           DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT
                                   July Term 2014

                              LEAUSTIN BARNETT,
                                  Appellant,

                                          v.

                               STATE OF FLORIDA,
                                    Appellee.

                                   No. 4D12-2533

                               [November 12, 2014]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; William L. Roby, Judge; L.T. Case No. 432009CF001530A.

  Carey Haughwout, Public Defender, and Narine N. Austin, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The defendant appeals his conviction and sentence for first degree
murder with a firearm and robbery with a firearm. He argues the trial
court committed fundamental error in allowing Williams1 rule evidence to
become a feature of the trial, particularly in the State’s closing argument.
We disagree and affirm.

    The information charged the defendant with first degree murder with a
firearm while wearing a mask and robbery with a firearm. The State filed
a notice of intent to introduce Williams rule evidence. The notice advised
that the State intended to introduce evidence of a subsequent shooting in
which the defendant used the same firearm. Shell casings found at the
subsequent shooting matched shell casings found at the homicide
location, and also matched live ammunition for the murder weapon found
near the defendant’s home.


1   Williams v. State, 110 So. 2d 654 (Fla. 1959).
   The State argued the Williams rule evidence was being offered to prove
that the defendant possessed the murder weapon at the homicide and at
the subsequent shooting, the weapon had been in the defendant’s
backpack, and it was found near his home. The weapon also matched live
ammunition found in the defendant’s yard.

   The defendant argued that the evidence was not substantially similar
and opposed its use at trial. He also argued the evidence would deprive
him of a fair trial because it would improperly shift the focus of the trial to
the Williams rule evidence.

   The trial court found the evidence relevant to prove motive, intent,
preparation, plan, knowledge, identity, absence of mistake or accident,
and prior possession of the murder weapon. The court found the collateral
crimes shared unique features to the homicide and went directly to the
issue of lack of mistake or lack of intent on the defendant’s part. The court
admitted the proffered evidence.

   On appeal, the defendant argues that too many witnesses testified
about the Williams rule evidence, and it became a feature of the trial.
Because the State’s case was wholly circumstantial, he argues the jury
would not have returned a guilty verdict without the Williams rule
evidence.

   The State responds that the Williams rule evidence was not a feature of
the trial and its admission was not fundamental error. Only two out of
thirty-six witnesses testified to the Williams rule evidence in a significant
way. And, only nine out of thirty-six pages of the State’s closing argument
referenced the Williams rule evidence. The trial court also gave three
cautionary instructions to the jury about the limited scope and purpose of
the Williams rule evidence, twice during testimony and once at the time of
closing.

   We review a court’s ruling on Williams rule evidence for an abuse of
discretion. Johnson v. State, 112 So. 3d 564, 565 (Fla. 4th DCA 2013).
However, a timely and specific objection must be made for a party to
properly preserve an issue for appeal. State v. Calvert, 15 So. 3d 946, 948
(Fla. 4th DCA 2009).

  The defendant admits that no timely and specific objection was made.
He must therefore establish fundamental error in the trial court’s ruling.




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Conahan v. State, 118 So. 3d 718, 733 (Fla. 2013).2

    Pursuant to section 90.404(2)(a), Florida Statutes:

       Similar fact evidence of other crimes, wrongs, or acts 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. (2012). “Collateral crime evidence becomes an
impermissible ‘feature’ where collateral act evidence ‘overwhelms’ evidence
of the charged crime and becomes ‘an impermissible attack on the
defendant’s character or propensity to commit crimes.’” Grier v. State, 27
So. 3d 97, 101 (Fla. 4th DCA 2009) (citations omitted).

   We agree with the trial court that the Williams rule evidence was
relevant to the homicide. The evidence consisted of testimony that a
witness saw the defendant in possession of two firearms—a silver semi-
automatic firearm and a black firearm—in a backpack prior to the
homicide. Shell casings matching those firearms were not only found at
the homicide location but also at the location of a shooting that occurred
subsequent to the homicide. The victim of the subsequent shooting
testified that the defendant and another individual were involved in his
shooting and used a silver semi-automatic firearm and a black firearm.
There was also testimony that the shell casings from the homicide and the
subsequent shooting matched the live ammunition found at the
defendant’s home.

   This evidence demonstrated the defendant’s possession of the murder
weapon both before and after the homicide. It linked the defendant to the
commission of the homicide and established his motive. It did not become
a feature of the trial. The trial court carefully instructed the jury on the
proper consideration of the evidence. We find no error, much less
fundamental error. The defendant’s conviction and sentence are affirmed.

    Affirmed.

STEVENSON and KLINGENSMITH, JJ., concur.


2The defendant did object once to Williams rule evidence of the gun holster; the
court sustained that objection.

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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