       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          JOSEPH D. BALDINO,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-4668

                              [July 19, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 562011CF001300A.

  Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.

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

WARNER, J.

   Appellant, Joseph Baldino, appeals his convictions for one count of
solicitation of a parent for unlawful sexual contact with a minor, five
counts of transmission of child pornography, and ninety-nine counts of
possession of child pornography. He raises two issues: first, that the court
erred in denying his motion to suppress the computers seized as a result
of a search warrant because the affidavit in support of the warrant
contained material misstatements and omissions constituting intentional
or reckless conduct by the police, which defeated probable cause; and
second, that the court erred in admitting an additional 124 uncharged
pictures of child pornography from a computer which were not inextricably
intertwined with the charged crimes. As to the first issue, we affirm, as
the court appropriately applied the analysis of Franks v. Delaware, 438
U.S. 154, 171 (1978), and Johnson v. State, 660 So. 2d 648, 656 (Fla.
1995). As to the second issue, the uncharged images were not inextricably
intertwined, and the court erred in overruling appellant’s objection to their
admission. As we cannot find that their admission was harmless beyond
a reasonable doubt, we reverse and remand for a new trial on the
possession of child pornography counts.
   The charges against appellant arose after a St. Lucie County detective
was contacted by a detective in Missouri who had received pornographic
photographs of children from a “joeybaldino” while doing undercover
computer investigations. The Missouri detective subpoenaed Yahoo for
the name and address associated with the username. Yahoo responded
with an address in Port St. Lucie, Florida. The St. Lucie detective was also
contacted by an Illinois detective who had received unsolicited online
requests from a username of “joeybaldino” and started receiving child
pornography over the computer. Posing as “Pam,” the mother of a twelve
year old daughter, the detective engaged in multiple chat room
conversations with “joeybaldino,” some of which involved setting up a
sexual encounter with the child. A third detective from New York also
contacted the St. Lucie detective. He informed him of child pornography
that a resident in New York had received from a “joeybaldino” while in a
chat room. The New York detective had subpoenaed the Yahoo records
and received the same information as did the Missouri detective. Based
upon this information, the St. Lucie detective applied for a search warrant.

   The warrant for a search of all computers at the address received from
the Yahoo records, which was the family home of appellant, was executed
by detectives. Living at that address were appellant, his parents, his
brother, and his sister. Four computers were found, and two were
removed for further analysis. Regarding one computer, which had stickers
on it and was password protected, appellant, who was home at the time,
admitted that it was his computer and he was the only one to use it. A
forensic search of the computer revealed pornographic images of children.
Based upon the chat room contact with the Illinois detective and the
images found on the computer, appellant was charged with computer
solicitation of a parent for unlawful sexual contact with a minor,
transmission of child pornography, and possession of child pornography.

   Appellant moved to suppress the search warrant of the computer,
claiming that the affidavit contained material misrepresentations and
omissions, and the detective either acted recklessly or intentionally in
submitting the affidavit. He claimed that material information was omitted
from the affidavit regarding appellant’s addresses at the time that various
transmissions of child pornography were made; various omissions of
additional information identifying “joeybaldino” that was different than
that contained in the affidavit; and the existence of other “joeybaldinos” in
the area. The court heard extensive argument from computer experts
regarding IP addresses and the information that the detective did not
include in the affidavit.


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    The court then entered a detailed order denying suppression. It
concluded that any information that the detective had failed to include was
unintentionally excluded. In response to appellant’s argument that the
detective did not have personal knowledge of all that was contained in the
affidavit, the court found that the detective could rely on information from
fellow officers. State v. Bowers, 87 So. 3d 704, 709 (Fla. 2012). After
reviewing the details of each of the investigations, the court acknowledged
that only the Missouri investigation provided sufficient information upon
which to base probable cause, but applying Franks, the affidavit was
sufficient to secure a search warrant.

    At trial, the Illinois detective testified he was assigned to the child
exploitation unit, which investigates internet crimes against children.
While in a Yahoo chat room in which there were a lot of sexually-based
conversations regarding children, the detective, posing as “Pam,” received
a private message from an individual with the screen name “joeybaldino.”
While engaging in a conversation of a sexual nature about the fictional
daughter of “Pam”, the detective received thirty images of child
pornography from “joeybaldino.” During the next several days, the
detective sent three messages to “joeybaldino” to see whether there was
still interest in the child, as the detective (“Pam”) was coming to Florida.
In one of the chats, “joeybaldino” admitted sending images of child
pornography to Pam.

   Several days later, they had another computer chat, and “joeybaldino”
again discussed arranging a sexual encounter with Pam and her daughter.
Five days later, Pam sent “joeybaldino” a picture of “herself,” and
“joeybaldino” responded with a webcam picture of himself to the detective.
The detective identified the webcam image as being a photo of appellant.
The webcam picture was introduced as an exhibit. Around ten days later
Pam and “joeybaldino” chatted again, during which child pornography was
transmitted, as well as in another chat a few days later.

   Summarizing, during four different chats, “joeybaldino” sent child
pornography to Pam and tried to set up a sexual encounter with Pam and
her daughter. Transcripts of all the chats and messages were admitted as
exhibits, as were the images and videos of the child pornography.

  When the search warrant was served, the detectives seized two
computers. As part of the search, detectives interviewed appellant. He
admitted that the password-protected computer, upon which a forensic
analysis showed substantial child pornography, was his.



                                     3
   The detective who performed the forensic examination of the computers
testified regarding the child pornographic images found on the computer
appellant identified as his, the possession of which was charged in the
information. The detective identified the images and testified that these
images were accessed either during the time of, or shortly after, the chat
room conversations with Pam. Two images of the appellant were found on
the computer. One, taken by webcam and located under “my document”
and “my pictures,” was created on April 10, 2011, and last accessed on
April 21, 2011.

   In addition, the State sought to introduce 125 uncharged pornographic
pictures found on appellant’s computer. One was accessed close in time
to the chat session with Pam on March 26, 2011, four hours after two
images of appellant’s face had been created, but the other 124 photos were
accessed on a date unconnected with the various chats which formed the
basis of the charges. The defense objected, but the trial court admitted
the pictures as “inextricably intertwined” with the charged offenses.

   The defense called appellant’s sister, who testified that the entire family
had access to the computer, although she admitted that she had told the
detectives executing the search warrant that it belonged to appellant.
Appellant also called a computer expert who testified that there were
multiple “joeybaldino” logins with multiple IP addresses from multiple
locations all over the world. Some of those occurred while appellant was
incarcerated. He also examined two other computers from the home and
found one image of child pornography on one, and LimeWire, a peer-to-
peer software often used to download pornography, on another.

   The jury convicted appellant on one count of soliciting a parent for
unlawful sexual conduct, five counts of transmission of child pornography
and ninety-nine counts of possession of child pornography, all as charged.
He was sentenced to consecutive five year terms of prison on each count.
Appellant now appeals.

   Search Warrant

    Appellant challenges the trial court’s order denying the motion to
suppress the computer evidence found from the execution of the search
warrant, because the warrant was based upon a materially misleading
affidavit. The trial court, however, followed Franks v. Delaware, 438 U.S.
154, 171 (1978), and determined that the affidavit did support probable
cause for the warrant. We agree.



                                      4
   A trial court’s ruling on a motion to suppress comes to the appellate
court clothed with a presumption of correctness and the appellate court
must interpret the evidence and reasonable inferences and deductions
derived therefrom in a manner most favorable to sustaining the trial
court’s ruling. The appellate court defers to the trial court’s findings
regarding the facts in connection with a suppression motion and uses the
de novo standard of review for legal conclusions. Luna v. State, 154 So.
3d 1181, 1183 (Fla. 4th DCA 2015).

    In Franks, the Court developed a test to determine whether
misstatements in affidavits for search warrants would require suppression
of the fruits of those searches. Where a defendant challenges an affidavit
as containing a material misstatement, the defendant must make a
preliminary showing: (1) that the affiant knowingly or intentionally or with
reckless disregard for the truth included a false statement in the affidavit
used to obtain a search warrant; and (2) that statement was necessary to
the finding of probable cause. Franks, 438 U.S. at 171-72. If the
defendant establishes these allegations by a preponderance of the
evidence, then the court must suppress the fruits of the search. Id.

    In Johnson v. State, 660 So. 2d 648 (Fla. 1995), the court extended the
Franks requirements to omissions in affidavits, adding these additional
requirements for the court to assess: (1) “whether the omitted material, if
added to the affidavit, would have defeated probable cause,” and (2)
whether “the omission resulted from intentional or reckless police conduct
that amounts to deception.” Id. at 656. Without all of these findings,
suppression of evidence seized by a search warrant, supported by the
affidavit, should be denied. Id.; see also Pagan v. State, 830 So. 2d 792,
807 (Fla. 2002); Murray v. State, 155 So. 3d 1210, 1217 (Fla. 4th DCA
2015).

    In reviewing the affidavit and the extensive testimony at the hearing on
the motion to suppress, the trial court found no intentional or reckless
conduct on the part the detective who prepared and submitted the
affidavit. Having reviewed the evidence, the court’s conclusion was
supported by competent substantial evidence. There were omissions and
some misstatements, but the trial court not only explained why they were
not intentional or deceptive, it also, in accordance with Johnson,
determined that the omissions, if added to the affidavit, would not have
defeated probable cause. While it found that the evidence of the New York
and Illinois investigations would not have supported probable cause, the
information from the Missouri investigation, in and of itself, was sufficient
to support probable cause. We give deference to the trial court’s findings


                                     5
of fact and agree with its legal conclusions. The motion to suppress was
properly denied.

    Introduction of Uncharged Crimes

    In his second issue, appellant argues that the trial court erred in
overruling his objection to admission of the additional 124 uncharged
images of child pornography found on the computer. The standard of
review for a trial court’s admission of evidence is abuse of discretion, but
a trial court’s discretion is limited by the rules of evidence. Gaines v. State,
155 So. 3d 1264, 1271 (Fla. 4th DCA 2015).

   The trial court found that the images were inextricably intertwined with
the charged crimes. 1 Appellant contends that they were not intertwined
and showed only propensity to commit crimes. Unlike the images of child
pornography charged by the State, each of which was accessed close to
the time of a chat room conversation with Pam, these additional images
were not tied to any of the charged crimes. The State argues that the
images were intertwined, because on the date they were accessed,
appellant had created two images of himself on the same computer.

    “Evidence of uncharged crimes which are inseparable from the crime
charged, or evidence which is inextricably intertwined with the crime
charged, is admissible under section 90.402, Florida Statutes, because ‘it
is a relevant and inseparable part of the act which is in issue.’” Osborne
v. State, 743 So. 2d 602, 602 (Fla. 4th DCA 1999) (quoting Coolen v. State,
696 So. 2d 738 (Fla. 1997)). “Evidence is ‘inextricably intertwined’ if it is
necessary to (1) adequately describe the deed; (2) provide an intelligent
account of the crime(s) charged; (3) establish the entire context out of
which the charged crime(s) arose; or (4) adequately describe the events
leading up to the charged crime(s).” Ward v. State, 59 So. 3d 1220, 1222
(Fla. 4th DCA 2011).

   In this case, the uncharged images of child pornography do not satisfy
any of the reasons for admitting inextricably intertwined evidence. They
did not assist in “adequately describing the deed” of soliciting a parent for
unlawful sexual conduct with a minor, transmission of child pornography,
or possession of the charged images of child pornography. Id. Nor do the
images provide an intelligent account of the other crimes or establish the
entire context out of which the crimes arose. They do not describe events

1  It specifically noted that it was not admitting the images as Williams rule
evidence, because the State did not make that argument to the court. See
Williams v. State, 110 So. 2d 654 (Fla. 1959).

                                       6
leading up to the charged crimes, because the images were accessed after
all of the charged crimes occurred. Because the collateral crimes do not
fit within any of the reasons to admit such evidence, the court abused its
discretion in finding that the uncharged crimes were inextricably
intertwined.

   In its brief, the State contends that inextricably intertwined evidence
can be used to prove identity, citing to Smith v. State, 866 So. 2d 51 (Fla.
2004). In Smith, a murder case, a witness testified that immediately after
the shooting the victim, the defendant said that the victim was the “13th
or 14th [person] that . . . he had shot.” Id. at 57. The supreme court held
that the evidence was relevant to identity, because Smith’s defense was
that someone else had shot the victim. Id. at 60. The court then stated
that in addition the statement was inextricably intertwined with the crime,
having been made immediately after the murder. Id. at 62. The court
adopted Professor Charles W. Ehrhardt’s explanation of inextricably
intertwined evidence that “this evidence is admitted for the same reason
as other evidence which is a part of the so-called ‘res gestae’; it is necessary
to admit the evidence to adequately describe the deed.” Id. at 63 (quoting
C. Ehrhardt, Florida Evidence § 404.16 (1984 Edition)). Professor
Ehrhardt distinguished it from Williams rule evidence, stating “it seems
that both the language of Section 90.404(2)(a) and of Williams indicates
that the rule applies to evidence of discrete acts other than the actions of
the defendant committing the instant crime charged.” Smith, 866 So. 2d
at 63. In this case, the admission of uncharged child pornography images
are evidence of discrete acts, not actions of the defendant in committing
the charged crime. Thus, Smith supports a conclusion that this evidence
was not inextricably intertwined evidence.

   We thus conclude that court abused its discretion in admitting the 124
uncharged images of child pornography. The question becomes whether
the admission of these images is harmless beyond a reasonable doubt. See
State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

      The harmless error test, as set forth in Chapman and progeny,
      places the burden on the state, as the beneficiary of the error,
      to prove beyond a reasonable doubt that the error complained
      of did not contribute to the verdict or, alternatively stated, that
      there is no reasonable possibility that the error contributed to
      the conviction. See Chapman, 386 U.S. at 24, 87 S.Ct. at 828.
      Application of the test requires an examination of the entire
      record by the appellate court including a close examination
      of the permissible evidence on which the jury could have
      legitimately relied, and in addition an even closer examination

                                       7
      of the impermissible evidence which might have possibly
      influenced the jury verdict.

Id. at 1135. As noted in Ward, the State’s burden is higher because of the
nature of collateral crime evidence:

      Here, the state starts out with an even more arduous burden
      because “[t]he erroneous admission of collateral crimes
      evidence is presumptively harmful.” McCall v. State, 941 So.
      2d 1280, 1283 (Fla. 4th DCA 2006) (citations and quotation
      marks omitted). This is because “[e]vidence that suggests a
      defendant has committed other crimes or bad acts can have a
      powerful effect on the results at trial.”

Ward, 59 So. 3d at 1224.

   In evaluating the evidence, there was clearly overwhelming evidence of
the commission of each of the crimes charged. Yet, the presence of
overwhelming evidence alone does not satisfy the DiGuilio test. And in this
case, there are three separate crimes to which the harmless error test must
be applied.

    As to the charge of solicitation of the parent for sexual conduct with a
minor, the chat room conversations and the actual webcam image of the
appellant, which he sent during one of the conversations, constitute
powerful evidence. Appellant’s identification of himself through the
webcam picture tied him to the chats in which the solicitation took place.
The fact that nearly a month later images of child pornography may have
been accessed on a computer on which he also created images of himself
is completely irrelevant to the crime of solicitation. Similarly, with respect
to the transmission of the pornographic images, not only were they
transmitted during the chat room conversations, but appellant admitted
in one conversation that he had transmitted them to Pam. Again, we fail
to see how the possession of additional uncharged images of child
pornography in any way could have possibly influenced the verdict on this
issue.

   As to the counts of possession of child pornography, however, we come
to a different conclusion. In his defense, appellant attempted to show that
the computer on which the images were found was a family computer
which could be accessed by anyone in the house. The introduction of an
additional 124 images from that computer together with two images of him
may have influenced the jury to conclude that the 100 images charged in
the information were also possessed by the appellant. At least we cannot

                                      8
say that the State has shown beyond a reasonable doubt that they would
not have influenced the jury in the rendering its verdict on the possession
counts.

    For the foregoing reasons, we affirm appellant’s convictions and
sentences for soliciting a child for unlawful sexual conduct using computer
services or devices and transmission of child pornography. We reverse
appellant’s convictions for possession of child pornography and remand
for a new trial.

TAYLOR and LEVINE, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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