FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D16-5547

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SAMUEL PITTS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Leon County.

Terry Lewis, Judge.

February 5, 2019

WETHERELL, 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 sentence.

 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 night of drinking and 

smoking marijuana with Pitts and others. Shortly after the 

incident, Pitts left voicemails on the victim’s phone apologizing 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, the 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 this collateral crime evidence would be 

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 accident[)], 

modus operandi.”

Pitts filed a motion in limine to exclude the collateral crime 

evidence. After a Williams2 rule hearing, the trial court found that 

the State proved by clear and convincing evidence that Pitts 

committed the prior sexual battery. However, the court did not 

find the collateral crime evidence 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 corroborate the victim’s story. Additionally, 

the court found after 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 the 

jury found Pitts guilty as charged. The trial court adjudicated

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 Evidence Code 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 State’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 rebut 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 introduce 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 have the authority to
4

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] 

evidence, simply because of the insufficiency of the notice.” 614 So. 

2d 1139, 1140 (Fla. 4th DCA 1993). This statement is dicta, but 

even if it wasn’t, we would not follow Zenobia. Instead, we would 

follow the cases from the other districts that have rejected 

arguments similar to the one made by Pitts in this case as being 

contrary to the 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 defective 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 respectfully 

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 general 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 bad 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.

When the defendant is charged with child molestation, 

evidence of other acts of child molestation committed by the 

defendant may be introduced “for its bearing on any matter to 

which it is relevant.” § 90.404(2)(b)1., Fla. Stat. This statute has 

been construed to allow 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 McLean 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 

collateral 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 

introduction 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. See State 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 under 

section 90.403, evidence of other sexual offenses committed by the 

defendant is admissible under section 90.404(2)(c)1. to corroborate 
6

the victim’s testimony by showing that the defendant has a 

propensity to commit sexual offenses. See Whisby v. State, 2018 

WL 6615177, at *3 (Fla. 1st DCA Dec. 18, 2018) (“[C]ollateralcrime 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 evidence 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 admitted 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 character 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. Section 90.405, Florida Statutes, dictates the methods of 

proving character at trial. Hendricks, 34 So. 3d at 822. Under 

section 90.405(1), any time a person’s character is admissible, it 

may be proven by evidence of that person’s reputation. However, 

proof of a person’s character may not be made by specific instances 

of conduct unless character is “an essential element of a charge, 

claim, or defense.” § 90.405(2), Fla. Stat.

Here, the 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 specific-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 this

testimony.
7

On appeal, Pitts argues that testimony about his reputation

for sexual non-violence should have been admitted under section 

90.405(1). This argument was not raised below. Although defense 

counsel did state that the jury should be allowed to hear evidence 

of Pitts’s reputation for sexual non-violence 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 excluding 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 trial. 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 

“‘transcend[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, defense counsel stated: “If Mr. Pitts’s 

reputation in the high school was actually a reputation for nonviolence 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 determination is fact-dependent and multifaceted 

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 the trial; 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.” Peterson v. 

State, 2 So. 3d 146, 155 (Fla. 2009) (quoting Conde, 860 So. 2d at 

946); see also Wright 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 which 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’ testimony about the 

collateral crime, including cross-examination, comprised nearly 50 

pages of the trial transcript.4 Despite the volume of this 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 is 640 pages long, but the trial proceedings 

only comprise about 520 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 shared a number of relevant similarities. See

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

the evidence . . . .”). Second, the testimony about the charged 

offense in the State’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 evidence 

in her opening statement, and although she discussed the 

collateral crime evidence in her initial closing argument, the 

primary focus of that argument—and the sole focus of the 

prosecutor’s rebuttal closing argument—was the evidence 

establishing that Pitts was guilty of the charged offense. Fourth, 

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 section 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 not overlooked the cases relied on by Pitts, but we 

find 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, in Cannon 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 were 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 this 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 [collateral 

crimes] evidence to argue that [the defendant] committed the 

charged crime because he was a sexual predator.”

Accordingly, we reject Pitts’s argument that the collateral 

crime evidence impermissibly became a feature of the trial.

CONCLUSION

For the reasons stated above, we affirm Pitts’s conviction for 

sexual battery and his resulting sentence.

AFFIRMED.

RAY and WINSOR, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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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.