          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-754
                 _____________________________

ADAM FRASCH,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Leon County.
James C. Hankinson, Judge.

                       September 25, 2019


PER CURIAM.

     A jury convicted Appellant of murdering his wife. He is
serving a life sentence in prison for first-degree murder, and this
is his direct appeal. He asserts the trial court reversibly erred in
three respects: (1) by denying Appellant’s motion for new trial
without conducting an evidentiary hearing; (2) by allowing the
State to introduce hearsay evidence; and (3) by denying
Appellant’s motion to withdraw a formerly-exercised peremptory
challenge. After careful consideration, we reject Appellant’s
arguments and affirm his judgment and sentence. 1


    1  Judge Winokur was substituted on the panel after Judge
Winsor was appointed to the federal bench, and has viewed the
oral argument video.
    (1) Denial of Motion for New Trial.

    We review the trial court’s ruling on the new-trial motion for
abuse of discretion. Tunidor v. State, 221 So. 3d 587, 603 (Fla.
2017). “In order to demonstrate abuse, the nonprevailing party
must establish that no reasonable person would take the view
adopted by the trial court.” Id. (quoting Stephens v. State, 787 So.
2d 747, 754 (Fla. 2001)).

     Appellant alleged a Brady 2 violation as grounds for a new
trial. To establish a Brady violation, Appellant had to show the
evidence was favorable to him, either because it was exculpatory
or because it was impeaching; the State suppressed the evidence,
either willfully or inadvertently; and prejudice resulted. Floyd v.
State, 902 So. 2d 775, 779 (Fla. 2005) (citing Carroll v. State, 815
So. 2d 601, 619 (Fla. 2002)). The alleged Brady violation involved
a statement purported to be from the victim’s family, apparently
in Madagascar, the victim’s home country. Evidence at trial
indicated that the victim had no family in the United States, and
that her family had never visited her here. At sentencing, the
prosecutor explained that the family statement was unsigned, had
been roughly translated from the original language, and the family
wanted it to be read at sentencing. Without objection or comment
from the defense, the prosecutor read the statement into the
record, as follows:

        For us, the Frasch – well, it says, For us, the Samira
    family [referencing the victim’s first name], we hold
    [Appellant] responsible for the death of Samira.
    According to Samira, she was very afraid that [Appellant]
    would hurt her, because she had noticed the presence of
    someone prowling in their home nights before his (sic)
    death.

        As [Appellant] came to see the house, certainly she
    had to tell him her fears. So, why did [Appellant] not do



    2 Brady v. Maryland, 373 U.S. 83 (1963) (recognizing
prosecutors’ obligation to disclose material evidence).

                                 2
    anything to avoid the worst? At least he would have
    checked the surveillance cameras in their home.

        Why was Samira not with him on the day of her
    death when they went to the beach? Samira would not
    have accepted that [Appellant] was busy. We all know
    that [Appellant] had abducted their two girls and left
    with his mistress, so why the day of her death did
    [Appellant] supposedly meet [the mother of one of his
    other children] en route before going to the beach?

         Samira’s body was found in the pool. Certainly, it
    does not – it was not there to swim that day if she would
    part with her children and her husband at the beach. Why
    did [Appellant] rush to cremate the body of Samira?

        There are so many that lead us to say that
    [Appellant] is responsible for the murder of Samira.
    Whether he murdered her or he is the sponsor. And we
    are certain that he could never take care of the two
    daughters he had with Samira.

     Appellant argued below that he was entitled to an evidentiary
hearing on his Brady claim. He argued that the family statement
should have been disclosed, was favorable to him and would have
resulted in a different verdict, he could not have discovered it
earlier, and he was prejudiced by not having received it. The trial
court declined to hold an evidentiary hearing, explaining its ruling
as follows:

    The defense cites to an offhand comment in a very
    confused, rambling dissertation from some “family
    member.” This statement was a rough translation. It is
    unlikely that the “family member” even resides in the
    United States and, therefore, is not even available to be
    subpoenaed. There is nothing suggesting there is
    undisclosed information that would have resulted in a
    different verdict.

    Appellant argues that the family statement might have been
mis-translated, and that it is not clear who wrote it or where the
author(s) lived. His primary substantive claim is that if he could
                                 3
have investigated the reference to a prowler in the marital home,
he could have developed an argument that someone else murdered
the victim.

     We conclude that the trial court did not abuse its discretion in
rejecting Appellant’s arguments. The unanswered questions about
the family statement leave it worthless as evidence or as a source
of evidence. Appellant does not argue that he definitely or even
likely could have found answers to all of the unknowns about the
statement, nor that those answers would favor him. The statement
is not favorable to Appellant, as it clearly blames him for the
victim’s death and asserts that the victim was afraid of him
primarily, not of a prowler.

     Appellant’s claim that he could have developed an unknown
prowler as the real killer is speculative, and he could have
discovered any video evidence earlier. If the marital home had a
video security system, as the statement indicates and as would be
expected in the high-end home of a very wealthy family in a high-
end, gated subdivision, Appellant as owner and former occupant of
that home would have known that all along, and could have
obtained any relevant surveillance footage and images in the
course of preparing his defense. What he might have obtained
would not necessarily have benefited him. Further, at trial,
Appellant did argue that someone else killed the victim, including
a landscaper who discovered the victim’s body and incorrectly
testified that he was at the house with the victim and children the
day before the murder. Appellant also argued at trial that because
doors to the home were found to be unlocked on the morning the
victim’s body was discovered, someone else could have accessed the
house and the victim. The jury rejected his arguments, as did the
trial court. We find that the trial court did not abuse its discretion
in rejecting this argument for a new trial.

    (2) Admission of Evidence.

     We review a trial court’s ruling on the admissibility of
evidence for abuse of discretion, but whether a statement falls
within the statutory definition of hearsay is a question of law
reviewed de novo. Powell v. State, 99 So. 3d 570, 573 (Fla. 1st DCA
2012).

                                  4
     The trial court allowed the State to introduce testimony of the
victim’s personal assistant, who claimed that he heard a heated
conversation that the victim put on speakerphone. He heard the
victim say to the other person, “You are my husband”; and heard
the other person say, “I will kill you.” Appellant argues, as he did
below, that the witness’s identification of Appellant as the other
person on the phone was hearsay because it was introduced for the
truth of the assertion; and that the death threat, even if an
admission under section 90.803(18) of the Florida Statutes, was
predicated on the inadmissible hearsay, and thus both statements
should have been excluded.

     The trial court rejected both parts of Appellant’s argument.
The court ruled that “You are my husband” was not hearsay
because it was not being offered for the truth of the matter
asserted—that is, not to establish marital status—but rather as
evidence of the identity of the other person. Even if that ruling was
erroneous, however, we reject the argument that it entitles
Appellant to a new trial. The victim’s assertion, in context, would
be expected to draw a denial if it were not true, and the other
speaker’s failure to deny being the victim’s husband can be deemed
an adoptive admission by Appellant. See Hernandez v. State, 979
So. 2d 1013, 1016–17 (Fla. 3d DCA 2008) (relying on Globe v. State,
877 So. 2d 663, 672-73 (Fla. 2004), for rule that another
individual’s statements are admissible as defendant’s adoptive
admissions where the context indicates defendant could have been
expected to deny the statements if they were untrue).

     More importantly, taken in full context, we cannot conclude
that any error was prejudicial. See State v. DiGuilio, 491 So. 2d
1129, 1135 (Fla. 1986) (“The harmless error test . . . places the
burden on the State, as the beneficiary of the error, to prove beyond
a reasonable doubt that the error complained of did not contribute
to the verdict, or, alternatively stated, that there is no reasonably
possibility that the error contributed to the conviction.”). The
victim’s statement that “You are my husband” was not the only
indicator that Appellant was the other person on the call. The
witness also testified that the nature of the entire conversation
supported the conclusion that it was between the victim and
Appellant. Defense counsel impeached this witness by eliciting his
admissions that he had only worked for the victim for about two

                                 5
weeks and had never seen or heard Appellant. The jury was free
to accept or reject the testimony.

     Appellant cannot demonstrate that this testimony alone made
any difference in the outcome of his trial. Substantial additional
evidence supported the verdict, including, but not limited to, the
following. The parties had a tumultuous and even violent
relationship, which Appellant did not dispute; he admitted they
fought frequently. The victim had obtained a domestic-violence
injunction against Appellant, and had recently been awarded the
primary marital house and custody of the children in contentious
divorce proceedings. Appellant also admitted they had argued the
night before the murder. This was substantiated by video recorded
outside a car service location where the couple stopped to pick up
the victim’s vehicle after having spent the day visiting multiple
additional homes owned by Appellant so the victim could
determine whether any of Appellant’s girlfriends had disturbed or
taken the victim’s belongings. Video from the subdivision entry
gate then showed Appellant’s car following the victim’s car into the
neighborhood late on the night before the murder. Appellant
admitted the couple had spent most of the night fighting, including
about other women. The subdivision gate video then showed
Appellant’s car leaving a few hours before the victim’s body was
found.

     The victim’s dead body was found at the bottom of the marital
home’s swimming pool. Even Appellant admitted the victim could
not swim. She had significant blunt trauma injuries to her head
and a massive skull fracture, which the medical examiner testified
could not have come from tripping and falling, nor from a single
blow with a fist. The victim also had bruising on her arms and
hands. Appellant was much larger than the victim, and had been
training as a boxer for several months before the murder.
Appellant’s DNA was under the victim’s fingernails. Appellant had
a fresh scratch on his face the day of the murder, and injuries to
his hands. He claimed at first that the victim had been drinking
heavily that night, but toxicology results showed that claim to have
been a complete lie. The autopsy indicated the victim was alive,
but likely incapacitated from her head injuries, when her body
entered the pool.


                                 6
     In addition, Appellant’s cellmate—whom the defense
impeached with evidence of some forty prior felony convictions—
testified that Appellant admitted to the killing and provided
details consistent with the evidence. Specifically, the cellmate
testified that Appellant said he hit the victim with a golf club and
threw her in the pool. The victim’s DNA was found on a golf club
at the home.

     The jury also heard substantial evidence of Appellant’s post-
murder actions that would support a guilty verdict. At 7:30 the
morning of the murder, a neighbor heard a car alarm go off at the
Frasch home and saw someone in a red shirt loading up the back
of a dark SUV—the type and coloring of Appellant’s vehicle. The
subdivision gate video showed a vehicle matching the appearance
of Appellant’s car leaving at 8:00 the morning of the murder.
Appellant admitted he took the two children, of whom he did not
have custody, to Panama City the morning of the murder. After a
friend called and told Appellant that the victim had been found
dead in the pool, Appellant left voice mails for the victim asking
her to call him—but he did not call law enforcement, start back to
Tallahassee, or otherwise attempt to confirm her status. Also after
having been told that his wife was dead, Appellant called a man
who performed maintenance on one of Appellant’s boats in south
Florida and said that “a serious problem” had come up. While being
interviewed by law enforcement later that same day, Appellant
knew and related details about the scene around the pool that
could not have occurred until immediately before the victim’s
death, and that law enforcement had not told him.

     It was for the jury to weigh all of this evidence of Appellant’s
guilt, which was voluminous and from multiple sources. As such,
even if the personal assistant’s testimony about specific words
spoken on one phone call was improperly admitted, any error was
harmless.

    (3) Denial of Belated Withdrawal of Peremptory Challenge.

    We review for abuse of discretion the trial court’s denial of a
motion to withdraw a formerly-exercised peremptory strike.
McCray v. State, 220 So. 3d 1119, 1122 (Fla. 2017). The Florida
Supreme Court in McCray rejected a blanket rule prohibiting a
belated withdrawal of a peremptory challenge, recognizing that it
                                 7
may be appropriate in “rare circumstances.” Id. at 1126 (“[T]here
may be rare circumstances where the withdrawal of a peremptory
challenge after the party has exhausted all peremptory challenges
may be appropriate.”). The court also recognized the potential of
misusing this “rare” possibility for improper gamesmanship. Id.

     On the facts of this case, we conclude the trial court did not
abuse its discretion. The defense used the sixth of its ten
peremptory strikes against a prospective juror. Jury selection
continued until five jurors had been selected. The defense then
asked the trial court to allow it to withdraw its strike of the earlier
juror, and instead use that strike against a new prospective juror,
which would have made the earlier juror the sixth and final juror
other than alternates. The trial court asked the defense for an
explanation, noting that the belated withdrawal would deprive the
prosecution of its ability to exercise strategic decisions on jurors
already seated. Defense counsel argued that he had erroneously
thought the earlier juror had previously served on a jury and
struck her for that reason, but it turned out he was mistaken. The
prosecutor undermined that stated defense rationale, pointing out
that two other jurors whom the defense had accepted had
previously served on juries. The trial court declined to allow the
belated back-strike, reasoning as follows:

         [T]he problem is it changes the strategy significantly.
    I mean, if it was just the last strike, there's no question I
    would let you go back and change, but to let it go as far as
    we did and then change. ... I’m not going to allow you to
    withdraw your strike. I just think it’s so late in the game.
    I know how attorneys try to develop a game plan down
    the road and I would just be letting you change the game
    plan. I just – I don’t think that would be fair. I’m not
    aware of any law on the subject, one way or another, so
    I’m not going to allow you to withdraw the strike at this
    point in time.

     The trial court researched the issue during a subsequent
break, and advised the parties that the ruling was left to the
court’s discretion based on the Fourth District’s decision in McCray
v. State, 199 So. 3d 1006 (Fla. 4th DCA 2016). Although the Florida
Supreme Court rendered its decision after trial rejecting the

                                  8
blanket-rule approach of the Fourth District’s McCray decision,
the supreme court continued to embrace an abuse of discretion
standard for this issue. 220 So. 3d at 1122. On the facts presented,
and for the reasons the trial judge explained, we find no abuse of
discretion.

    AFFIRMED.

ROBERTS, KELSEY, and WINOKUR, JJ., concur.

                 _____________________________

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


Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.

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




                                 9
