NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA, )

)

Petitioner, )

)

v. ) Case No. 2D19-508

)

ROBERT LINCOLN, )

)

Respondent. )

___________________________________)

Opinion filed September 25, 2019.

Petition for Writ of Certiorari to the Circuit 

Court for Highlands County; Peter F. 

Estrada, Judge.

Ashley Moody, Attorney General, 

Tallahassee, and Elba Caridad Martin, 

Assistant Attorney General, Tampa, for 

Petitioner.

Daniel K. Payne of Kemper Payne Law 

P.A., Sebring, for Respondent.

SILBERMAN, Judge.

The State seeks certiorari review of a pretrial order denying its request to 

offer Williams1 rule evidence in its prosecution against Robert Lincoln for lewd 

molestation and child abuse. We conclude that the circuit court departed from the 

1Williams v. State, 110 So. 2d 654 (Fla. 1959).
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essential requirements of the law by applying a standard that was abrogated by section 

90.404(2)(b), Florida Statutes (2001). This would result in the State suffering 

irreparable injury by depriving the State of crucial evidence that would have 

corroborated the victim's testimony. Accordingly, we grant the petition.

A. The Williams rule before the enactment of section 90.404(2)(b)

Under the Williams rule as established in 1959, "[R]elevant evidence will 

not be excluded merely because it relates to similar facts which point to the commission 

of a separate crime." McLean v. State, 934 So. 2d 1248, 1255 (Fla. 2006) (alteration in 

original) (quoting Williams v. State, 110 So. 2d 654, 659-60 (Fla. 1959)). However, 

similar fact evidence of a collateral crime is prejudicial because it creates the risk of a 

jury convicting the defendant based on his propensity to commit crimes instead of his 

guilt of the charged offense. Id. (citing Heuring v. State, 513 So. 2d 122, 124 (Fla. 

1987)). Thus, similar crime evidence is generally subject to "a strict standard of 

relevance." Id. (quoting Heuring, 513 So. 2d at 124). 

In cases where collateral crime evidence is relevant to establish the 

identity of the perpetrator, the supreme court has required " 'identifiable points of 

similarity' between the collateral act and charged crime that 'have some special 

character or be so unusual as to point to the defendant.' " Id. (quoting Drake v. State, 

400 So. 2d 1217, 1219 (Fla. 1981)). " '[S]ubstantial similarity' is also required 'when the 

[collateral crime] evidence is sought to be admitted for the specific purpose of 

establishing absence of mistake or accident.' " Id. (alteration in original) (quoting 

Robertson v. State, 829 So. 2d 901, 909 (Fla. 2002)).
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Of course, in considering the admissibility of collateral crime evidence 

under the Williams rule, courts must also determine whether "its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of issues, 

misleading the jury, or needless presentation of cumulative evidence" as required by 

section 90.403. McLean, 934 So. 2d at 1256 (quoting § 90.403). "Thus, the similarity of 

the collateral act and charged offense goes to both the preliminary determination of 

relevancy and to the evidence's probative value." Id. at 1255.

In 1987, the supreme court held that in cases involving sexual battery 

within a familial setting, collateral crime evidence of a prior sexual battery within a 

familial setting is relevant to corroborate the victim's testimony. See id. at 1256-57 

(citing Heuring, 513 So. 2d at 124). The Heuring court had discussed a relaxed 

standard of admissibility for collateral crime evidence in such cases. See id. at 1257. 

In describing this relaxed standard of admissibility, the supreme court 

explained as follows: 

[W]hen the collateral sex crime and the charged offense both 

occur in the familial context, this constitutes a significant 

similarity for purposes of the Williams rule, but . . . these 

facts, standing alone, are insufficient to authorize admission 

of the collateral sex crime evidence. There must be some 

additional showing of similarity in order for the collateral sex 

crime evidence to be admissible. The additional showing of 

similarity will vary depending on the facts of the case and 

must be determined on a case-by-case basis. Thus, we do 

not eliminate the requirement of similarity which undergirds 

the Williams rule. However, the strict similarity in the nature 

of the offenses and the circumstances surrounding their 

commission which would be required in cases occurring 

outside the familial context is relaxed by virtue of the 

evidence proving that both crimes were committed in the 

familial context.
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Id. at 1257-58 (emphasis added) (quoting Saffor v. State, 660 So. 2d 668, 672 (Fla. 

1995)). In 1994, the court extended Heuring to allow for the admission of collateral 

crime evidence in sexual battery cases outside the familial context when there is no 

issue regarding the defendant's identity. Id. at 1257 (citing State v. Rawls, 649 So. 2d 

1350, 1354 (Fla. 1994)). But it continued to apply the strict similarity requirement in 

nonfamilial sexual battery cases. Id. 

The supreme court has summed up its case law in Heuring, Rawls, and 

Saffor as follows:

In sum, under this Court's decisions, evidence of a 

collateral act of child molestation is relevant under the 

Williams rule to corroborate the victim's testimony in both 

familial and nonfamilial child molestation cases. We have 

relaxed the requirement for strict similarity between the 

charged and collateral offenses in the familial context, but 

there must be some similarity other than the fact that both 

offenses occurred in the family. We have not extended the 

relaxed standard of admissibility to nonfamilial cases. 

However, in both familial and nonfamilial cases, the required 

showing of similarity must be made on a case-by-case basis, 

and the collateral act evidence is inadmissible if its probative 

value is substantially outweighed by the danger of unfair 

prejudice.

McLean, 934 So. 2d at 1258. 

B. The effect of section 90.404(2)(b) on the Williams rule

In 2001, the legislature enacted what is now section 90.404(2)(b), Florida 

Statutes (2001), to abrogate the supreme court's case law in Heuring, Rawls, and 

Saffor. McLean, 934 So. 2d at 1259. Section 90.404(2)(b)(1), Florida Statutes (2012), 

provides, "In a criminal case in which the defendant is charged with a crime involving 

child molestation, evidence of the defendant's commission of other crimes, wrongs, or 
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acts of child molestation is admissible and may be considered for its bearing on any 

matter to which it is relevant." 

"Section 90.404(2)(b) broadly provides that evidence of the defendant's 

commission of other acts of child molestation is admissible regardless of whether the 

charged and collateral offenses occurred in the familial context or whether they share 

any similarity." McLean, 934 So. 2d at 1259. Instead, the threshold question for 

admissibility under this statute is relevancy. Id. But the evidence must still meet the 

requirement of section 90.403 that its probative value must not be "substantially 

outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, 

or needless presentation of cumulative evidence." Id. (quoting § 90.403). 

Thus, there is no longer a substantial similarity requirement in nonfamilial 

child molestation cases or a relaxed standard of admissibility in familial cases of child 

molestation. But the similarity of the collateral acts and charged offense must still be 

considered when making the determination of relevancy and the determination of the 

evidence's probative value. "First, the less similar the prior acts, the less relevant they 

are to the charged crime, and therefore the less likely they will be admissible. Second, 

the less similar the prior acts, the more likely that the probative value of this evidence 

will be 'substantially outweighed by the danger of unfair prejudice, confusion of issues, 

misleading the jury, or needless presentation of cumulative evidence.' " Id. (quoting § 

90.403). 

The supreme court has set forth the steps a trial court must take when 

determining whether to admit collateral crime evidence under section 90.404(b)(2). See 

McLean, 934 So. 2d at 1262. Initially, the court must find that the State proved the 
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existence of the collateral acts by clear and convincing evidence. Then the court should 

apply the section 90.403 balancing test to determine whether the probative value is 

substantially outweighed by the danger of unfair prejudice by considering 

(1) the similarity of the prior acts to the act charged 

regarding the location of where the acts occurred, the age 

and gender of the victims, and the manner in which the acts 

were committed; (2) the closeness in time of the prior acts to 

the act charged; (3) the frequency of the prior acts; and (4) 

the presence or lack of intervening circumstances.

Id. The court may also consider other factors depending upon the particular 

circumstances of the case. Id.

In addition to the above factors the court must determine whether the 

evidence will mislead or confuse the jury. Id. And the court should assess whether the 

evidence is unnecessarily cumulative of other credibility evidence. If the evidence is 

admitted, the court must ensure that the evidence does not become a feature of the 

trial. Further, if requested, the court must give the jury a cautionary instruction 

regarding the collateral crime evidence both at the time it is admitted and in the final jury 

charge. Id. 

C. The circuit court's Williams rule analysis

In this case, the victim told witnesses that when she was twelve years old 

Lincoln, who was her step-grandfather, started molesting her. On the first occasion, 

Lincoln approached her in his above-ground swimming pool. He put his hand inside her 

swimsuit bottoms and rubbed her vaginal area. Over the following four years, Lincoln 

would offer the victim money if she permitted him to perform oral sex on her. He would 

also take her through fast food drive-ins and make her expose her breasts to get the 

fast food from him. Lincoln threatened to kill himself if the victim reported the abuse.
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The State sought to admit collateral crime evidence of Lincoln's 

molestation of a family friend's child thirty-five years previously when she was twelve 

years old. K.C. testified that Lincoln molested her on about five occasions when the two 

were left alone on Lincoln's boat to go fishing. On these occasions, K.C. was wearing a 

swimsuit. Lincoln fondled her vaginal area underneath her swimsuit by inserting his 

finger into her vagina. He also slid off her bathing suit and fondled her breasts. Lincoln 

told K.C. not to tell anyone or he would deny the accusations and harm her family.

The circuit court denied the State's request to admit this collateral crime 

evidence under section 90.404(2)(b)(1) and McLean. First, the court concluded that the 

State proved the existence of the collateral crimes by clear and convincing evidence. 

Then citing to McLean and Rawls, the court applied "a 'relaxed' requirement for finding 

similarity of the collateral crime to the present charges" because the cases involved 

familial relationships. 

The court concluded that the evidence was inadmissible because the two 

crimes "do not have enough significant common features to warrant its admissibility, 

even under the relaxed familial relationship standard." The court determined that the 

victims' ages were the only common feature between the offenses. The court explained 

that K.C. testified that Lincoln digitally penetrated her and fondled her breasts while the 

two were fishing. But the victim in this case alleged that Lincoln fondled her outside the 

vagina while the two were in the pool, made her show her breasts to get fast food, and 

paid her to receive oral sex. 

D. Analysis 
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The State is entitled to certiorari relief from a pretrial ruling in a criminal 

case if it can establish that "the trial court's order 'constitutes a departure from the 

essential requirements of the law from which the State may suffer irreparable injury.' " 

State v. Richman, 861 So. 2d 1195, 1197 (Fla. 2d DCA 2003) (quoting State v. 

Johnston, 743 So. 2d 22, 24 (Fla. 2d DCA 1999)). In other words, the State must 

establish that the ruling violated clearly established law and would cause material 

injustice. Richman, 861 So. 2d at 1197; State v. Gates, 826 So. 2d 1064, 1066 (Fla. 2d 

DCA 2002). The State asserts that although the circuit court cited to section 

90.404(2)(b)(1) and McLean, it actually applied the abrogated relaxed familial standard 

to determine the admissibility of the collateral crime evidence. The State argues that 

the court failed to apply the correct law which required it to apply section 90.404(2)(b)(1) 

by following the steps set forth in McLean. 

We agree. The circuit court cited McLean for the proposition "that there is 

a 'relaxed' requirement for finding similarity of the collateral crime to the present charges 

in a child molestation case that involves familial relationships between the two victims 

and the defendant." However, the circuit court cited to a portion of McLean wherein the 

supreme court discussed the case law that was abrogated by section 90.404(2)(b)(1). 

See McLean, 934 So. 2d at 1258 (citing Saffor which was applying Heuring). Indeed, 

the McLean court explained as much on the very next page: "Section 90.404(2)(b) 

broadly provides that evidence of the defendant's commission of other acts of child 

molestation is admissible regardless of whether the charged and collateral offenses 

occurred in the familial context or whether they share any similarity. To this extent, 
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section 90.404(2)(b) abrogates our decisions in Heuring, Rawls, and Saffor." McLean, 

934 So. 2d at 1259. 

The circuit court should have followed the procedure the McLean court 

subsequently set forth for applying section 90.404(2)(b). This procedure required the 

court to apply the section 90.403 balancing test to determine whether the probative 

value is substantially outweighed by the danger of unfair prejudice. 934 So. 2d at 1262. 

Instead, the circuit court in this case applied the very standard that was abrogated by 

section 90.404(2)(b). By so doing, the court violated clearly established law in a 

manner constituting a departure from the essential requirements of the law. This 

departure would result in the State suffering irreparable injury by depriving it of crucial 

evidence that would have corroborated the victim's testimony in a case resting on the 

victim's credibility. We therefore grant the petition, quash the order, and remand for the 

circuit court to reconsider the State's motion using the correct standard. 

Petition granted. 

VILLANTI and SLEET, JJ., Concur.