          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D15-4430
                  _____________________________

NICHOLAS RIVET,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Duval County.
Tatiana Salvador, Judge.

                           July 25, 2018


PER CURIAM.

     Eddie Robb had just turned two when he was beaten to death.
The police investigation immediately focused on the two adults
home at the time of beating: Brandi Robb (the child’s mother) and
Nicholas Rivet (Brandi Robb’s boyfriend). The three—mother,
child, and Rivet—had lived together near Naval Station Mayport
at the time of the beating.

     Suspicious of the mother, police asked Rivet to meet with her
while wearing a wire and later to call her on a recorded line.
Suspicious of Rivet, police also asked the mother to call Rivet on a
recorded line. For a while, the investigation turned up no obvious
answers. Indeed, more than three years passed with no arrest.
     The State eventually charged Rivet with second-degree
murder. At his trial, the mother testified against Rivet, and Rivet’s
defense pointed back to the mother. Lawyers for both sides
acknowledged that the death was a homicide and that it had to be
either Rivet or the mother. The jury decided it was Rivet,
convicting him as charged, and the court imposed a life sentence.
Rivet now appeals.

                                 I.

     Many of the pertinent facts were essentially undisputed.
Brandi Robb had two children, Eddie and Logan. After Robb
separated from her husband, she and the children struggled
financially, frequently staying with Robb’s mother or others. For
several weeks before Eddie’s death, Robb and her children stayed
with Rivet. Rivet, too, had recently separated from his spouse, and
he needed help looking after his two children. Robb was not
working, so she was able to watch all the children while Rivet, on
active duty with the United States Navy, worked in port on the
U.S.S. Simpson. Robb’s car had been repossessed, so she drove
Rivet’s car to run errands and take Rivet to and from work.

      Rivet and Robb became romantically involved, but they kept
it a secret. They were both going through divorces and dealing with
child custody issues, and knowledge of their relationship could
have complicated things. Plus, Rivet could have faced discipline
from the Navy, which forbade adultery. So although they lived
together as boyfriend and girlfriend, they told others the
relationship was more like a single dad and a live-in babysitter.

     On January 25, 2010, Robb drove with the children to pick
Rivet up from work. They returned home around 8:00 p.m., and
Robb put Eddie to bed around 8:30. Robb and Rivet were together
downstairs until after 9:00, when Rivet went upstairs to make sure
the children were sleeping. When Rivet did not come down right
away, Robb went upstairs as well. From outside Eddie’s room,
Robb heard Rivet telling Eddie to go to sleep. When Rivet left the
room, he and Robb went back downstairs. After watching
television for a while, the two decided to go to bed. Robb went to
their bedroom while Rivet went to check on the children again.



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     When Rivet reentered the children’s room, it looked to him
like Eddie was having a seizure. He immediately called for Robb,
who called 911. Paramedics came, and Eddie was life-flighted to a
pediatric trauma center. He died there days later.

     According to experts who testified at trial, Eddie suffered
numerous injuries to his head and eyes, including a serious, fatal
head injury. The overall injuries were so severe, the experts
agreed, that they were certainly not caused by an accidental fall or
anything similar. There was also expert testimony that
immediately after the fatal trauma, it would have been obvious to
anyone that Eddie was symptomatic, as he would have had an
immediate altered level of consciousness and been unable to
communicate normally. As one expert stated, “this is not the kind
of brain injury that lets you walk around and smile and talk and
play and then collapse later.”

     The State also presented evidence that Rivet lied to
investigators when first questioned. At the very least, he lied about
the nature of his relationship with Robb. Rivet also provided
inconsistent statements regarding his last check on Eddie. Jurors
heard that Rivet admitted on a recorded call that Eddie had been
awake and crying when he was in the room—evidence that would
undercut any theory that the fatal trauma preceded Rivet’s final
visit to the children’s room. Jurors also heard evidence about a
loud “thud” heard while Rivet was inside the room. And jurors
heard Robb testify that when she saw Rivet leave the children’s
room, he sat at the top of the stairs, put his head in his hand, and
said he “couldn’t do this anymore”—all while sweating and
appearing overwhelmed. (Robb did not think much of that episode
at the time: “I took it as he couldn’t help with Eddie and laying him
down or looking in on him.”)

     But there was evidence the jury did not hear, evidence Rivet
contends would point towards Robb. Rivet proffered testimony
from several witnesses that Robb had a history of acting
inappropriately—even violently—with her own children. One
witness testified that Robb would yell and curse at children, and
at least once forcefully yanked Eddie up from the ground. Another
witness saw Robb lose her temper and spank her children in a
violent, abusive fashion, using either her hand or a hair brush. A

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third witness saw Robb slap the back of her other son’s head with
such force that the child almost fell over. That witness said Robb
showed no reaction while she watched the child cry. The trial court
excluded this evidence as irrelevant, finding Robb’s prior acts
insufficiently similar to those that killed Eddie. 1

    After considering all the evidence before it, and after
considering arguments from the State that Rivet did it and
arguments from Rivet that Robb did it, the jury convicted.

                                 II.

     Rivet’s first argument on appeal is that the trial court should
have granted his motion for judgment of acquittal. At the close of
the State’s case, Rivet argued the evidence was entirely
circumstantial and that “[a] reasonable hypothesis of innocence
exists” because Robb was in the home and—according to her own
testimony—had been frustrated with Eddie all day. The court
denied the motion.

     We review de novo an order denying a judgment of acquittal.
Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). “A criminal
defendant is entitled to a judgment of acquittal if there is no direct
evidence of guilt and if the circumstantial evidence does not
exclude every reasonable hypothesis of innocence.” State v. Sims,
110 So. 3d 113, 115 (Fla. 1st DCA 2013) (citing State v. Law, 559
So. 2d 187, 188-89 (Fla. 1989)).

    Rivet’s theory of events—both below and on appeal—is that
Robb committed the crime. 2 Indeed, his position all along was that

    1 The jury did hear some evidence similar to that proffered.
The jury heard, for example, that the mother used profanity in
front of children, lost her temper with her children from time to
time, and once expressed to friends thoughts of harming herself
and her children.
    2  Although he does not try to do so, Rivet could not assert on
appeal a theory of events not argued below. We have said that to
preserve an argument that the evidence was insufficient to meet
this standard, a defendant must “outline a theory of defense and

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there were only two people who could have killed Eddie, and his
counsel argued throughout trial that it must have been Robb. So
the question is whether the State put on evidence disproving that
theory. It did. It put on Robb herself, who unequivocally testified
that she did not harm the child. The jury was entitled to believe
Robb’s testimony, and it apparently did. See Law, 559 So. 2d at 189
(after the State satisfies its threshold burden, “it becomes the
jury’s duty to determine whether the evidence is sufficient to
exclude every reasonable hypothesis of innocence beyond a
reasonable doubt”).

     Rivet relies on two cases in which courts have found evidence
insufficient under the circumstantial-evidence standard. See Long
v. State, 689 So. 2d 1055, 1058 (Fla. 1997); Cox v. State, 555 So. 2d
352, 353 (Fla. 1989). The theory of defense in those cases—like
Rivet’s theory here—was that another person perpetrated the
crime. But neither of those cases involved a theory like Rivet’s
theory: that a specific, identified person committed the crime.
Here, that specific, identified person (Robb) testified that she did
not commit the crime. Therefore, the evidence was sufficient to
defeat a motion for judgment of acquittal, even under the
circumstantial-evidence standard. 3



argue that the circumstantial evidence was consistent, rather than
inconsistent, with that theory.” Newsome v. State, 199 So. 3d 510,
513 (Fla. 1st DCA 2016); see also Pitts v. State, 227 So. 3d 674, 677
(Fla. 1st DCA 2017) (noting that appellant cannot “concoct a new
theory of innocence” on appeal).
    3 We reject Rivet’s separate argument that the conviction
required an improper stacking of inferences. See Donton v. State,
1 So. 3d 1092, 1099 (Fla. 1st DCA 2009) (“An impermissible
pyramiding of inferences occurs where at least two inferences in
regard to the existence of a criminal act must be drawn from the
evidence and then stacked to prove the crime charged; in that
scenario, it is said that the evidence lacks the conclusive nature to
support a conviction.”) (quoting Graham v. State, 748 So. 2d 1071,
1072 (Fla. 4th DCA 1999)). This argument was not preserved and,
regardless, fails on the merits.

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                                III.

     Rivet’s next argument is that the trial court should have
permitted him to introduce evidence of Robb’s prior misconduct
involving children. Specifically, Rivet sought to introduce
testimony that Robb would lose her temper and act physically and
verbally abusive toward Eddie and other children. The State
moved to exclude this evidence as irrelevant, arguing that Robb’s
prior acts were not similar enough to the acts that caused Eddie’s
fatal injuries. The trial court agreed and excluded the evidence.

     Evidence is generally admissible if it is relevant, and relevant
evidence is “evidence tending to prove or disprove a material fact.”
§§ 90.401-.402, Fla. Stat. (2017). But courts generally exclude
evidence that a defendant committed crimes other than those for
which he is on trial. Seibert v. State, 923 So. 2d 460, 471 (Fla.
2006). Evidence of a defendant’s prior crimes may well be relevant,
but that evidence is “inherently prejudicial because it creates the
risk that a conviction will be based on the defendant’s bad
character or propensity to commit crimes, rather than on proof
that he committed the charged offense.” McLean v. State, 934 So.
2d 1248, 1255 (Fla. 2006) (marks and citation omitted). There is a
special rule, though, that can allow introduction of a defendant’s
prior bad acts in certain circumstances. McDuffie v. State, 970 So.
2d 312, 323 n.2 (Fla. 2007). This rule, known as the Williams rule,
has been codified in section 90.404(2), Florida Statutes. Id. Under
that rule, “[s]imilar 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.” § 90.404(2), Fla. Stat. The rule also provides that such
evidence “is inadmissible when the evidence is relevant solely to
prove bad character or propensity.” Id.

     The typical Williams-rule issue arises when the State seeks to
introduce evidence of a defendant’s similar past crimes. See, e.g.,
Cozzie v. State, 225 So. 3d 717, 731 (Fla. 2017); Kroll v. State, 221
So. 3d 1291, 1291 (Fla. 1st DCA 2017). In this case, the issue is
“reverse Williams rule” evidence. See Washington v. State, 737 So.
2d 1208, 1225 (Fla. 1st DCA 1999) (noting that the “upshot” of
Williams rule evidence “is that an accused may show his innocence

                                 6
by proof tending to show another person’s guilt”); see also
McDuffie, 970 So. 2d at 323 n.2 (“‘Reverse Williams rule’ evidence
is evidence of a crime committed by another person that a
defendant offers to show his or her innocence of the instant
crime.”). Rivet sought to introduce evidence that another person
(Robb) committed the crime. Robb was not on trial, so introduction
of evidence implicating her would not have raised the same due
process concerns underlying the Williams rule. See U.S. v. Cohen,
888 F.2d 770, 777 (11th Cir. 1989) (“When the defendant offers
similar acts evidence of a witness to prove a fact pertinent to the
defense, the normal risk of prejudice is absent.”). In fact, because
of the different interests at issue, many courts relax the standard
for admitting this type of evidence. See, e.g., U.S. v. Harrison, 627
Fed. Appx. 857, 859 (11th Cir. 2015) (“The standard for admission
is relaxed when evidence of prior bad acts is offered by a defendant
and involves behavior of a witness other than a defendant.”); U.S.
v. Williams, 458 F.3d 312, 313 (3d Cir. 2006) (recognizing that
court grants defendants “more leeway” in introducing “bad acts”
evidence). Indeed, the due process factors weigh more in favor of
introducing it. See Washington, 737 So. 2d at 1221 (“The
constitutional guarantees of due process provide for the admission
of evidence relevant to the defense of the accused, and it is clear
that ‘[f]ew rights are more fundamental than that of an accused to
present witnesses in his own defense.’” (quoting Chambers v.
Mississippi, 410 U.S. 284, 302 (1973))); see also Washington v.
Texas, 388 U.S. 14, 19 (1967) (“Just as an accused has the right to
confront the prosecution’s witnesses for the purposes of
challenging their testimony, he has the right to present his own
witnesses to establish a defense. This right is a fundamental
element of due process of law.”).

     Nevertheless, the Florida Supreme Court has explicitly held
that when a defendant seeks to introduce another person’s prior
bad acts “to shift suspicion from himself to another person,” then
“evidence of past criminal conduct of that other person should be
of such nature that it would be admissible if that person were on
trial for the present offense.” State v. Savino, 567 So. 2d 892, 894
(Fla. 1990). In light of this precedent, we must determine whether
the disputed evidence satisfied the general Williams rule
standard. In other words, we must determine whether it would


                                 7
have been admissible against the mother if she were on trial for
Eddie’s death. We conclude it would not have been.

     Where the purported relevancy of Williams rule evidence is to
prove identity (as is the case here), there must be “a close
similarity of facts, a unique or ‘fingerprint’ type of information, for
the evidence to be relevant.” Savino, 567 So. 2d at 894. The
proffered testimony was that Robb had slapped her son Logan in
the head forcefully, had lost her temper and yelled and cursed at
other children, and had spanked and yanked Eddie up by the
armpit. In contrast, the evidence at trial suggested Eddie received
at least three severe blows to the head with such force to bruise
multiple areas of his skull, to cause nerve damage to his brain, and
to detach one of his retinas—blows that ultimately killed him.

     We conclude that the proffered testimony was too dissimilar
to be admissible as Williams rule evidence. Cf. Washington, 737
So. 2d at 1225 (finding reverse Williams rule evidence should have
been admitted because the witness’s prior bad acts were
“strikingly consistent with the type of acts” that caused the
victim’s death). And because binding supreme court precedent
requires us to apply the same standard to the reverse Williams
rule evidence here, see Savino, 567 So. 2d at 894 (“[W]e disagree
that the degree of similarity of such crimes to be relevant should
be modified when identity is sought to be proved, even though it is
less likely that prejudice would occur when evidence of other
crimes is sought to be introduced by a defendant.”), we conclude
the trial court did not abuse its discretion in disallowing the
proffered testimony. 4



    4 Below, defense counsel argued the proffered evidence was
relevant to prove Robb’s motive for accusing Rivet. See Finney v.
State, 660 So. 2d 674, 681-82 (Fla. 1995) (“Overall similarity
between the facts of the two offenses generally is necessary before
the other crime evidence is considered relevant to the issue of
identity. However, such is not the case when other crime evidence
is used to prove motive.”); Washington, 737 So. 2d at 1224 (“Even
without the requisite higher degree of similarity to prove identity,
evidence of other crimes, wrongs, or acts may properly be used to

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                                IV.

     Finally, Rivet argues the lower court erred in denying his
post-trial motion to interview a juror. The juror had served in the
Navy on the same ship as one of the witnesses, along with the
husbands of two other witnesses. The juror had also been to the
home of one of the witnesses for a social event, which Robb had
also attended. But because defense counsel filed the motion
fourteen days after the trial, despite discovering the issue during
the trial, the lower court denied the motion as untimely without
good cause. See Fla. R. Crim. P. 3.575 (requiring a motion to
interview a juror “be filed within 10 days after the rendition of the
verdict, unless good cause is shown for the failure to make the
motion within that time”). We find no abuse of discretion.

    AFFIRMED.

OSTERHAUS, JAY, and WINSOR, JJ., concur.

                  _____________________________

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


Christopher E. Cosden, Fort Myers, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.




prove, e.g., motive, intent, plan, or absence of mistake.”). But
because Rivet has not raised this argument on appeal, we do not
address it. See Anheuser-Busch Companies, Inc. v. Staples, 125 So.
3d 309, 312 (Fla. 1st DCA 2013) (“[W]e are not at liberty to address
issues that were not raised by the parties.”).

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