior sexual battery, W.W., who testified that Whisby
kidnapped her at gunpoint and forced her into her car that
Whisby had previously stolen. Whisby then forced W.W. to
perform oral sex and then drove to a nearby park where he forced
her to have intercourse.

     The trial court found that the State proved the prior sexual
battery by clear and convincing evidence. The court recounted
several similarities between the collateral crime and the charged
crime, noting that both incidents involved women who had
previously been in intimate relationships with Whisby, that the
same car and gun were used, and that Whisby used a tissue or
napkin to clean either the victim or himself after each incident.
As a result, the court found the prior sexual battery strikingly
similar to the charged offenses and “relevant to establish a
material fact at issue, including, but not limited to, proof of
motive and opportunity.” 2 The trial court also found that “the
probative value of [W.W.’s] testimony [was] not substantially
outweighed by the danger of unfair prejudice.” As such, the court
ruled that the State would be permitted to introduce the
collateral-crime evidence.


    2 The court did not explain how evidence of Whisby’s sexual
battery upon W.W. provided him with the motive or with the
opportunity to commit a sexual battery upon S.C., or whether the
crime upon W.W. was relevant to Whisby’s motive or opportunity
in some other sense. This is a primary reason why we analyze
this case below under section 90.404(2)(c) rather than section
90.404(2)(a).

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     At trial, W.W. testified as to the prior sexual battery. During
its rebuttal closing argument, the State argued that W.W.’s
testimony corroborated S.C.’s testimony and the other evidence of
the charged offenses. The jury found Whisby guilty as charged of
armed kidnapping with intent to commit sexual battery, three
counts of sexual battery, and other offenses.

                                II.

     A trial court’s decision to admit collateral-act evidence is
reviewed for abuse of discretion. Goggins v. State, 211 So. 3d
1100, 1103 (Fla. 1st DCA 2017) (citing Easterly v. State, 22 So. 3d
807, 814 (Fla. 1st DCA 2009)). Similar fact evidence of other
crimes 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.”
§ 90.404(2)(a), Fla. Stat. The State is required to give notice to
defense counsel of its intention to admit such evidence.
§ 90.404(2)(d), Fla. Stat. Additionally, similar fact evidence of
other crimes is subject to exclusion under the balancing test of
section 90.403, Florida Statutes, and cannot become the feature
of the trial. Truehill v. State, 211 So. 3d 930, 945 (Fla. 2017).

     Accordingly, this Court has held that prior to admitting
collateral-crime evidence, a trial court must determine whether
the defendant committed the collateral crime, whether the crime
is similar enough to be relevant, whether the crime is too remote
in time to be relevant, and whether its prejudicial effect
substantially outweighs its probative value. Vice v. State, 39 So.
3d 352, 355 (Fla. 1st DCA 2010) (citing Robertson v. State, 829
So. 2d 901, 907-08 (Fla. 2002)). The State must prove that a
collateral crime occurred by clear and convincing evidence before
it may be admitted. See State v. Norris, 168 So. 2d 541, 543 (Fla.
1964); Harrelson v. State, 146 So. 3d 171, 173 (Fla. 1st DCA
2014).

    This Court asked for supplemental briefing on the issue of
whether the trial court’s admission of Whisby’s prior sexual
battery could be affirmed pursuant to section 90.404(2)(c), Florida
Statutes. An appellate court may affirm “if a trial court reaches
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the right result, but for the wrong reasons.” Dade Cty. Sch. Bd. v.
Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999). Regardless
of whether the trial court properly admitted the prior sexual
battery under section 90.404(2)(a), we conclude that it was
admissible under section 90.404(2)(c).

                                III.

     In 2011, the Florida Legislature enacted section 90.404(2)(c)
providing that “[i]n a criminal case in which the defendant is
charged with a sexual offense,[3] evidence of the defendant’s
commission of other crimes, wrongs, or acts involving a sexual
offense is admissible and may be considered for its bearing on
any matter to which it is relevant.” While evidence of collateral
crimes is generally inadmissible under section 90.404(2)(a) if it is
relevant “solely to prove bad character or propensity,” evidence of
a collateral sexual offense “may be considered for its bearing on
any matter to which it is relevant.” § 90.404(2)(c), Fla. Stat.
(emphasis added).

     Due to its recent addition to the Evidence Code, Florida
courts have not addressed the admissibility standards of section
90.404(2)(c). However, this section sets forth admissibility
standards that are substantially identical to those in section
90.404(2)(b), Florida Statutes, which concerns admissibility of
collateral crimes of child molestation. 4 The Florida Supreme
Court has articulated requirements for admitting collateral-crime
evidence pursuant to section 90.404(2)(b). McLean v. State, 934
So. 2d 1248 (Fla. 2006). Because subsection (2)(b) sets forth

    3  Section 90.404(2)(c)2., Florida Statutes, defines “sexual
offense” to include the crime of sexual battery as codified in
section 794.011, Florida Statutes. Whisby was charged with three
counts of sexual battery pursuant to section 794.011(3).
    4 Section 90.404(2)(b), Florida Statutes, provides that “[i]n 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.”

                                 4
requirements for the admissibility of collateral acts of child
molestation that are identical to the requirements for the
admissibility of collateral acts of a sexual offense in subsection
(2)(c), we apply the McLean standards here.

     The McLean court held that the admission of such evidence
does not violate due process when applied in cases where identity
is not at issue. 934 So. 2d at 1251. Specifically, it found that “due
process is satisfied by weighing the probative value of the
evidence of prior acts of child molestation against its potential for
unfair prejudice, which is compelled by section 90.403, Florida
Statutes.” Id. The court also set forth a non-exclusive list of
factors that a trial court should consider when balancing the
collateral crime evidence pursuant to section 90.403:

      (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.

      Thus, collateral-crime evidence of a sexual offense is
admissible even if offered to show propensity. See Rutledge v.
State, 1 So. 3d 1122, 1129-30 (Fla. 1st DCA 2009) (acknowledging
that evidence of a collateral crime may be admissible to show
propensity under section 90.404(2)(b)). However, the State must
still demonstrate that the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice,
confusion of issues, misleading the jury, or needless presentation
of cumulative evidence. § 90.403, Fla. Stat. We consider the
factors set forth in McLean in conducting this analysis.

                                IV.

     Whisby argues that the sexual battery of W.W. cannot be
affirmed under section 90.404(2)(c) because it is not similar to the
charged offense. We disagree. The incidents occurred less then
twenty-four hours from each other and in almost identical

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fashion: Whisby forced W.W. and S.C. into his car at gunpoint
and drove them to various locations while coercing them to
engage in sexual acts, and the incidents concluded with Whisby
using a tissue or napkin to either clean them or himself.
Additionally, Whisby used the same vehicle and gun to commit
both acts. Regardless of whether the crimes are “strikingly
similar,” which would permit admission under section
90.404(2)(a), see Robertson v. State, 829 So. 2d 901, 909 (Fla.
2002), they are similar enough to support admission under the
analysis outlined in McLean.

     The trial court found the prior sexual battery relevant and
similar to the charged offenses. The State briefly mentioned the
collateral crime in its opening statement and again in its rebuttal
closing argument, arguing how it corroborated the evidence of
Whisby’s charged offenses. Additionally, W.W. was the only
witness who testified about the collateral crime. The State’s other
eleven witnesses, including S.C., testified as to Whisby’s charged
offenses and how forensic evidence, notably DNA, linked Whisby
to the crimes. Thus, the collateral-crime evidence did not
“transcend the bounds of relevancy” and become “an assault on
the character of [Whisby].” Durousseau v. State, 55 So. 3d 543,
551 (Fla. 2010) (quoting Williams v. State, 117 So. 2d 473, 475
(Fla. 1960)). Therefore, the probative value of Whisby’s prior
sexual battery was not substantially outweighed by the danger of
unfair prejudice and it did not become a feature of the trial.

     Finally, Whisby relies on Robertson to argue that the
admission of the disputed evidence cannot be affirmed under
section 90.404(2)(c) because that issue was never addressed
below. In Robertson, the Florida Supreme Court reversed the
district court’s finding that the State’s impeachment of the
defendant during trial with a prior bad act could have been
affirmed as properly admitted collateral-crime evidence. 829 So.
2d at 907. The court emphasized that the “tipsy coachman
doctrine,” permitting affirmance on appeal even if the correct
argument was not made below, requires “support for the
alternative theory or principle of law in the record before the trial
court.” Id. Since the trial court did not make the pre-trial
determinations required for admission of collateral-crime
evidence, “the record did not permit the Third District to affirm

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the trial court’s admission of collateral crime evidence . . . .” Id. at
909.

     The record in this case is different. Unlike Robertson, the
State filed a notice of intent to offer collateral-crime evidence.
W.W. proffered testimony at a pretrial hearing, defense counsel
cross-examined her, and both sides argued whether the evidence
should be admitted. The trial court found that the prior sexual
battery was relevant and that it was not unduly prejudicial. This
is essentially the same analysis that the trial court would have
conducted if the State sought to introduce the collateral-crime
evidence under section 90.404(2)(c). Therefore, the record is
amply sufficient to allow us to affirm the admission of the
evidence under section 90.404(2)(c) by resort to the tipsy
coachman doctrine.

                                  V.

    The collateral-crime evidence of Whisby’s sexual battery of
W.W. was not only relevant, but also highly probative of his
charged offenses. While the trial court admitted the evidence
pursuant to section 90.404(2)(a), we find that there is a sufficient
record to affirm its admission under section 90.404(2)(c). As a
result, the trial court did not abuse its discretion in admitting
evidence of the prior sexual battery.

    AFFIRMED.

OSTERHAUS and M.K. THOMAS, JJ., concur.

                  _____________________________

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


Andy Thomas, Public Defender, Joanna A. Mauer, Assistant
Public Defender, and Kathleen Pafford, Assistant Public
Defender, Tallahassee, for Appellant.


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Pamela Jo Bondi, Attorney General, Robert Charles Lee,
Assistant Attorney General, and Steven Woods, Assistant
Attorney General, Tallahassee, for Appellee.




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