## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D 16

- 5547

_____________________________

S AMUEL P ITTS
,

Appellant,

v.

S TATE O F F LORIDA
,

Appellee.

_____________________________

On appeal from the Circuit Court for Leon County

. Terry Lewis , Judge

.

February 5, 2019

W ETHERELL
, J. 1

Samuel Pitts appeals his sexual battery conviction . He challenges the trial court’s admission of collateral crime evidence and exclusion of “good character” evidence , and he also argues that the collateral crime evidence impermissibly became a feature of the trial . We find no merit in any of Pitts’s arguments and accordingly affirm his conviction and resulting senten ce

.

1 Judge Wetherell replaced Judge Roberts on the panel after Judge Roberts recused himself following oral argument.2 FACTS

The victim claimed that Pitts digitally penetrated her without her consent while she was sleeping after a ni ght of drinking and smoking marijuana with Pitts and others

. Shortly after the incident, Pitts left voicemails on the victim’s phone a pologizing for getting “ carried away,” being “that aggressive,” and going “over the line.” However, at trial, Pitts disputed the victim’s account of the incident and denied sexually battering her.

The State charged Pitts with one count of sexual battery. Prior to trial , t he State filed a notice that it intended to introduce evidence that years earlier Pitts digitally penetrated another woman after she passed out following a night of drinking. The notice stated that th is collateral crime evidence would b e introduced “pursuant to Florida Statute 90.404(2)” for purposes of

“ prov[ing] a material fact in issue: specifically the requisite elements of intent (including absence of mistake or a ccident [)]

, modus operandi. ”

Pitts filed a motion in limine to exclude the collateral crime evidence. After a Williams 2 rule hearing, t he trial court foun d that the State proved by clear and convincing evidence that Pitts committed the prior sexual battery

. However, t he court did not find the collateral crime ev idence admissible for the purposes listed in the State’s notice. Rather, the court found the evidence admissible under section 90.404(2)(c), Florida Statutes, to prove

“ propensity ” and to corrob orate the victim’s story. Additionally, the court found afte r a “heightened 403 analysis” that the probative value of the collateral crime evidence outweighed its prejudicial effect because of the similarity between the prior sexual battery and the charged offense.

The collateral crime evidence was introduced at trial

, and t he jury found Pitts guilty as charged. The trial court adjudicate d Pitts guilty and sentenced him to the scoresheet minimum of 94.65 months in prison.

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

.3 ANALYSIS

We review the trial court’s decision to admit or exclude evidence for an abuse of discretion , but the court’s discretion is limited by the E vidence C ode and applicable case law, the interpretation of which we review de novo

. Jackson v. State , 166 So. 3d 195, 198 (Fla. 1st DCA 2015); Hendricks v. State , 34 So. 3d 819, 822 (Fla . 1st DCA 2010).

Pitts makes four arguments on appeal: (1) the Sta te’s notice was deficient, (2) “ propensity ” was not a proper basis for admitting the collateral crime evidence, (3) the trial court should have allowed him to introduce “good character” evidence to r ebut the propensity evidence, and (4) the collateral crime evidence impermissibly became a feature of the trial. We address

— and reject

— each of these arguments in turn

.

Sufficiency of the State’s Notice

First, Pitts argues that the State’s notice was deficient because it did not list “ propensity ” as a basis for admitting the collateral crime evidence . We disagree

.

Section 90.404(2)(d)1., Florida Statutes, requires the State to give written notice of its intent to introdu ce collateral crime evidence at least ten days before trial. The statute does not require the notice to list the specific purpose for which the collateral crime evidence is to be admitted . It only requires the notice to include “a written statement of the acts or offenses [the State] intends to offer, describing them with the particularity required of an indictment or information.” § 90.404(2)(d)1., Fla. Stat.

Pitts ’s argument effectively seeks to add a requirement that is not in the statute

. In support of the argument, Pitts relies on Professor Ehrhardt ’s practice pointer that “the better view” is to require the notice to include the specific purpose “ so as to enable the defense to prepare to meet the prosecution’s evidence.” Charles W. Ehrhardt, Florida Evidence § 404.20

, at 346 (2017 ed.). Best practices aside, the plain language of the statute does not require the State to identify the specific purpose for which the evidence is to be introduced

, and we do not h ave the authority to4 re

- write the statute to add such a requirement

. See Genesis Ministries, Inc. v. Brown , 186 So. 3d 1074, 1078 (Fla. 1st DCA 2016) (“We have no authority to re

- write the statute in this (or any other) manner.”); Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968) (“This court is without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.”).

We have not overlooked State v. Zenobia

, in which the Fourth District stated that the State’s failure to include any purpose in its notice “should be grounds for the exclusion of the [collateral crime]

ev idence, simply because of the insufficiency of the notice. ” 614 So. 2d 1139, 1140 (Fla. 4th DCA 1993). This statement i s dicta, but even if it was n’t , we would not follow Zenobia

. Instead , we would follow the cases from the other districts that have rejected

a rgument s similar to th e one made by Pitts in this case as being contrary to t he plain language of section 90.404(2)(d)1

. See Quinn v. State , 662 So. 2d 947, 954 (Fla. 5th DCA 1995) (“Quinn’ s argument that the notice given in this case was defec tive because it did not state the purpose of its use goes beyond an express requirement of the statute. To the extent [ Zenobia ] appears to require specific reasons or explanations of what the jury might deduce from the collateral crime evidence, we respec tfully disagree. ”); see also Kirkland

- Williams v. State , 230 So. 3d 580 , 584 (Fla. 2d DCA 2017) (agreeing with Quinn ).

Here

, the State’s notice complied with section 90.404(2)(d)1. because it identified the acts the State intended to offer with sufficient specificity to allow Pitts to respond to those acts, first in

a Williams rule hearing and then at trial

. Accordingly, the trial court did not err by admitting the collateral crime evidence for a purpose not specifically listed in the notice.

Use of the Collateral Crime Evidence to Show “ Propensity ”

Second, Pitts argues that the trial court erred in admitting the collateral crime evidence to prove “propensity” because section 90.404(2)(a), Florida Statutes, expressly prohibits the use of collateral crime evidence for that purpose. We disagree.5 Section 90.404 (2)(a) establishes the g eneral rule that collateral crime evidence is admissible when relevant to prove a material fact in issue , but “is inadmissible when the evidence is relevant solely to prove ba d character or propensity.” However, a different rule applies when the defendant is charged with “ child molestation ” defined in section 90.404(2)(b)2. , or a “sexual offense” defined in section 90.404(2)(c) 2

.

W hen the defendant is charged with child moles tation, evidence of other acts of child molestation committed by the defendant may be introduced “for its bearing on any matter to which it is relev ant. ” § 90.404(2)(b)1., Fla. Stat. T h is statute has been construed to a llow the admission of evidence of other acts of child molestation “ to corroborate the victim ’ s testimony by showing that the accused had a propensity for such criminal conduct.” Mendez v. State , 961 So. 2d 1088, 1090 (Fla. 5th DCA 2007) (citing M cLean v. State , 934 So. 2d 1248 ( Fla. 2006) ) (emphasis added ). However, before admitting the collateral crime evidence, the trial court is required to consider the similarity of the collatera l crime and the charged offense as part of its weighing of the probative value and prejudicial effect of the evidence under section 90.403 , Florida Statutes

. See McLean , 934 So. 2d at 1251 (“Application of section 90.403 in determining admissibility ensures that section 90.404(2)(b) does not open the door to introdu ction of any and all propensity evidence in sexual molestation cases.”).

Similarly

, when (as here) a defendant is charged with a sexual offense, evidence of other sexual offenses committed by the defendant may be introduced “for its bearing on any matter to which it is relevant

. ” § 90.404(2)(c)1., Fla. Stat. Because this language is identical to the language in section 90.404(2)(b) 1

. , the

two statutes should be given the same interpretation and application

. S ee S tate v. Hearns , 961 So. 2d 211, 217 (Fla. 2007) (“[W]here the Legislature uses the exact same words or phrases in two different statutes, we may assume it intended the same meaning to apply.”) (citing Goldstein v. Acme Concrete Corp ., 103 So. 2d 202, 204 (Fla. 1958)). Thus, subject to weighing u nder section 90.403, evidence of other sexual offenses committed by the defendant is admissible under section 90.404(2)(c) 1. to corroborate6 the victim’s testimony by showing that the defendant has a propensity to commit sexual offenses

. See Whisby v. Stat e , 2018 WL 6615177, at *3 (Fla. 1st DCA Dec. 18, 2018) (“[C]ollateral

crime evidence of a sexual offense is admissible even if offered to show propensity.”)

.

Accordingly, in this case, the trial court did not err in concluding the collateral crime evide nce could be admitted to corroborate the victim’s testimony by showing Pitts’s propensity to commit sexual offenses

.

Exclusion of “Good Character” Evidence

Third, Pitts argues that even if the collateral crime evidence

was properly admi tted to show his propensity to commit sexual offenses , the trial court abused its discretion by prohibiting him from introducing “good character” evidence to rebut the propensity evidence. We disagree.

Although c haracter evidence is generally inadmissible to show that a person acted in conformity with a character trait on a particular occasion

, a defendant in a criminal case may offer evidence of “a pertinent trait of character .” § 90.404(1)(a), Fla. Stat. S ection 90.405, Florida Statutes

, dictates the methods of proving character at trial. Hendricks , 34 So. 3d at 822. Under secti on 90.405(1), any time a person’ s character is admissible, it may be proven by eviden ce of th at person’ s reputation. However, proof of a person’ s character may not be made by speci fic instance s of conduct unless character is “an essential element of a charge, claim, or defense.” § 90.405(2), Fla. Stat.

Here, t he only “good character” evidence Pitts proffered was the testimony of his high school girlfriend

. Although the girlfriend’s testimony was primarily offered to impeach the collateral crime witness’ s testimony by contradicting her story

, the girlfriend also would have testified that Pitts had never been

“ sexually aggressive ” towards her. This is effectively spec ific

- act character testimony under section 90.405( 2 ), and because Pitts’s character trait for sexual non

- violence was not an element of the charge in this case , the trial court properly excluded th is testimony.7 On appeal

, Pitts argues that testimony about his reputation for sexual non

- violence should have been admi tted under s ection 90.405( 1 ). This argument was not raised below. Although def ense counsel did state that the jury should be allowed to hear evidence of Pitts’s reputation for sexual non

- v iolence if that was his reputation, 3 counsel did not affirmatively represent that was indeed his reputation or identify any witness who would be able to testify to that reputation. Absent such a proffer, Pitts’s argument that the trial court erred in excl uding evidence about his reputation for sexual non

- violence is not preserved

. See Whitted v. State , 362 So. 2d 668, 672 (Fla. 1978).

Feature of the Trial

Finally, Pitts argues that the collateral crime evidence impermissibly became a feature of the tri al. We disagree.

When collateral crime evidence is admitted, “the trial court must guard against allowing [the evidence] to become a feature of the trial.” McLean , 934 So. 2d at 1262. Collateral crime evidence impermissibly becomes a feature of the trial when the evidence “‘t ranscend[s] the bounds of relevancy to the charge being tried’ and the prosecution ‘devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant.’” Conde v. State , 860 So. 2d 930, 945 (Fla. 2003) ( quoting Williams v. State, 117 So. 2d 473, 475 (Fla.1960)).

3 Specifically, d efense counsel stated: “ If Mr. Pitt s’s reputation in the high school was actually a reputation for non

violence with respect to sexual offenses, that should be admissible to the jury” (emphasis added). We do not view this statement as a proffer of evidence, but rather as legal argument in response to the trial court’s observation that evidence of sexual morality is generally viewed as inherently unreliable and inadmissible because it is not something that the community would know. See Hendricks , 34 So. 3d at 825

- 26.8 There is no set formula to use when determining whether collateral crime evidence has impermissibly become a feature of the trial. The determinat ion i s fact

- dependent and multi faceted and therefore must be made on a case

- by

- case basis.

The volume of collateral crime evidence introduced at trial is a factor to be considered in determining whether the evidence has impermissibly become a feature of t he t rial; however, “it is ‘ not solely the quantity but also the quality and nature of collateral crimes evidence in relation to the issues to be proven’ that determines whether it became a feature of the trial .” P eterson v. State , 2 So. 3d 146, 155 (Fla. 2009 ) (quoting Conde , 860 So. 2d at 946) ; see also Wr ight v. State , 19 So. 3d 277, 293 (Fla. 2009) (“To determine whether collateral

- crime evidence became a feature of the trial, we do not solely measure the number of references the prosecution made to such evidence

. However, voluminous references to a collateral crime may indicate a prohibited transgression, even if it is not the sole determining factor.”) (emphasis in original and citations omitted). Other factors to be considered include the extent to whi ch the prosecutor focused on the collateral crime evidence in closing argument

, see Wright , 19 So. 3d at 294 (citing Fitzsimmons v. State , 935 So. 2d 125, 129 (Fla. 2d DCA 2006)), and how the jury was instructed on the use of the collateral crime evidence, see Peterson , 2 So. 3d at 156.

Here, the same number of witnesses (two) testified in the State’s case

- in

- chief about the collateral crime as testified about the charged offense, and the witnesses’ t estimony about the collateral crime, including cross

- ex amination, comprised nearly 50 pages of the trial transcript. 4 Despite the volume of th is testimony, we are persuaded that the collateral crime evidence did not impermissibly become a feature of the trial.

First, the quantity of the collateral crime evidence was offset by the quality of the evidence because the charged offense and the

4 The transcript i s 640 pages long, but the trial proceedings only comprise about 5 20 pages because the transcript also includes the Williams rule hearing on the collateral crime evidence that was held during a break in the trial.9 collateral crime share d a number of relevant similarities

. See Peterson , 2 So. 3d at 155 (“The quality at issue is the relevancy of the evidenc e

. . . .”). Second, the testimony about the charged offense in the S tate’s case

- in

- chief comprised almost three times as many transcript pages as the testimony about the collateral crime. Third, the prosecutor did not mention the collateral crime eviden ce in her opening statement, and although she discussed the collateral crime evidence in her initial closing argument, the primary focus of th at argument

— and the sole focus of the prosecutor’s r ebuttal closing argument

— was the evidence establishing that Pi tts was guilty of the charged offense. F ourth

, when discussing the collateral crime in her initial closing argument, the prosecutor emphasized that Pitts was not on trial for that crime, and the trial court reinforced this point when

, consistent with sect ion 90.404(2)(d)2., Florida Statutes, the court instructed the jury that “ the defendant is not on trial for any crime, wrong, or act that is not charged in this case” and that the collateral crime evidence should be considered “only to the extent you [the jury] consider it helpful in deciding the issues in this case.”

We have no t overlooked the cases relied on by Pitts, but we fin d those cases factually distinguishable because there was considerably more focus on the collateral crimes in those cases than there was in this case

. For example, i n Canno n v. State

, 51 So. 3d 1261 (Fla. 1st DCA 2011), “4 of the 6 State witnesses” testified about the collateral crime and the prosecutor discussed the collateral crime for “approximately half of the State’s opening and closing statements.” Likewise , in Fiore v. State , 967 So. 2d 995 (Fla. 5th DCA 2007)

, a “[g]reater emphasis” was placed on the collateral crimes than the charged offense because “[a] majority of the testimony” related to the collateral crimes and the prosecutor’s closing argument “continually” addressed the collateral crimes

. 5 Similarly , in Seavey v. State , 8 So. 3d 1175 (Fla. 2d DCA 2009), the

5 Fiore is further distinguishable because , unlike this case, the collateral crimes w ere dissimilar to the charged offense. See
Fiore

, 967 So. 2d at 999 (“ There is a significant lack of similarity between the charged offense and [the victim] 's allegations, and it is difficult to envision that thi s evidence can satisfy the McLean standard.”).10 prosecutor spent more than half (“seven out of twelve pages”) of his opening statement discussing the collateral crimes, and then in his closing argument, the prosecutor improperly “ used the [collatera l crimes] evidence to argue that [the defendant] committed the charged crime b ecause he was a sexual predator.”

Accordingly , we reject Pitts’s argument that the collateral crime evidence imper missibly became a feature of the trial.

CONCLUSION

For the reasons stated above , we affirm Pitts’s conviction for sexual battery and his resulting sentence.

A FFIRMED

.

R AY and W INSOR
, JJ., concur

.

_____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or
9.331

.

_____________________________

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee

, for Appellant.

Ashley B. Moody , Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee

, for Appellee.