          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        JONATHAN D. WALKER,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D14-1636

                           [December 9, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Raag Singhal, Judge; L.T. Case No. 13011141CF10A.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher,
Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

    The defendant appeals his conviction and sentence for robbery with a
weapon. He asserts four issues. First, he suggests the trial court erred in
admitting a statement of identification made by a non-testifying witness.
Second, he argues the court abused its discretion in admitting his
irrelevant and prejudicial statement. Third, he argues the court erred in
denying his motion for judgment of acquittal. And fourth, he argues the
court erred in allowing the State to make denigrating and burden-shifting
comments during closing argument. We find merit in the second argument
only and reverse on that basis.

   The State charged the defendant with robbery with a firearm. The
charge arose from the following facts adduced at trial. When the victim
returned home, he exited his vehicle and walked toward his front door. A
young male approached him and asked for a light. The victim turned to
face the man and told him he did not have a light.

   The victim continued to walk to his front door when he felt someone
grab him by the back of his neck and press an object against his neck.
While the victim never saw the object, he told law enforcement that it felt
like a gun. The man told the victim, “[D]on’t move. I’ll blow your freaking
heart out.” The man took forty dollars from the victim’s pocket and a gold
chain from his neck.

   As the man ran away, the victim turned to look at him. The victim
called out to two men standing in the direction the man was running.
When the two men asked what the other man had done, the victim
responded that he had just been robbed. The two men indicated the man
went by his nickname “Little Idi.”

    When law enforcement arrived, the victim gave an on-scene statement
to the deputy. Although the man who robbed the victim was not wearing
a shirt, the victim failed to mention any tattoos. Law enforcement was
unable to find the man who robbed the victim that day. The victim was
subsequently able to identify the defendant in a photo lineup. The
detective assigned to the robbery advised road patrol of the victim’s
identification. Road patrol came in contact with the defendant a few weeks
later, which allowed the detective to speak with him.

   The detective testified that when the defendant asked the detective what
he was being charged with, the detective replied that he needed to discuss
an armed robbery. When the State asked the detective for the defendant’s
response, defense counsel objected and argued the evidence was more
prejudicial than probative.1 The trial court overruled the objection. The
detective testified that the defendant replied, “[A]n armed robbery? I don’t
even have a gun. . . . I snatched chains in the past but I never used a
gun.” Law enforcement arrested the defendant.

    After the close of the State’s case, defense counsel moved for a judgment
of acquittal, arguing the State failed to prove a prima facie case of robbery
with a firearm. Defense counsel argued no one saw the gun and the
detective was the only person to suggest the defendant used a gun. The
trial court denied the motion. The defendant’s case consisted of the
defendant displaying his tattoos while walking shirtless in front of the jury.

   After resting, defense counsel renewed the motion for a judgment of
acquittal. Defense counsel argued that the State failed to meet its burden
of proof, failed to rebut a reasonable hypothesis of misidentification, and
the victim’s description did not match the defendant because of his clearly

1 Before trial, defense counsel moved in limine to suppress the defendant’s
statement. Part of defense counsel’s argument was that it was propensity
evidence. The trial court denied the motion.

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visible tattoos. The State responded that the victim never indicated the
defendant lacked tattoos. The court denied the motion.

   The jury found the defendant guilty of robbery with a weapon, a lesser-
included offense. Defense counsel moved for a new trial based upon the
denial of certain portions of her previous motion in limine and portions of
the State’s closing argument.        The trial court denied the motion,
adjudicated the defendant guilty, and sentenced him to eight years’
imprisonment followed by two years’ probation, to run concurrent with a
sentence from another case. The defendant now appeals his conviction
and sentence.

   The defendant argues the trial court erred in admitting the defendant’s
statement to the detective. He asserts that the statement was evidence of
prior bad acts that violated the Williams2 rule. He also argues the evidence
was improper propensity evidence and any probative value was far
outweighed by the danger of unfair prejudice.

   The State responds that the trial court did not err in admitting the
defendant’s statements under the “party opponent” exception. It argues
the section 90.403 balancing test weighed in its favor and any error was
harmless. The defendant replies that his statement, “I don’t even have a
gun,” did not indicate consciousness of guilt. He argues the State did not
respond to the prejudicial statement, “I snatched chains in the past,” and
when the court improperly admitted the statement, it was harmful similar
fact testimony.

    We review the admissibility of evidence for an abuse of discretion.
Hayward v. State, 24 So. 3d 17, 29 (Fla. 2009) (citation omitted). “The
trial court’s discretion is constrained, however, by the application of the
rules of evidence, and by the principles of stare decisis.” Id. (internal
citation omitted).

   The defendant’s main argument is that his statement was irrelevant
and constituted improper bad act and propensity evidence. The central
issue is the trial court’s admission of the defendant’s statement, “I
snatched chains in the past but I never used a gun.”

         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

2   Williams v. State, 110 So. 2d 654 (Fla. 1959).

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      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. (2014). “The test of inadmissibility is a lack of
relevancy.” Conde v. State, 860 So. 2d 930, 945 (Fla. 2003) (citation
omitted) (internal quotation marks omitted).        “Relevant evidence is
evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat.

   Mims v. State, 872 So. 2d 453 (Fla. 2d DCA 2004) is instructive. There,
a deputy conducted two undercover cocaine purchases with a person later
identified as the defendant. Id. at 454. The defendant denied having
committed the offense, and a defense witness testified the deputy had
arrested the wrong person. Id. at 455–56.

   The deputy testified that he had a subsequent conversation with the
defendant who said, “I haven’t sold dope in at least four months, so it
couldn’t have been me.” Id. at 454. The state argued the statement should
be admitted as an admission by a party opponent. Id. at 455–56. The
defendant argued the statement should be excluded as Williams rule
evidence because “it was only relevant to show propensity.” Id. at 456.
The court overruled the defense objection and admitted the statement. Id.
The jury convicted the defendant of, among other things, two counts of
sale or delivery of cocaine. Id. at 455.

    The Second District reversed the conviction. Id. at 456. The court
found it significant that identity was a contested issue and the defendant
denied committing the crime. Id. The court discussed a number of cases
where similar evidence had been held to be inadmissible because it was
irrelevant to any material fact and merely used to show propensity. Id. at
455. The court held the evidence was used only to establish propensity,
was unfairly prejudicial, and was harmful. Id.

    Here, the evidence showed that a man snatched a gold chain from the
victim’s neck and stole forty dollars. The defendant denied commission of
the crime, and like Mims, identity was at issue. His statement implicating
himself in prior thefts did not prove a material fact in the current crime,
and was certainly more prejudicial than probative. Appellate courts have
consistently held that a defendant’s comments concerning unrelated
crimes do not prove material facts and constitute harmful error. See, e.g.,
Zuniga v. State, 121 So. 3d 640 (Fla. 4th DCA 2013). It was error for the
trial court to allow the detective to testify about the defendant’s statement.

  Further, the State cannot show that the error was harmless. “The
admission of improper collateral crime evidence is presumed harmful error

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because of the danger that a jury will take the bad character or propensity
to commit the crime as evidence of guilt of the crime charged.” Sims v.
State, 839 So. 2d 807, 811 (Fla. 4th DCA 2003).

    We therefore reverse the conviction and sentence and remand the case
for a new trial. We find no merit in the other issues raised.

   Reversed and Remanded.

GROSS and CONNER, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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