                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

VERNON BERNARD MOSS,                  NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D14-421

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed July 1, 2015.

An appeal from the Circuit Court for Alachua County.
Ysleta W. McDonald, Judge.

Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney
General, Tallahassee, for Appellee.




RAY, J.

      Vernon Bernard Moss appeals his conviction for burglary of an occupied

dwelling and sexual battery. We find reversible error in the admission of evidence

of a collateral offense and evidence that Moss exercised his right to remain silent.

Consequently, we reverse and remand for a new trial.
                                      FACTS

      According to the State’s evidence, Moss committed the charged offenses on

December 20, 2012, while working in maintenance at the Verdant Cove apartment

complex. R.L., a resident, saw Moss outside and asked him to come into her

apartment to trim some vertical blinds. R.L. asked if she needed to place a request

with the management office, and Moss indicated that she did not. He went by a

short time later and completed the job. When Moss finished trimming the blinds,

R.L. was standing in her kitchen making a sandwich for her four-year-old

daughter, who was in the open adjoining living room. With the young child

essentially in the same room, Moss approached R.L., made an unwelcomed

comment about her body, and attempted to put his hands in her pants. R.L.

physically blocked the attempt and told Moss to “get the fuck out of [her] house.”

Instead of leaving, Moss grabbed R.L.’s hand and said twice, “[L]et me show you

something I can fix in your bathroom.” When R.L. indicated she did not want to

go, Moss picked her up, threw her over his shoulder, and carried her into the

bedroom as she screamed. He locked the door and performed oral and vaginal sex

on R.L. against her will.

      The police interviewed Moss the same day as the incident. During this

interview, the officer suggested that Moss and R.L. may have engaged in

consensual sex, but Moss denied any sexual contact with her at all. At the end of

                                        2
the interview, the officer advised Moss that if he did have sex with R.L., the

information would come out because R.L. was undergoing a sexual assault

examination, which could reveal DNA evidence.

        A few months later, after confirming that Moss’s DNA was found inside the

victim, the police attempted a second interview with Moss. An officer read Moss

his Miranda1 rights and asked, “Having these rights in mind, do you wish to talk to

us now, or at least listen to what we have to say?” Moss answered, “I’ll listen to

what you’ve got to say.” The officer then asked Moss if he recalled the prior

interview and having denied any contact with R.L. Moss confirmed, “That’s

correct.” The officer responded, “Okay. Is –now, that’s—is that your—you still

maintain that you never—,” at which point Moss interrupted with, “That’s my final

statement.” The officer proceeded, stating, “Okay. That you never had any contact

with her?” Moss confirmed, “That’s what I’m saying.”

        This second interview was admitted into evidence over the defense’s

objection that it amounted to an improper comment on Moss’s invocation of his

right to remain silent. Although the interview went on (resulting in a statement that

the prosecutor agreed was an invocation of the right to remain silent), the portion

the jury heard was approximately two minutes long and is summarized in this

opinion in its entirety. In the State’s closing argument, the prosecutor characterized

1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                          3
the significance of Moss’s comments as showing that he lied after having three

months “to think about this,” after knowing that the police had taken a DNA

sample from him, and after being arrested for rape.

      The trial court also admitted evidence of a collateral crime by Moss. The

collateral crime witness, M.A., testified that she was living at the Verdant Cove

apartment complex on November 10, 2012, when she saw Moss outside and asked

him to replace a lightbulb in her apartment. Moss entered her apartment, replaced

the bulb, and then approached M.A. from behind while she was standing in her

kitchen preparing food. Moss placed his hands on M.A.’s chest and asked if her

breasts were real, at which point she pushed him back and told him to “get the fuck

out of [her] apartment.” Moss replied, “That’s how it is?” and left.

      Moss objected to the admission of M.A.’s testimony on the ground of

relevance. The trial court concluded that this evidence was relevant to show lack of

consent or mistake and modus operandi. At trial, the court instructed that the

evidence could be considered to show “intent or the absence of mistake or accident

on the part of [Moss].” To the jury, the prosecutor argued that M.A.’s testimony

showed “the way [Moss] preys on women.” The prosecutor suggested that Moss

was “probably empowered by the fact that there were no consequences for what

happened to [M.A.], and so he went the further step with [R.L.].”




                                          4
        On behalf of the defense, Moss testified that he had consensual sex with

R.L., for which he had agreed to pay her, after entering her home for the purpose

of fixing her blinds. He explained that he lied to the police because he did not want

his wife to find out about his infidelity. He stated that he maintained his denial

because he hoped R.L. would eventually change her story.

                                     ANALYSIS

                            I. Collateral Crime Evidence

        The first argument we address is that the trial court reversibly erred in

admitting evidence of the offense against M.A. A trial court’s ruling on the

admissibility of evidence is reviewed for abuse of discretion, subject to the rules of

evidence. Donton v. State, 1 So. 3d 1092, 1093 (Fla. 1st DCA 2009).

        Section 90.404(2)(a), Florida Statutes (2013), known as the Williams 2 rule,

addresses the admission of collateral crime evidence:

        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 mistake or accident, but it is
        inadmissible when the evidence is relevant solely to prove bad
        character or propensity.
This rule is “a special application of the general relevancy rule for [a] collateral

crime,” Wright v. State, 19 So. 3d 277, 292 (Fla. 2009), which describes ways in


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

                                           5
which collateral crime evidence may be relevant to specific issues in a trial.

Although the rule addresses “similar fact evidence,” mere similarity to the charged

offense does not ensure the relevance or admissibility of collateral crime evidence.

Charles W. Ehrhardt, Florida Evidence § 404.9 (2013 ed.); see Bolden v. State, 543

So. 2d 423, 423 (Fla. 5th DCA 1989) (emphasizing that evidence should not be

admitted merely to show a pattern of conduct). Likewise, lack of similarity in itself

does not require exclusion of evidence of a collateral offense that is relevant to a

material issue. McLean v. State, 934 So. 2d 1248, 1258 (Fla. 2006). The Williams

rule addresses similarity because the relevance of collateral crime evidence is

“often a function of its similarity.” Id. at 1255.

         Evidence of a similar collateral crime sometimes shows absence of mistake

because “[t]he more frequently an act is done, the less likely it is that it is

innocently done.” Vice v. State, 39 So. 3d 352, 357 (Fla. 1st DCA 2010). With

exceptions not pertinent to the instant case, 3 where collateral crime evidence is

offered for this purpose, it must be “strikingly similar” to the charged offense to be

admissible. Robertson v. State, 829 So. 2d 901, 909 (Fla. 2002). Generally, the

main crime at issue and the similar fact evidence must share “some unique

characteristics or combination of characteristics [that] set them apart from other

offenses.” Id. (quoting Heuring v. State, 513 So. 2d 122, 124 (Fla. 1987),

3
    See § 90.404(2)(b), (c), Fla. Stat. (2013).

                                             6
superseded by statute on other grounds, § 90.404(2)(b), Fla. Stat. (2002), as stated

in McLean, 934 So. 2d at 1258). This requirement of substantial similarity has

been imposed not only because the logical relationship between the similarity and

the issue of absence of mistake justifies it, see Vice, 39 So. 3d at 357, but also

because evidence of a collateral crime carries a high risk of a wrongful conviction

based on the defendant’s character or propensity to commit crimes, see Heuring,

513 So. 2d at 124.

        When it is argued that evidence of a collateral crime tends to prove a

material issue due to its similarity to the charged offense, the trial court should

consider both similarities and differences between the crime being tried and the

similar fact evidence. See Tollefson v. State, 525 So. 2d 957, 960 (Fla. 1st DCA

1988) (collateral crime evidence inadmissible where differences between the two

scenarios overshadowed their “singular similarity”); Beaussicot v. State, 95 So. 3d

472, 474 (Fla. 4th DCA 2012) (two offenses not strikingly similar where

significant differences existed); Nshaka v. State, 82 So. 3d 174, 179 (Fla. 4th DCA

2012)    (similarities between offenses were substantially outweighed by

dissimilarities); see also Corbett v. State, 113 So. 3d 965, 970 (Fla. 2d DCA 2013)

(collateral crime evidence admissible as “fingerprint evidence” where striking

similarities outweighed differences). If the collateral crime evidence involves a

different victim and is offered to prove absence of mistake, differing degrees of

                                         7
severity between the two offenses, or completion of the main crime at issue versus

a mere threat to commit a similar crime in the collateral scenario, are important

considerations. See Robertson, 829 So. 2d at 910 (holding defendant’s prior threat

of violence against ex-wife with an assault rifle was not sufficiently similar to the

fatal shooting of defendant’s current wife with a handgun to justify admission

under the Williams rule).

      Here, the trial court found the collateral crime evidence relevant to show

lack of consent and modus operandi, which, under the facts of this case, are both

ways of saying absence of mistake.4 Although there are clear similarities between

the two offenses described in the State’s evidence, the crime against M.A. is not

similar enough to the distinct crime against R.L. to provide a sufficient basis from

which the jury could find that Moss was not mistaken in any belief he may have

held that R.L. consented to sexual intercourse. Other evidence provided that basis,

but M.A.’s testimony did not. M.A. described a simple battery that Moss stopped

when she pushed him away and verbally protested. Although the battery M.A.

reported was of a sexual nature, it was substantially less severe than the two sexual

batteries 5 detailed in R.L.’s testimony. Perhaps most importantly, the two scenarios


4
 Modus operandi is typically relevant to show identity. See, e.g., Drake v. State,
400 So. 2d 1217, 1219 (Fla. 1981).
5
  Although only one sexual battery was charged, the two distinct acts could have
given rise to two separate charges. See State v. Meshell, 2 So. 3d 132, 135 (Fla.
                                        8
are significantly distinguishable due to Moss’s acquiescence to M.A.’s protest in

comparison with R.L.’s description of his extreme escalation of the offense against

her, by throwing her over his shoulder, carrying her to the bedroom, locking the

door, and sexually battering her, after she protested in the exact same way as M.A.

      The two incidents are similar in terms of the opportunities Moss exploited

and the manner in which he approached the women, but they are quite different on

the crucial issue of what Moss did when his unprovoked and unwelcomed actions

were rejected. The actions that followed this rejection, not the initial attempt to

touch R.L., led to the charge of sexual battery, and M.A.’s testimony is not

probative of Moss’s intent with regard to those actions. M.A.’s testimony

establishes only that Moss has a propensity to touch women’s bodies offensively,

without their consent. This type of propensity evidence is inadmissible and

presumptively harmful. See Vice, 39 So. 3d at 355. Because we are not convinced

beyond a reasonable doubt that this presumptively harmful evidence did not affect

the verdict, we reverse. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

            II. Evidence of Invocation of the Right to Remain Silent

      Moss’s additional argument, that the court erred in admitting the redacted


2009) (holding “the sex acts proscribed in section 800.04(4) (oral, anal, or vaginal
penetration) are of a separate character and type requiring different elements of
proof and are, therefore, distinct criminal acts,” each of which may be the subject
of a separate conviction).

                                         9
recording of the second interview, provides another ground for reversal. Our

supreme court has emphasized that “[i]t is constitutional error to penalize an

individual for exercising the Fifth Amendment privilege” and that “the prosecution

may not introduce during trial the fact that an individual has relied upon this

protection in the face of accusation.” Ventura v. State, 29 So. 3d 1086, 1088 (Fla.

2010). This proscription extends to both evidence of the exercise of that right and

comments concerning such exercise. State v. Smith, 573 So. 2d 306, 317 (Fla.

1990). In fact, any comment or evidence even fairly susceptible of being

interpreted as indicating the exercise of this right is improper. Coleman v. State, 58

So. 3d 324 (Fla. 1st DCA 2011) (quoting State v. DiGuilio, 491 So. 2d 1129, 1135

(Fla. 1986)).

      Under these principles, a defendant’s affirmative statement that he will not

talk to police must be excluded from evidence at trial. Carlisle v. State, 40 Fla. L.

Weekly D1075 (Fla. 2d DCA 2015); see also Mack v. State, 58 So. 3d 354, 355-56

(Fla. 1st DCA 2011); Ash v. State, 995 So. 2d 1158, 1158-59 (Fla. 1st DCA 2008);

accord Ventura, 29 So. 3d at 1089 (“[A]ny comment—direct or indirect—by

anyone at trial on this right is constitutional error that should be avoided.”).

Similarly, and analogous to the evidence at issue here, a comment by a prosecutor

that the defendant has not before offered the explanation of events he offers at trial

is improper. Chamblin v. Sate, 994 So. 2d 1165, 1167-68 (Fla. 1st DCA 2008)

                                         10
(reversing due to prosecutor’s comment that defendant, accused of DUI

manslaughter, had “waited a year” to blame the victim); see also Floyd v. State,

129 So. 3d 1214, 1214-15 (Fla. 1st DCA 2014) (finding “clearly” improper a

prosecutor’s questioning of the defendant as to why he did not speak to police

before trial to tell them he acted in self-defense, as he claimed during his trial

testimony).

      Under the circumstances presented in this case, Moss’s remark to the

detective that he would listen to the detective (and not necessarily talk to him),

soon followed by an assertion that his prior interview was his “final statement” is

at least fairly susceptible of being interpreted as an exercise of his right to remain

silent. The recording at issue is brief, at approximately two minutes long, and

essentially begins and ends with Moss’s refusal to give a new statement. It contains

no clear waiver of the right to remain silent and no substantial interaction between

the officer and Moss before or after Moss’s announcement that he has given his

“final statement.”6 The fact that the recording ends shortly after this announcement


6
  Moss’s responses to the detective may not have been enough to invoke his right
to remain silent and require questioning to cease after a valid waiver of the right.
See Alvarez v. State, 15 So. 3d 738, 743 (Fla. 4th DCA 2009) (recognizing that
once a defendant validly waives his Miranda rights, an attempt to re-assert those
rights within the same interaction must be clear and unequivocal). This case,
however, is not one where a defendant validly waived his right to remain silent and
argues that he later asserted the right before ultimately making incriminating
statements that the State hopes to introduce into evidence. E.g., Bailey v. State, 31
So. 3d 809, 815-16 (Fla. 1st DCA 2009) (upholding trial court’s finding that
                                         11
itself suggests that the announcement was an assertion of the right to remain silent.

While parts of the brief interaction could be interpreted as substantive denials of

contact with the victim, overall, the interaction is more susceptible of being

interpreted as an attempt by Moss to exercise his right against self-incrimination.

      The prosecutor attempted to walk a fine line between (1) emphasizing that

Moss continued to lie despite knowing of the DNA test and having time to reflect

on his previous statement and (2) arguing that Moss, if innocent, should have

spoken up and provided an explanation when confronted with the DNA evidence.

Despite this effort, the implication of guilt created by this evidence arises much

more from the decision not to make further comments until the time of trial, when

Moss raised a never-before-asserted defense, than from the cumulative point that

Moss lied to the police about sexual contact with the victim. The fact that Moss

lied once was relevant; the fact that he lied a second time, only marginally so. The

more significant, but legally improper, point to be drawn from the second

interview is that Moss changed course and invoked his right to remain silent after


ambiguous statement by defendant that he did not “really want to talk about that”
was insufficient to trump prior clear waiver of right to remain silent). It is also not
a case where the defendant selectively refused to answer one substantive question
among many in a voluntary interview. E.g., Hudson v. State, 992 So. 2d 96, 110-11
(Fla. 2008) (opining that prosecutor’s comments concerning defendant’s refusal to
implicate another person during a voluntary interview did not amount to a
comment on defendant’s right to remain silent, as defendant had not exercised the
right).

                                          12
the DNA test results were in and he was confronted by police a second time. From

the exercise of Moss’s right to remain silent, the jury could have inferred that Moss

essentially admitted he was caught.

      Because we are unable to conclude that the admission of the redacted

recording of the second interview was harmless beyond a reasonable doubt,

Appellant is entitled to a new trial. See DiGuilio, 491 So. 2d at 1135.

                                  CONCLUSION

      For the foregoing reasons, we are compelled to reverse Moss’s convictions

for burglary and sexual battery and remand for a new trial.

      REVERSED and REMANDED.

MARSTILLER and SWANSON, JJ., CONCUR.




                                         13
