            FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2425
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BILLY GEAR,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Taylor County.
Gregory S. Parker, Judge.

                       December 10, 2018


LEWIS, J.

      Appellant, Billy Gear, appeals his convictions and sentences
for first-degree murder and kidnapping. He contends that the trial
court erred in admitting the dog tracking evidence and in denying
his motion for judgment of acquittal on the kidnapping charge. We
affirm as to the denial of the motion for judgment of acquittal
without discussion, and affirm as to the admission of the dog
tracking evidence for the reasons that follow.

                         BACKGROUND

    Appellant and the victim, Melissa Darnell, had custody
disputes over their infant son. On December 29, 2015, Sergeant
Bryan Hayden of the Taylor County Sheriff’s Office served
Appellant with a court order to take custody of the infant—with
whom Appellant had disappeared during a visit at Melissa’s
home—and returned the child to Melissa. Hayden informed
Appellant, who was upset, that he could contest custody at the
court hearing that was scheduled for the following week. After law
enforcement reunited Melissa with the child, Appellant told his
acquaintances that if he was not granted visitation at the
upcoming custody hearing, he was going to kill Melissa.

     On January 6, 2016, at the custody hearing, the court granted
Melissa custody. According to witness testimony and security
footage, she and Appellant left the Taylor County Courthouse
together around 2:30 p.m. Jimmy Jordan and his wife saw a man
brutally pushing and shoving a woman by the shoulders towards
the woods behind the Wal-Mart in Perry and called 911 around
2:49 p.m. Law enforcement officers responded to the 911 dispatch
and waited outside the woods. Sergeant Jay Ricketson of the Perry
Police Department saw Appellant exiting the woods behind Wal-
Mart in a hurried fashion. Appellant appeared nervous and
sweaty, was breathing heavily, and had blood on him. During his
initial encounter with police, Appellant claimed he had been
running and playing in the woods with his male cousin, that the
person he was seen pushing into the woods was the cousin, who
had long hair, and that Melissa had gone home following the
custody hearing. Shortly thereafter, the police found blood and
drag marks in the woods and then discovered Melissa’s remains
covered with debris and surrounded by court documents.
Appellant’s cousin denied seeing Appellant during the day in
question. As the police uncovered further evidence refuting
Appellant’s version of events, his account continued to change. He
eventually admitted to the police that he covered up Melissa’s
body, but claimed her death was an accident—a contention that
was later repudiated by the medical examiner’s findings, as well
as by Appellant’s confession to a jail mate. The medical examiner
observed injuries on Melissa consistent with having been dragged
and determined that her cause of death was non-accidental
crushing neck trauma with another significant attributing
condition of a fractured jaw. While in the Taylor County Jail,
Appellant told his cellmate that due to custody issues, he assaulted
Melissa in the Wal-Mart parking lot, took her to a path in the
woods, and beat her to death by crushing her neck and dislocating


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her jaw. Appellant also told the police that he had been in those
woods months prior.

     On January 8, 2016, the police contacted Kelly Walker with
the First Response Search Team about helping them find missing
clothing. Walker testified that she is retired from the sheriff’s
office, where she worked for thirty-two years; she described her
experience as a K-9 handler, in which capacity she has been
working since 1992; and she explained that the First Response
Search Team, of which she is the president, is a nonprofit
organization that assists law enforcement and trains its dogs to
work much older trails than the patrol units. Walker conducted a
track of the scene with her K-9 about forty-four to forty-eight hours
after Jordan’s 911 call.

     Walker testified that she performed the track with her
trailing dog Bella, who is a bloodhound and scent specific, meaning
she follows the scent she is presented with. Walker described
Bella’s training, which began at the age of four months and
continued through her retirement at the age of ten years, and
believed the track in this case was her last one. Bella’s retirement
had to do only with her age and the availability of a replacement
canine and not with any decrease in her ability to track. Bella did
a couple of hundred trails and proved reliable at scent trailing—
she was successful “most all of the time.” At the time of the track
at issue, Bella held a National Association of Search and Rescue
certificate and was proficient in tracking scents that were thirty-
six to forty-eight hours old. Although Bella had the capacity to
track thirty-day-old scents, she was only trained to track scents up
to fifty-eight hours old. Bella had in the past successfully done
tracks where she recreated someone’s steps and had also
successfully tracked an over three-day-old missing person’s trail
for well over a mile and led Walker to a trailer home where it was
confirmed the person had been.

     In this case, Bella was presented with Appellant’s cap in a
vacant lot by the Wal-Mart entrance and she began tracking from
where Jordan saw the man pushing the woman into the woods, to
the area where Melissa’s remains were found, and then to the area
where Appellant was apprehended by police upon exiting the
woods. Walker had not been told about the geography and

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significant locations related to the case.      Bella never lost
Appellant’s scent, which she continuously tracked, allowing
Walker’s team to locate several items of evidence.

     The evidence of Bella’s tracking was admitted over the
defense’s objection. Appellant argued that the State was using the
evidence improperly to recreate a track and that the evidence was
unreliable, but the trial court found it met the indicia of reliability.
Following the jury’s verdict finding Appellant guilty as charged,
the trial court adjudicated him guilty on both counts and sentenced
him to consecutive terms of life imprisonment. This appeal
followed.

                              ANALYSIS

     We review a trial court’s ruling on the admissibility of
evidence for an abuse of discretion. Wilcox v. State, 143 So. 3d 359,
373 (Fla. 2014). Dog tracking evidence is admissible if a proper
foundation is laid. McCray v. State, 915 So. 2d 239, 241 (Fla. 3d
DCA 2005) (citing in part Green v. State, 641 So. 2d 391 (Fla.
1994)). The foundation requirement pertains to establishing the
reliability of the dog, which may be accomplished by introducing
evidence of the dog’s breed, training, past performance, and other
indicia of reliability. Id.; see also Toler v. State, 457 So. 2d 1115,
1117 (Fla. 1st DCA 1984) (explaining same).

     In Toler, we held that the trial court did not err by admitting
the dog tracking evidence because “Lieutenant Miller’s testimony
that Bloodhound Andy had successfully tracked humans on seven
prior occasions and his testimony that Andy had been extensively
trained to track humans provided a sufficient foundation.” 457 So.
2d at 1117. In that case, the appellant was tried and convicted for
burglary of a dwelling and the dog, with whom Lieutenant Miller
had worked on seventeen occasions, traced “a scent” from the ditch
where the stolen property was found to the area near the victim’s
trailer where footprints with a unique grid-like design and tire
tracks from a vehicle with at least three different kinds of tires
that could have been left by the appellant’s boots and truck were
found. Id. at 1116-17.

    Similarly, in Green v. State, the supreme court rejected the
appellant’s argument that the trial court should have excluded
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evidence of a dog’s scent tracking because “the character and
dependability of the dog were established, the officer who handled
the dog was trained, and the evidence was relevant”; “[i]n addition,
there were indicia of reliability: the tracking occurred within hours
of the crime and the area had been secured shortly after the crime
occurred, . . . and there was a continuous track to the home of
Green’s sister.” 641 So. 2d 391, 393-94 (Fla. 1994) (noting that the
trial court found that “although the scent tracking was the only
evidence that established Green’s identity, corroboration included
. . . Green’s presence at his sister’s house earlier that day”).

     More recently, in McCray, the Third District concluded that
the trial court did not abuse its discretion by admitting the dog
tracking evidence because there was ample evidence to establish
its reliability where the dog’s handler testified that he has trained
dogs to track for more than thirty-five years and worked with this
particular dog for four years; the handler explained that the dog’s
training included weekly tracking practice and that in the past two
years they did twenty tracks, some of which resulted in
apprehensions; and, in the case, the crime scene area was secured
within minutes, the tracking started within five minutes of the
crime and the defendant’s flight, the tracking began where the
defendant was last seen, the dog picked up the track immediately,
the track was continuous, and the dog located the defendant in his
hiding place near the crime scene. 915 So. 2d at 240-42.

      Turning to the case before us, Appellant maintains that the
trial court erred by admitting the dog tracking evidence because it
was unreliable. We disagree. The dog’s reliability was established
for a proper foundation through Walker’s testimony that Bella is a
bloodhound, she started training at the age of four months and
continued training until her retirement at the age of ten years, she
had done hundreds of tracks and proved reliable, she was
successful at trailing “most all of the time,” the track at issue was
within her proficiency, and she was trained to track scents up to
fifty-eight hours old. Moreover, additional indicia of reliability
were present in this case given that the crime scene was secured,
Bella’s handler was not told of the geography or significant
locations, and Bella tracked Appellant’s scent continuously,
without hesitation.


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     Appellant emphasizes that the tracking took place in an area
where he had previously been in suggesting that the dog picked up
an old scent. However, the only evidence about when Appellant
had last been in the woods was a detective’s testimony that
Appellant stated during a police interview that he had been in the
woods months prior to the crime. Walker testified that although
Bella was capable of tracking thirty-day-old scents, she was
trained to track scents only up to fifty-eight hours old. In addition
to Bella having neither the training nor the capability to track a
scent that is months old, the testimony was that Bella’s track was
continuous and connected the significant areas of the crime scene,
indicating that she was following Appellant’s scent from the time
of the crime.

     Appellant further argues that the dog tracking evidence in
this case was used in an improper and unprecedented manner
because the dog essentially recreated his alleged path instead of
tracking with the goal of finding a suspect, corpse, or specific item
at the end of the trail. However, that is a distinction without a
difference. In either scenario, the dog is tracking the scent a
person had left behind and is, thus, recreating/following that
person’s path, and even when tracking to find a suspect or missing
person, there is no guarantee that the person will be at the end of
the trail. While finding the target at the end of the trail provides
additional indicia of reliability, equivalent indicia of reliability is
present here because upon being presented with Appellant’s scent,
Bella started tracking from the place where Jordan saw a man
forcefully pushing a woman into the woods, to the victim’s body in
the woods (where Appellant eventually admitted to having been at
the time of the crime), and then to the back of the Wal-Mart where
Appellant was apprehended by the police. Bella’s tracking was
continuous and she even located missing pieces of evidence along
the way. We further note that Walker testified that Bella had
successfully tracked people’s paths in the past where the person
was not found at the end of the trail and gave an example of a
three-day-old missing person’s trail.

    Moreover, the dog tracking evidence admitted in this case is
not unique. In fact, we are bound by Toler, where we upheld the
admissibility of dog tracking evidence even though a person was
not located at the end of the trail; indeed, even less indicia of

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reliability was present there because the dog was not presented
with the appellant’s scent, but was used to track “a scent.”
Likewise, in Green, the supreme court upheld the admissibly of dog
tracking evidence where the dog tracked to a place where the
appellant was known to have been earlier in the day, not where he
was actually found at the end of the trail.

     Accordingly, we conclude that the trial court did not abuse its
discretion in admitting the dog tracking evidence and affirm
Appellant’s convictions and sentences.

    AFFIRMED.

RAY 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, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; Benjamin L. Hoffman and
Samuel B. Steinberg, Assistant Attorneys General, Tallahassee,
for Appellee.




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