        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        MARLON JOEL GRIMES,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-127

                              [June 6, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2015-CF-
004186-AXXX-MB.

  Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuña, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

    Marlon Grimes contends that his conviction for possession of a
firearm by a convicted felon should be reversed because the trial court
abused its discretion in allowing the state to introduce multiple certified
judgments of prior felony convictions into evidence in order to establish
Grimes’ legal status. On the record before us, we find no error and we
affirm.

   As the parties were preparing to begin voir dire, Grimes moved to
exclude all but one of the certified judgments the state sought to enter
into evidence to prove Grimes was a convicted felon. Grimes argued that
only one judgment was necessary and that admission of more than one
would be “overly prejudicial.” The state explained that it sought to admit
six certified judgments encompassing eight felony convictions: three
sales of cocaine, three possessions of cocaine, a fleeing and eluding, and
resisting an officer with violence.

   The trial court noted that Grimes did not stipulate to the legal status
element of the offense and that it was not apparent as to whether Grimes
would dispute that element of the charged crime. Based on Harris v.
State, 449 So. 2d 892 (Fla. 1st DCA 1984), the trial court fashioned a
compromise:        the state could introduce four certified judgments
encompassing up to six convictions. The trial court believed that any
more than that would be cumulative and unduly prejudicial. During
trial, four certified judgments were entered into evidence. They reflected
convictions for two sales of cocaine and three possessions of cocaine.

    In moving for exclusion of all but one certified judgment, Grimes
acknowledged the relevance of any one of the prior convictions. He
focused on the cumulative and overly prejudicial effect of the other
certified judgments. Thus, his objection was lodged pursuant to section
90.403, Florida Statutes (2016), which provides that “[r]elevant 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.”

   The Florida Supreme Court has elaborated on the balancing inquiry of
section 90.403:

         “Unfair prejudice” has been described as “an undue
      tendency to suggest decision on an improper basis,
      commonly, though not necessarily, an emotional one.”
      Brown v. State, 719 So. 2d 882, 885 (Fla. 1998) (quoting Old
      Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L.
      Ed. 2d 574 (1997)). This rule of exclusion “is directed at
      evidence which inflames the jury or appeals improperly to
      the jury’s emotions.” Steverson v. State, 695 So. 2d 687,
      688-89 (Fla. 1997). In performing the balancing test to
      determine if the unfair prejudice outweighs the probative
      value of the evidence, the trial court should consider the
      need for the evidence, the tendency of the evidence to suggest
      an emotional basis for the verdict, the chain of inference from
      the evidence necessary to establish the material fact, and the
      effectiveness of a limiting instruction. Taylor v. State, 855 So.
      2d 1, 22 (Fla. 2003). The trial court is obligated to exclude
      evidence in which unfair prejudice outweighs the probative
      value in order to avoid the danger that a jury will convict a
      defendant based upon reasons other than evidence
      establishing his guilt.

Wright v. State, 19 So. 3d 277, 296 (Fla. 2009) (emphases in original)
(quoting McDuffie v. State, 970 So. 2d 312, 327 (Fla. 2007)).

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    The trial court relied on Harris, 449 So. 2d at 896-98, which involved
the application of section 90.403 to the admission of more than one prior
conviction in a prosecution for possession of a firearm by a convicted
felon. In Harris’s first trial, which ended in a mistrial, the parties
stipulated to his status as a convicted felon. Id. at 894. During the
second trial, certified copies of four of Harris’s prior felony convictions
were introduced into evidence over his objection. Id. at 895. 1

    Harris argued on appeal that the trial court erred in allowing the state
to introduce documentary evidence of his four felony convictions, as the
probative value was substantially outweighed by the prejudicial effect.
Id. at 896. The First District rejected the argument, first recognizing that
a prior conviction is a substantive element of the offense. Id. But the
court also recognized that even if the introduction of more than one prior
felony conviction was not necessary, “the test for admissibility of
evidence of such prior convictions is one of relevancy, not necessity.” Id.
(emphasis in original). The court explained that not all relevant evidence
is admissible under the balancing test of section 90.403. Id. at 897. The
court affirmed that a trial court has discretion to determine whether the
probative value of evidence is substantially outweighed by the danger of
unfair prejudice or the needless presentation of cumulative evidence:
“The court must weigh the proffered evidence against the other facts in
the record and balance it against the strength of the reason for
exclusion.” Id. (quoting C. Ehrhardt, Florida Evidence § 403.1 at 62-63
(1977)). The court also recognized that “most evidence that is admitted
will be prejudicial to the adverse party,” and it is only “evidence which
inflames the jury or appeals strongly to the jury’s prejudice” that triggers
the protections of section 90.403. Id. (quoting C. Ehrhardt, Florida
Evidence § 403.1 at 62-63 (1977)). The court requested guidance from
the Florida Supreme Court on the issue of whether, in a prosecution for
possession of a firearm by a convicted felon, the admission of more than
one prior felony conviction and the particulars of each crime amounts to
reversible error. Id. at 898. The Florida Supreme Court declined review.
Harris v. State, 453 So. 2d 1364 (Fla. 1984).

    Many years after Harris issued, the Florida Supreme Court, relying on
Old Chief v. United States, 519 U.S. 172 (1997), held that “when a
criminal defendant offers to stipulate to the convicted felon element of a
charge of possession of firearm by a convicted felon, the State and the
trial court should accept that stipulation.” Brown v. State, 719 So. 2d

1The opinion does not indicate whether Harris stipulated to his legal status
when he was retried.

                                     3
882, 889 (Fla. 1998). Under such a stipulation, the jury would not be
informed of the number or nature of the prior convictions submitted by
the state to the court, and the trial court would “instruct the jury that it
can consider the convicted felon status element of the crime as proven by
agreement of the parties in the form of a stipulation.” Id. The court
recognized that there is a “risk of prejudice inherent in establishing that
a defendant is a convicted felon,” but that in “the absence of a dispute
that the prior conviction was indeed a felony, such an admission [of the
prior substantive offense] can only prejudice the jury with absolutely no
countervailing interest in its support.” Id. at 888 (alteration in original)
(citation omitted). The Florida Supreme Court also agreed with the
United States Supreme Court’s assertion that the prosecution’s need for
“evidentiary depth” in satisfying its burden of persuasion has “virtually
no application when the point at issue is a defendant’s legal status,
dependent on some judgment rendered wholly independently of the
concrete events of later criminal behavior charged against him.” Id.
(quoting Old Chief, 519 U.S. at 190). The court summed up:

      Offering into evidence anything beyond what is necessary to
      establish the defendant’s legal status as a convicted felon is
      irrelevant to the current proceeding, has “discounted
      probative value,” and may needlessly risk a conviction on
      improper grounds. Old Chief, 519 U.S. at 191, 117 S. Ct.
      644.

      [W]hen presented with an “evidentiary alternative”–a
      defendant’s stipulation of prior convicted felon status–rather
      than attempting to balance the “twin tendencies” of prior
      conviction evidence, trial courts should ordinarily accept
      such a stipulation when requested by a criminal defendant.

Id. at 889 (footnote omitted).

    Here, Grimes did not stipulate to the legal status element of the
offense. If Grimes had offered a stipulation, then pursuant to Brown, the
state would have been required to accept the stipulation, and the jury
would not have been apprised of the actual number or nature of his prior
convictions.

   With a stipulation lacking, the trial court had to engage in the
balancing inquiry of section 90.403—the inquiry that was the focus of
Harris. The trial court could have limited the state to fewer certified



                                     4
judgments, and perhaps it could have provided a limiting instruction.2
But we are not able to say that the trial court abused its discretion. 3

    Affirmed.

WARNER and KLINGENSMITH, JJ., concur.

                            *         *         *

    Not final until disposition of timely filed motion for rehearing.




2 Defense counsel did not request such an instruction.
3 We do not address whether the trial court should have redacted the certified
judgments of any information reflecting the nature of the offenses, as defense
counsel failed to make such a request and the issue was not raised on appeal.

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