       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 24, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1027
                          Lower Tribunal No. 15-4346
                             ________________


                             Steven Gilchrease,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Veronica A.
Diaz, Judge.

      Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant
Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant
Attorney General, for appellee.


Before FERNANDEZ, SCALES, and LUCK, JJ.

      LUCK, J.
      Steven Gilchrease appeals his conviction and sentence for battery of his 67-

year-old landlady on February 28, 2015, alleging error in the admission at trial of

evidence relating to a prior confrontation which occurred three days before the

charged incident. We affirm.

      Gilchrease had rented an efficiency from Etta McKensie for about six

months prior to the February 28 incident. Sometime in January, water to the

efficiency was turned off.      On February 25, the electricity was turned off.

Gilchrease confronted Ms. McKensie about the utilities, and, according to Ms.

McKensie, Gilchrease threatened her and pulled out the chair she was sitting on.

Subsequently, on February 28, Gilchrease again confronted Ms. McKensie, and

pushed her, causing her to stumble backward. Gilchrease was arrested for the

latter incident and charged with battery of a person sixty-five years or older.

      Prior to trial, defense counsel moved in limine to exclude evidence of the

February 25 confrontation as irrelevant and prejudicial. The State argued the

evidence was admissible to prove Gilchrease’s motive and an absence of mistake.

The trial court ruled the evidence was admissible to prove “motive and any

mistake and any other attempt to bring in the testimony for any other reasons,” and

Ms. McKensie testified as to the incident at trial. The jury returned a verdict of

guilty, and the trial court sentenced Gilchrease to 180 days in the county jail and

two years of probation.



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      On appeal, Gilchrease contends admission of the objected to evidence was

error because it constituted prejudicial evidence of an uncharged crime, the

admission of which destroyed his right to a fair trial. We disagree.

      The State may introduce evidence of an uncharged crime where that

evidence is relevant to an issue in dispute and is not being used solely to show the

defendant’s propensity to commit a crime. § 90.404(2)(a), Fla. Stat. (2015). Here,

evidence of the February 25 incident was relevant to Gilchrease’s motive and

intent in confronting and pushing Ms. McKensie.

      As to motive, the testimony about the February 28 incident, the one that was

charged, was that Gilchrease confronted Ms. McKenzie in her home, pushed her in

the chest and forehead, and said, “You don’t know what I’ll do to you.”1

Gilchrease’s words and actions on February 28, however, did not explain his

motive for confronting and pushing Ms. McKenzie, in other words, why he did

what he did. The February 25 incident, which happened three days earlier, after

the electricity and water had been shut off, filled in the gap to explain Gilchrease’s

motive for the February 28 battery.

      On February 25, after the lights went off, Gilchrease confronted Ms.

McKenzie and said, “The light off, I’m not moving, and I’m not giving you any


1A second witness, Ms. McKenzie’s friend, testified that Gilchrease pushed Ms.
McKenzie in the forehead and said, “Do you know who you’re fooling with? I
will put you down.”

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money. . . . [Y]ou don’t know me. You don’t know me.” Gilchrease then pulled

Ms. McKenzie’s chair out from under her. The February 25 incident explained

that Gilchrease’s motive for pushing Ms. McKenzie, and saying what he said, was

that he was upset about the water and electricity being turned off, and blamed Ms.

McKenzie for it. The February 25 incident, therefore, was relevant and admissible

as motive evidence under section 90.404(2)(a). See Jackson v. State, 522 So. 2d

802, 806 (Fla. 1988) (“The testimony of a prior assault on the victim McKay by

Jackson during an argument over drugs was not so remote in time as to be

irrelevant and supported the state’s theory that Jackson’s motive for killing Milton

and McKay was his belief that they were stealing his drugs and taking advantage

of him.”); Craig v. State, 510 So. 2d 857, 863 (Fla. 1987) (“We find that the

evidence of appellant's thefts of cattle on several occasions was relevant to show

his motive for killing Eubanks and Farmer. The cattle thefts were not wholly

independent of the murders but rather were an integral part of the entire factual

context in which the charged crimes took place. While evidence of motive is not

necessary to a conviction, when it is available and would help the jury to

understand the other evidence presented, it should not be kept from them merely

because it reveals the commission of crimes not charged. The test for admissibility

is not the necessity of evidence, but rather its relevancy.” (citations omitted)).




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      The February 25 incident also was relevant to prove Gilchrease had the

intent to commit battery on Ms. McKenzie. The battery statute requires the state to

prove that the defendant “intentionally touch[ed] or str[uck] another person against

the will of the other.” § 784.03(1)(a)1., Fla. Stat. (2015). The February 25

incident, which involved Gilchrease confronting, and pulling the chair out from

under, Ms. McKenzie was relevant to show that his push was willful and

purposeful because of his continued anger about the utilities being turned off. See

Charles W. Ehrhardt, Florida Evidence § 404.14, at 255-56 (2006 ed.) (“Although

motive itself is usually not an ultimate issue, it supplies the basis from which the

jury may infer that the defendant intended to do the act.”); see also Beard v. State,

842 So. 2d 174, 176 (Fla. 2d DCA 2003) (“Intent is a necessary element of battery,

and must be determined by the surrounding circumstances.”). The prior incident

showed Gilchrease’s state of mind when he went to Ms. McKenzie’s home on

February 28.

      The trial court correctly determined that evidence of the first incident was

relevant to prove an issue in dispute in Gilchrease’s battery trial. There being no

error, we affirm the conviction and sentence entered below.

      Affirmed.




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