        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                           JOSEPH PIERRE,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D16-3956

                             [May 16, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Thomas Lynch and Geoffrey Cohen, Judges; L.T. Case
No. 15-16328 CF10A.

   Carey Haughwout, Public Defender, and Benjamin              Eisenberg,
Assistant Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   Joseph Pierre challenges his conviction for attempted first-degree
murder. He argues that the trial court erred in admitting a multi-colored
ski mask that was not used in the crime and by permitting an expert
witness to testify to an area outside of his expertise. As a result of
waiver, we find no reversible error. Because most of the issues were not
properly preserved for review, we affirm and we write to once more
impress upon counsel the duty to be mindful of preserving the right to
appeal, particularly within the rigors of an ongoing jury trial.

   The evidence adduced at trial reveals that Pierre shot his ex-wife.
Pierre was wearing a dark ski mask, but his ex-wife and another
eyewitness, his son, saw his face when the mask slipped off. As Pierre
attempted to flee, the son threw a brick at the passenger side of Pierre’s
vehicle, smashing the rearview mirror. Five hours later, Pierre was
apprehended in a rental car with a missing rearview mirror. The state
presented testimony from an expert witness, Brian Silvia, that he put the
broken pieces of the rearview mirror collected at the scene of the
shooting together like a puzzle and that they matched the rental car.
Although the mask worn in the shooting was never found, police
discovered a second but different, multi-colored ski mask in the rental
car.

    At trial, the defense theorized that Pierre rented the vehicle for a trip
to Georgia and not to facilitate the shooting. Accordingly, Pierre objected
to the introduction of the second mask as irrelevant. The state argued to
the trial judge that the extra mask was relevant to show “state of mind,
nefarious intent.” It was admitted.

   On appeal, Pierre argues the trial court erred by admitting the second
mask because (1) it was irrelevant and (2) any probative value was
outweighed by the danger of unfair prejudice. The state counters that
the knit cap was relevant because the presence of the additional mask in
Pierre’s rental car proved that the rental car was the same car used in
the attempted murder and proved that Pierre had a premeditated design
to kill the ex-wife. The state also argues that because Pierre did not
argue the mask was unfairly prejudicial below, the issue was not
preserved for review.

    “A trial court’s decision on the relevance of evidence will not be
overturned absent an abuse of discretion, though the court’s decision is
limited by the rules of evidence.” Jackson v. State, 89 So. 3d 1011, 1020
(Fla. 4th DCA 2012). “If reasonable men could differ as to the propriety
of the action taken by the trial court, then it cannot be said that the trial
court abused its discretion.” Booker v. State, 514 So. 2d 1079, 1085
(Fla. 1987) (quoting Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla.
1980)).

      Three sections of the evidence code provide the framework
      for evaluating questions of relevance. The general rule is
      that “[a]ll relevant evidence is admissible, except as provided
      by law.” § 90.402, Fla. Stat. (2007). “Relevant evidence is
      [defined as] evidence tending to prove or disprove a material
      fact.” § 90.401, Fla. Stat. (2007). Section 90.403, Florida
      Statutes (2007), establishes a limitation on the introduction
      of relevant evidence: “Relevant evidence is inadmissible if its
      probative value is substantially outweighed by the danger of
      unfair prejudice, confusion of issues, misleading the jury, or
      needless presentation of cumulative evidence.”

Jackson, 89 So. 3d at 1020 (alterations in original).


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   First, because reasonable minds may differ as to whether the second
mask was relevant to the issues of the state’s or the defense’s case, we
find no abuse of discretion in the trial court’s determination of relevance.

   However, we do not reach the merits of whether the probative value of
the second mask was substantially outweighed by the danger of unfair
prejudice it imposed because Pierre failed to assert this ground below.
For proper preservation, a party at trial must contemporaneously object
and assert the specific legal basis for his or her objection to the
admission of the evidence. Datus v. State, 126 So. 3d 363, 365-66 (Fla.
4th DCA 2013). “[A]n objection on relevance grounds only will not
preserve an argument of unfair prejudice on appeal.”         Id. at 365
(emphasis in original). Thus, the issue was not preserved.

   Likewise, we do not reach the merits of Pierre’s unpreserved argument
that Silvia was erroneously allowed to testify to the composition of the
side mirror. Generally, the burden is on a movant to secure a ruling on
his motion and the failure to do so results in a waiver for appellate
purposes. Rose v. State, 787 So. 2d 786, 797 (Fla. 2001); State v. Kelley,
588 So. 2d 595, 600 (Fla. 1st DCA 1991). Pierre argued prior to Silvia’s
testimony that he should not be permitted “to give an expert opinion as
to whether or not pieces were from the same car” since his deposition
testimony established that his expertise is in the mechanics of cars, not
paint and body work. The trial court instructed that the state needed to
lay a proper predicate and that it would “entertain any objection you
have at a later time.” But because Pierre then failed to renew his
objection during Silvia’s testimony or obtain a ruling on his earlier
motion to exclude the testimony, this argument was not preserved for
review either.

   Finally, we find no fundamental error, which is the sole exception to
the preservation requirement, see Harrell v. State, 894 So. 2d 935, 941
(Fla. 2005), and which is “the type of error which ‘reaches down into the
validity of the trial itself to the extent that a verdict of guilty could not
have been obtained without the assistance of the alleged error,’” see
Lawrence v. State, 831 So. 2d 121, 137 (Fla. 2002) (quoting Urbin v.
State, 714 So. 2d 411, 418 n.8 (Fla. 1998)). Neither the admission of the
mask nor the expert testimony—if erroneous—amounts to fundamental
error, as the jury could have found Pierre guilty based on the eyewitness
testimony of his son and ex-wife alone.

   We thus affirm.

   Affirmed.

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WARNER and KLINGENSMITH, JJ., concur.

                         *        *       *

  Not final until disposition of timely filed motion for rehearing.




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