FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D23-1169

LT Case No. 2007-CF-293

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MICHAEL R. JACKSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Clay County. 

Don H. Lester, Judge. 

Matthew J. Metz, Public Defender, and George D.E. Burden, 

Assistant Public Defender, Daytona Beach, for Appellant. 

Ashley Moody, Attorney General, and Julian E. Markham, 

Assistant Attorney General, Tallahassee, for Appellee. 

April 5, 2024

JAY, J.

Appellant seeks the reversal of his convictions for first-degree 

murder and sexual battery. He asserts that the trial court erred by 

allowing the State to introduce evidence about a sexual battery 

that he previously committed. We hold that no error occurred. 

Therefore, we affirm Appellant’s convictions and sentences.
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I.

In 2007, a grand jury indicted Appellant for first-degree 

murder and sexual battery. A.B. was the victim in both counts. 

Coworkers found her deceased body near a kennel cage at the 

veterinary clinic in Orange Park where she was a technician. She 

had been raped, strangled, and brutally beaten. Appellant lived 

near the clinic, and investigators found his DNA in the victim’s 

body. A jury found him guilty as charged. The Supreme Court of 

Florida later awarded him a new trial. Jackson v. State, 107 So. 3d 

328 (Fla. 2012) (holding that the trial court should have excluded

a lengthy video of Appellant’s interview with investigators in 

which the investigators repeatedly expressed their certainty about 

Appellant’s guilt and spoke highly of the victim).

In preparation for Appellant’s new trial, the State filed a 

notice of its intent to introduce evidence of other crimes, wrongs, 

or acts under section 90.404, Florida Statutes. The other crime 

was a sexual battery that Appellant committed in 1986. In that 

case, Appellant pleaded guilty and served thirteen years of a 

thirty-year prison sentence before entering probation. He was still 

serving that probation when A.B.’s sexual battery and murder took 

place.

Appellant asked the trial court to exclude all evidence from 

his 1986 case. He argued that the time lapse between the crimes 

and their alleged factual dissimilarities rendered any mention of 

his earlier case inadmissible. After holding a hearing, the trial 

court entered a detailed order ruling that the evidence was 

admissible.

At trial, Appellant maintained that he had consensual, 

unprotected sex with A.B. in the timeframe that immediately 

preceded her sexual battery and murder. He claimed he never 

went to the veterinary clinic where A.B. worked or attacked her in 

any way.

During its rebuttal case, the State presented two witnesses 

who testified about the 1986 sexual battery: the victim and one of 

the officers who investigated it. Before the victim (H.E.) testified, 

the court instructed the jury to consider her testimony exclusively 
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“for the limited purpose of proving opportunity, intent, plan, 

identity and lack of consent.” The court cautioned the jury that 

Appellant was not on trial for his prior conduct. One juror 

immediately reported that she could not hear the court’s 

instructions. The court then repeated the instructions.

H.E. testified that on March 27, 1986, she was living in an 

apartment complex in Jacksonville with her mother and sister. 

Around 7:00 that morning, a stranger carrying a knife entered her 

bedroom. The man approached H.E.’s bed, grabbed a pillow, and 

placed the pillow over her head. He threatened to harm her if she 

did not comply with his demands. He then removed her pants and 

underwear and penetrated her vagina with his penis. The attack 

continued until the man heard someone cough in the living room. 

H.E. told the man that her mother was the person who coughed. 

The man initially questioned H.E.’s statement, saying that he 

watched H.E.’s mother leave the apartment earlier that morning.

Now realizing he was not alone with H.E., the man tried to 

figure out what to do. H.E. feared the man would harm her mother, 

so she suggested that he escape through the window of her secondstory bedroom. The man followed H.E.’s suggestion. As the man

exited, he faced H.E. That was the moment when H.E. was able to 

get an unobstructed view of her attacker. H.E. and her mother 

then called the police. H.E. later identified Appellant as her 

attacker from a photographic lineup.

The State next presented the testimony of Timothy O’Steen. 

The court again instructed the jurors about the limited purpose of

the testimony that they were about to hear. O’Steen testified that 

in 1986, he was working in the sex crimes unit of the Jacksonville 

Sheriff’s Office. He investigated H.E.’s case. In addition to H.E.’s

identification of Appellant, officers found that Appellant lived in 

H.E.’s apartment complex and that his fingerprints were on the

sill of H.E.’s bedroom window. The State charged Appellant with

burglary and sexual battery. He pleaded guilty to those charges.

Before the jurors retired to deliberate, the court once again 

instructed them to consider evidence about Appellant’s previous

case only “for the limited purpose of proving opportunity, intent, 

plan, identity and lack of consent.” The court reiterated that 
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Appellant was not on trial for his prior conduct. Ultimately, the 

jury found Appellant guilty as charged on both counts.

II.

“A trial court’s decision to admit collateral-act evidence is 

reviewed for abuse of discretion.” Whisby v. State, 262 So. 3d 228, 

231 (Fla. 1st DCA 2018). “A court abuses its discretion only when 

the judicial action is arbitrary, fanciful, or unreasonable, which is 

another way of saying that discretion is abused only where no 

reasonable [person] would take the view adopted by the trial 

court.” Smith v. State, 139 So. 3d 839, 846 (Fla. 2014) (alteration 

in original) (quoting Frances v. State, 970 So. 2d 806, 817 (Fla. 

2007)).

“In a criminal case in which the defendant is charged with a 

sexual offense, evidence of the defendant’s commission of other 

crimes, wrongs, or acts involving a sexual offense is admissible and 

may be considered for its bearing on any matter to which it is 

relevant.” § 90.404(2)(c)1., Fla. Stat. (emphasis added). Under 

this statute, “collateral-crime evidence of a sexual offense is 

admissible even if offered to show propensity.” Whisby, 262 So. 3d 

at 232.

“However, the State must still demonstrate that the probative 

value of the evidence is not substantially outweighed by the danger 

of unfair prejudice, confusion of issues, misleading the jury, or 

needless presentation of cumulative evidence.” Id. (citing § 90.403, 

Fla. Stat.). To decide this issue, a court considers:

(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. (quoting McLean v. State, 934 So. 2d 1248, 1262 (Fla. 2006)).

“This list is not exclusive.” McLean, 934 So. 2d at 1262. Courts 

“should also consider other factors unique to the case.” Id.
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Here, the similarities in the sexual batteries are numerous. 

Both occurred in northeast Florida. Both victims were young 

women in their teens or twenties. Both suffered penile-vaginal 

penetration. Both crimes took place in the early morning hours 

while the victims either were or appeared to be alone. Both 

occurred in places where the victims went daily. Both transpired 

near where Appellant lived. Thus, while the crimes are not 

identical, they have much in common. Appellant’s claim that 

“[t]here was nothing similar about the crimes” is inconsistent with 

the facts.

As to the other McLean factors, it is true that a significant 

amount of time passed between the two cases. This generally 

favors exclusion but is not dispositive. See Youngblood v. State, 348 

So. 3d 1260, 1261 (Fla. 1st DCA 2022) (“Although some of the prior 

bad acts occurred many years ago, that was but one factor for the 

trial court to consider in deciding to admit this evidence.”); Aguila 

v. State, 255 So. 3d 522, 529 (Fla. 3d DCA 2018) (“Although the

collateral crimes evidence and the charged offenses were allegedly

committed twenty years apart, the intervening time is insufficient

to render the collateral crimes evidence inadmissible.”).

Importantly, here, there was a glaring “intervening circumstance”:

Appellant was in prison for much of the time that followed his

sexual battery of H.E. Thus, while Appellant’s crimes are

separated by many years, that separation becomes less compelling

when one considers that for thirteen of those years, it would have

been impossible for Appellant to commit similar acts.

Further, the hallmarks of unfair prejudice are not present. See 

McLean, 934 So. 2d at 1262 (identifying considerations that cut 

against the admission of collateral acts, such as “the potential for 

unfair prejudice” and “whether the evidence of the prior acts will 

confuse or mislead jurors by distracting them from the central 

issues of the trial”). First, Appellant’s 1986 case, though heinous, 

was not as heinous as his 2007 case, which culminated in murder. 

Second, the evidence from Appellant’s previous case was not a 

feature of the trial. The State presented only two witnesses who 

testified about his earlier sexual battery. These witnesses testified 

in rebuttal after the State presented sixteen witnesses during its 

case-in-chief, and Appellant presented seven witnesses in his casein-chief. On such a record, no reasonable observer would claim the 
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earlier case became a feature of Appellant’s trial. See Whisby, 262 

So. 3d at 233 (“Additionally, W.W. was the only witness who 

testified about the collateral crime. The State’s other eleven 

witnesses, including S.C., testified as to Whisby’s charged offenses 

and how forensic evidence, notably DNA, linked Whisby to the 

crimes. Thus, the collateral-crime evidence did not ‘transcend the 

bounds of relevancy’ and become ‘an assault on the character of 

[Whisby].’” (alteration in original) (quoting Durousseau v. State, 55 

So. 3d 543, 551 (Fla. 2010))).

Finally, the trial court instructed the jury four times about the 

proper role of the evidence from the earlier case—twice before H.E.

testified, once before O’Steen testified, and again before 

deliberations. The law presumes the jury followed these

instructions. See Nolan v. Kalbfleisch, 369 So. 3d 346, 347 (Fla. 5th 

DCA 2023) (quoting Carter v. Brown & Williamson Tobacco Corp., 

778 So. 2d 932, 942 (Fla. 2000)). And the presence of these 

instructions reinforces our conclusion that Appellant was not 

unfairly prejudiced. See McLean, 934 So. 2d at 1263 (identifying 

the trial court’s “cautionary instructions to the jury both before 

[the prior victim’s] testimony and during the final charge” as one 

of the reasons the trial court did not err by allowing the

defendant’s prior sexual abuse victim to testify); Youngblood, 348 

So. 3d at 1261 (affirming the admission of testimony from the 

defendant’s previous sexual abuse victims because, inter alia, “the 

jury was repeatedly instructed as to the proper use of the collateral 

crimes evidence”).

III.

Appellant has not shown that the trial court abused its 

discretion when it allowed H.E. and O’Steen to testify about the 

sexual battery that Appellant previously committed. Accordingly, 

we affirm his convictions and sentences.

AFFIRMED.

EISNAUGLE and PRATT, 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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