         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D16-5547
                  _____________________________

SAMUEL PITTS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Terry Lewis, Judge.


                        February 5, 2019


WETHERELL, J. 1

     Samuel Pitts appeals his sexual battery conviction. He
challenges the trial court’s admission of collateral crime evidence
and exclusion of “good character” evidence, and he also argues that
the collateral crime evidence impermissibly became a feature of
the trial. We find no merit in any of Pitts’s arguments and
accordingly affirm his conviction and resulting sentence.




    1 Judge Wetherell replaced Judge Roberts on the panel after
Judge Roberts recused himself following oral argument.
                               FACTS

     The victim claimed that Pitts digitally penetrated her without
her consent while she was sleeping after a night of drinking and
smoking marijuana with Pitts and others. Shortly after the
incident, Pitts left voicemails on the victim’s phone apologizing for
getting “carried away,” being “that aggressive,” and going “over the
line.” However, at trial, Pitts disputed the victim’s account of the
incident and denied sexually battering her.

     The State charged Pitts with one count of sexual battery.
Prior to trial, the State filed a notice that it intended to introduce
evidence that years earlier Pitts digitally penetrated another
woman after she passed out following a night of drinking. The
notice stated that this collateral crime evidence would be
introduced “pursuant to Florida Statute 90.404(2)” for purposes of
“prov[ing] a material fact in issue: specifically the requisite
elements of intent (including absence of mistake or accident[)],
modus operandi.”

     Pitts filed a motion in limine to exclude the collateral crime
evidence. After a Williams 2 rule hearing, the trial court found that
the State proved by clear and convincing evidence that Pitts
committed the prior sexual battery. However, the court did not
find the collateral crime evidence admissible for the purposes
listed in the State’s notice. Rather, the court found the evidence
admissible under section 90.404(2)(c), Florida Statutes, to prove
“propensity” and to corroborate the victim’s story. Additionally,
the court found after a “heightened 403 analysis” that the
probative value of the collateral crime evidence outweighed its
prejudicial effect because of the similarity between the prior sexual
battery and the charged offense.

     The collateral crime evidence was introduced at trial, and the
jury found Pitts guilty as charged. The trial court adjudicated
Pitts guilty and sentenced him to the scoresheet minimum of 94.65
months in prison.



    2   Williams v. State, 110 So. 2d 654 (Fla. 1959).

                                  2
                            ANALYSIS

     We review the trial court’s decision to admit or exclude
evidence for an abuse of discretion, but the court’s discretion is
limited by the Evidence Code and applicable case law, the
interpretation of which we review de novo. Jackson v. State, 166
So. 3d 195, 198 (Fla. 1st DCA 2015); Hendricks v. State, 34 So. 3d
819, 822 (Fla. 1st DCA 2010).

     Pitts makes four arguments on appeal: (1) the State’s notice
was deficient, (2) “propensity” was not a proper basis for admitting
the collateral crime evidence, (3) the trial court should have
allowed him to introduce “good character” evidence to rebut the
propensity evidence, and (4) the collateral crime evidence
impermissibly became a feature of the trial. We address—and
reject—each of these arguments in turn.

                  Sufficiency of the State’s Notice

     First, Pitts argues that the State’s notice was deficient
because it did not list “propensity” as a basis for admitting the
collateral crime evidence. We disagree.

     Section 90.404(2)(d)1., Florida Statutes, requires the State to
give written notice of its intent to introduce collateral crime
evidence at least ten days before trial. The statute does not require
the notice to list the specific purpose for which the collateral crime
evidence is to be admitted. It only requires the notice to include “a
written statement of the acts or offenses [the State] intends to
offer, describing them with the particularity required of an
indictment or information.” § 90.404(2)(d)1., Fla. Stat.

     Pitts’s argument effectively seeks to add a requirement that
is not in the statute. In support of the argument, Pitts relies on
Professor Ehrhardt’s practice pointer that “the better view” is to
require the notice to include the specific purpose “so as to enable
the defense to prepare to meet the prosecution’s evidence.”
Charles W. Ehrhardt, Florida Evidence § 404.20, at 346 (2017 ed.).
Best practices aside, the plain language of the statute does not
require the State to identify the specific purpose for which the
evidence is to be introduced, and we do not have the authority to

                                  3
re-write the statute to add such a requirement. See Genesis
Ministries, Inc. v. Brown, 186 So. 3d 1074, 1078 (Fla. 1st DCA
2016) (“We have no authority to re-write the statute in this (or any
other) manner.”); Am. Bankers Life Assurance Co. of Fla. v.
Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968) (“This court is
without power to construe an unambiguous statute in a way which
would extend, modify, or limit its express terms or its reasonable
and obvious implications. To do so would be an abrogation of
legislative power.”).

     We have not overlooked State v. Zenobia, in which the Fourth
District stated that the State’s failure to include any purpose in its
notice “should be grounds for the exclusion of the [collateral crime]
evidence, simply because of the insufficiency of the notice.” 614 So.
2d 1139, 1140 (Fla. 4th DCA 1993). This statement is dicta, but
even if it wasn’t, we would not follow Zenobia. Instead, we would
follow the cases from the other districts that have rejected
arguments similar to the one made by Pitts in this case as being
contrary to the plain language of section 90.404(2)(d)1. See Quinn
v. State, 662 So. 2d 947, 954 (Fla. 5th DCA 1995) (“Quinn’s
argument that the notice given in this case was defective because
it did not state the purpose of its use goes beyond an express
requirement of the statute. To the extent [Zenobia] appears to
require specific reasons or explanations of what the jury might
deduce from the collateral crime evidence, we respectfully
disagree.”); see also Kirkland-Williams v. State, 230 So. 3d 580, 584
(Fla. 2d DCA 2017) (agreeing with Quinn).

     Here, the State’s notice complied with section 90.404(2)(d)1.
because it identified the acts the State intended to offer with
sufficient specificity to allow Pitts to respond to those acts, first in
a Williams rule hearing and then at trial. Accordingly, the trial
court did not err by admitting the collateral crime evidence for a
purpose not specifically listed in the notice.

    Use of the Collateral Crime Evidence to Show “Propensity”

     Second, Pitts argues that the trial court erred in admitting the
collateral crime evidence to prove “propensity” because section
90.404(2)(a), Florida Statutes, expressly prohibits the use of
collateral crime evidence for that purpose. We disagree.

                                   4
     Section 90.404(2)(a) establishes the general rule that
collateral crime evidence is admissible when relevant to prove a
material fact in issue, but “is inadmissible when the evidence is
relevant solely to prove bad character or propensity.” However, a
different rule applies when the defendant is charged with “child
molestation” defined in section 90.404(2)(b)2., or a “sexual offense”
defined in section 90.404(2)(c)2.

     When the defendant is charged with child molestation,
evidence of other acts of child molestation committed by the
defendant may be introduced “for its bearing on any matter to
which it is relevant.” § 90.404(2)(b)1., Fla. Stat. This statute has
been construed to allow the admission of evidence of other acts of
child molestation “to corroborate the victim’s testimony by
showing that the accused had a propensity for such criminal
conduct.” Mendez v. State, 961 So. 2d 1088, 1090 (Fla. 5th DCA
2007) (citing McLean v. State, 934 So. 2d 1248 (Fla. 2006))
(emphasis added). However, before admitting the collateral crime
evidence, the trial court is required to consider the similarity of the
collateral crime and the charged offense as part of its weighing of
the probative value and prejudicial effect of the evidence under
section 90.403, Florida Statutes. See McLean, 934 So. 2d at 1251
(“Application of section 90.403 in determining admissibility
ensures that section 90.404(2)(b) does not open the door to
introduction of any and all propensity evidence in sexual
molestation cases.”).

     Similarly, when (as here) a defendant is charged with a sexual
offense, evidence of other sexual offenses committed by the
defendant may be introduced “for its bearing on any matter to
which it is relevant.” § 90.404(2)(c)1., Fla. Stat. Because this
language is identical to the language in section 90.404(2)(b)1., the
two statutes should be given the same interpretation and
application. See State v. Hearns, 961 So. 2d 211, 217 (Fla. 2007)
(“[W]here the Legislature uses the exact same words or phrases in
two different statutes, we may assume it intended the same
meaning to apply.”) (citing Goldstein v. Acme Concrete Corp., 103
So. 2d 202, 204 (Fla. 1958)). Thus, subject to weighing under
section 90.403, evidence of other sexual offenses committed by the
defendant is admissible under section 90.404(2)(c)1. to corroborate

                                  5
the victim’s testimony by showing that the defendant has a
propensity to commit sexual offenses. See Whisby v. State, 2018
WL 6615177, at *3 (Fla. 1st DCA Dec. 18, 2018) (“[C]ollateral-
crime evidence of a sexual offense is admissible even if offered to
show propensity.”).

     Accordingly, in this case, the trial court did not err in
concluding the collateral crime evidence could be admitted to
corroborate the victim’s testimony by showing Pitts’s propensity to
commit sexual offenses.

             Exclusion of “Good Character” Evidence

     Third, Pitts argues that even if the collateral crime evidence
was properly admitted to show his propensity to commit sexual
offenses, the trial court abused its discretion by prohibiting him
from introducing “good character” evidence to rebut the propensity
evidence. We disagree.

     Although character evidence is generally inadmissible to show
that a person acted in conformity with a character trait on a
particular occasion, a defendant in a criminal case may offer
evidence of “a pertinent trait of character.” § 90.404(1)(a), Fla.
Stat. Section 90.405, Florida Statutes, dictates the methods of
proving character at trial. Hendricks, 34 So. 3d at 822. Under
section 90.405(1), any time a person’s character is admissible, it
may be proven by evidence of that person’s reputation. However,
proof of a person’s character may not be made by specific instances
of conduct unless character is “an essential element of a charge,
claim, or defense.” § 90.405(2), Fla. Stat.

     Here, the only “good character” evidence Pitts proffered was
the testimony of his high school girlfriend.         Although the
girlfriend’s testimony was primarily offered to impeach the
collateral crime witness’s testimony by contradicting her story, the
girlfriend also would have testified that Pitts had never been
“sexually aggressive” towards her. This is effectively specific-act
character testimony under section 90.405(2), and because Pitts’s
character trait for sexual non-violence was not an element of the
charge in this case, the trial court properly excluded this
testimony.

                                 6
     On appeal, Pitts argues that testimony about his reputation
for sexual non-violence should have been admitted under section
90.405(1). This argument was not raised below. Although defense
counsel did state that the jury should be allowed to hear evidence
of Pitts’s reputation for sexual non-violence if that was his
reputation, 3 counsel did not affirmatively represent that was
indeed his reputation or identify any witness who would be able to
testify to that reputation. Absent such a proffer, Pitts’s argument
that the trial court erred in excluding evidence about his
reputation for sexual non-violence is not preserved. See Whitted v.
State, 362 So. 2d 668, 672 (Fla. 1978).

                       Feature of the Trial

    Finally, Pitts argues that the collateral crime evidence
impermissibly became a feature of the trial. We disagree.

     When collateral crime evidence is admitted, “the trial court
must guard against allowing [the evidence] to become a feature of
the trial.” McLean, 934 So. 2d at 1262. Collateral crime evidence
impermissibly becomes a feature of the trial when the evidence
“‘transcend[s] the bounds of relevancy to the charge being tried’
and the prosecution ‘devolves from development of facts pertinent
to the main issue of guilt or innocence into an assault on the
character of the defendant.’” Conde v. State, 860 So. 2d 930, 945
(Fla. 2003) (quoting Williams v. State, 117 So. 2d 473, 475
(Fla.1960)).




    3     Specifically, defense counsel stated: “If Mr. Pitts’s
reputation in the high school was actually a reputation for non-
violence with respect to sexual offenses, that should be admissible
to the jury” (emphasis added). We do not view this statement as a
proffer of evidence, but rather as legal argument in response to the
trial court’s observation that evidence of sexual morality is
generally viewed as inherently unreliable and inadmissible
because it is not something that the community would know. See
Hendricks, 34 So. 3d at 825-26.

                                 7
     There is no set formula to use when determining whether
collateral crime evidence has impermissibly become a feature of
the trial. The determination is fact-dependent and multifaceted
and therefore must be made on a case-by-case basis.

     The volume of collateral crime evidence introduced at trial is
a factor to be considered in determining whether the evidence has
impermissibly become a feature of the trial; however, “it is ‘not
solely the quantity but also the quality and nature of collateral
crimes evidence in relation to the issues to be proven’ that
determines whether it became a feature of the trial.” Peterson v.
State, 2 So. 3d 146, 155 (Fla. 2009) (quoting Conde, 860 So. 2d at
946); see also Wright v. State, 19 So. 3d 277, 293 (Fla. 2009) (“To
determine whether collateral-crime evidence became a feature of
the trial, we do not solely measure the number of references the
prosecution made to such evidence. However, voluminous
references to a collateral crime may indicate a prohibited
transgression, even if it is not the sole determining factor.”)
(emphasis in original and citations omitted). Other factors to be
considered include the extent to which the prosecutor focused on
the collateral crime evidence in closing argument, see Wright, 19
So. 3d at 294 (citing Fitzsimmons v. State, 935 So. 2d 125, 129 (Fla.
2d DCA 2006)), and how the jury was instructed on the use of the
collateral crime evidence, see Peterson, 2 So. 3d at 156.

     Here, the same number of witnesses (two) testified in the
State’s case-in-chief about the collateral crime as testified about
the charged offense, and the witnesses’ testimony about the
collateral crime, including cross-examination, comprised nearly 50
pages of the trial transcript. 4 Despite the volume of this testimony,
we are persuaded that the collateral crime evidence did not
impermissibly become a feature of the trial.

    First, the quantity of the collateral crime evidence was offset
by the quality of the evidence because the charged offense and the

    4  The transcript is 640 pages long, but the trial proceedings
only comprise about 520 pages because the transcript also includes
the Williams rule hearing on the collateral crime evidence that was
held during a break in the trial.

                                  8
collateral crime shared a number of relevant similarities. See
Peterson, 2 So. 3d at 155 (“The quality at issue is the relevancy of
the evidence . . . .”). Second, the testimony about the charged
offense in the State’s case-in-chief comprised almost three times as
many transcript pages as the testimony about the collateral crime.
Third, the prosecutor did not mention the collateral crime evidence
in her opening statement, and although she discussed the
collateral crime evidence in her initial closing argument, the
primary focus of that argument—and the sole focus of the
prosecutor’s rebuttal closing argument—was the evidence
establishing that Pitts was guilty of the charged offense. Fourth,
when discussing the collateral crime in her initial closing
argument, the prosecutor emphasized that Pitts was not on trial
for that crime, and the trial court reinforced this point when,
consistent with section 90.404(2)(d)2., Florida Statutes, the court
instructed the jury that “the defendant is not on trial for any crime,
wrong, or act that is not charged in this case” and that the
collateral crime evidence should be considered “only to the extent
you [the jury] consider it helpful in deciding the issues in this case.”

     We have not overlooked the cases relied on by Pitts, but we
find those cases factually distinguishable because there was
considerably more focus on the collateral crimes in those cases
than there was in this case. For example, in Cannon v. State, 51
So. 3d 1261 (Fla. 1st DCA 2011), “4 of the 6 State witnesses”
testified about the collateral crime and the prosecutor discussed
the collateral crime for “approximately half of the State’s opening
and closing statements.” Likewise, in Fiore v. State, 967 So. 2d 995
(Fla. 5th DCA 2007), a “[g]reater emphasis” was placed on the
collateral crimes than the charged offense because “[a] majority of
the testimony” related to the collateral crimes and the prosecutor’s
closing argument “continually” addressed the collateral crimes. 5
Similarly, in Seavey v. State, 8 So. 3d 1175 (Fla. 2d DCA 2009), the

    5   Fiore is further distinguishable because, unlike this case,
the collateral crimes were dissimilar to the charged offense. See
Fiore, 967 So. 2d at 999 (“There is a significant lack of similarity
between the charged offense and [the victim]'s allegations, and it
is difficult to envision that this evidence can satisfy the McLean
standard.”).

                                   9
prosecutor spent more than half (“seven out of twelve pages”) of his
opening statement discussing the collateral crimes, and then in his
closing argument, the prosecutor improperly “used the [collateral
crimes] evidence to argue that [the defendant] committed the
charged crime because he was a sexual predator.”

    Accordingly, we reject Pitts’s argument that the collateral
crime evidence impermissibly became a feature of the trial.

                         CONCLUSION

    For the reasons stated above, we affirm Pitts’s conviction for
sexual battery and his resulting sentence.

    AFFIRMED.

RAY and WINSOR, 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 B. Moody, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.




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