         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-1233
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CHRISTOPHER WADE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Escambia County.
Thomas V. Dannheisser, Judge.

                       February 11, 2019


WINSOR, J.

    A jury convicted Christopher Wade of sexual battery with a
deadly weapon, and the court sentenced him to life in prison. This
is Wade’s appeal.

                                I.

     Wade’s twenty-eight-year-old victim was walking on a
sidewalk early one morning. Wade approached her on a bicycle,
spoke to her briefly, and then put a knife to her neck and raped
her. Afterward, Wade rode off, and the victim ran home. The victim
immediately woke up her husband and then went to the hospital,
where medical professionals examined her and gathered DNA that
turned out to match Wade’s.
     After the victim testified at trial, the State presented
testimony from two other women Wade had sexually assaulted.
Both testified to similar encounters: They reported that Wade had
approached them on a bicycle, threatened them with a knife, and
forced them to have sex with him. (DNA recovered from those
women also matched Wade.) Wade testified that he never forced
anyone to have sex with him. He said that he frequented
prostitutes and acknowledged that he may have had sex with all
three women, but he insisted that if he did, it was consensual. The
jury rejected his defense, returning a guilty verdict.

                                 II.

     Wade first argues that he was denied his Sixth Amendment
right to conflict-free counsel. Wade’s appointed trial attorney, who
was with an Office of Criminal Conflict and Civil Regional Counsel
(OCCCRC), discovered during trial that another OCCCRC
attorney was representing the victim in an unrelated dependency
proceeding. Wade’s attorney insisted she was unaware of the other
representation, that she knew nothing of the dependency case, and
that nothing about that other representation had (or would) affect
her representation of Wade.

     After learning that the same office represented Wade and his
victim, the judge put Wade under oath and asked whether he
wished “to waive any possible conflict.” Wade said he did. The
judge then remarked that “an actual conflict has not really
surfaced,” but nonetheless found that Wade had “freely,
voluntarily, and knowingly waived any theoretical conflict.”

     Wade now argues that there was an actual conflict of interest,
that he never knowingly waived it, and that his Sixth Amendment
rights were violated as a result. We reject that argument.
“Multiple representation alone does not violate the Sixth
Amendment, and in the absence of an objection, a court can
presume there is no conflict of interest.” State v. Alexis, 180 So. 3d
929, 936 (Fla. 2015). When there is no objection (and there was
none here) courts will not find a Sixth Amendment violation unless
the defendant shows an actual conflict. Id. And an actual conflict,
for these purposes, means a conflict “that adversely affect[s]
counsel’s performance.” Id. at 937; accord Mickens v. Taylor, 535
U.S. 162, 171 (2002) (noting that “actual conflict of interest” means
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“a conflict that affected counsel’s performance—as opposed to a
mere theoretical division of loyalties”); Cuyler v. Sullivan, 446 U.S.
335, 348 (1980) (“In order to establish a violation of the Sixth
Amendment, a defendant who raised no objection at trial must
demonstrate that an actual conflict of interest adversely affected
his lawyer’s performance.”).

     Wade has made no showing—indeed no argument—that the
OCCCRC’s representation of the victim (through a separate
attorney) adversely affected his counsel’s performance. His
attorney indicated she had no knowledge of the victim’s
dependency case; she had not been aware there even was a
dependency case, much less that another attorney in her office was
handling it. Wade’s attorney vigorously cross-examined the victim
in Wade’s defense, and she unambiguously told the court that her
office’s involvement in the dependency case would not affect her
representation of Wade. There is nothing in this record to suggest
otherwise. Cf. Cuyler, 446 U.S. at 348-50 (noting that an actual
conflict existed where “record showed that defense counsel failed
to cross-examine a prosecution witness whose testimony linked
[defendant] with the crime and failed to resist the presentation of
arguably inadmissible evidence [because of] counsel’s desire to
diminish the jury’s perception of a codefendant’s guilt” (citing
Glasser v. United States, 315 U.S. 60 (1942)).

     As in State v. Alexis, “there was no need for an inquiry into
the knowing, intelligent, and voluntary nature of the waiver
because, since there had been no finding of an actual conflict of
interest, there was no need for a waiver.” 180 So. 3d at 938. Wade’s
Sixth Amendment rights were not violated.

                                 III.

     Wade’s other argument is that the court abused its discretion
by admitting testimony of two other sexual-assault victims. Under
Florida’s Evidence Code, in prosecutions for certain sex crimes,
“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.”
§ 90.404(2)(c)1., Fla. Stat. (2015). Here, it was certainly relevant
that Wade had approached other women on a bicycle and forced
sex at knifepoint—if for no other reason than to refute Wade’s
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argument that the events leading to his charges were consensual.
See Williams v. State, 621 So. 2d 413, 417 (Fla. 1993) (noting that
“testimony concerning the other encounters was relevant to rebut
[the] defense that the complainant had consensual sex with him”
and that “[t]he similar fact evidence tended to rebut the defense by
showing a common plan or scheme”). That leaves Wade to argue
that the court erred in weighing the probative value against the
prejudice. See McLean v. State, 934 So. 2d 1248, 1259 (Fla. 2006)
(noting that rule 404 similar-fact evidence remains subject to rule
403 balancing). We afford the court’s rule 403 balancing
substantial deference and review only for an abuse of discretion.
State v. McClain, 525 So. 2d 420, 423 (Fla. 1988). Under the
circumstances presented, and considering the similarity of the
collateral crimes and the charged offense, we find no abuse of
discretion.

    AFFIRMED.

B.L. THOMAS, C.J., and MAKAR, J., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley B. Moody, Attorney General, and Sharon Traxler, Assistant
Attorney General, Tallahassee, for Appellee.




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