DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KIRK GAGE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D22-1397

[April 26, 2023]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Dennis D. Bailey, Judge; L.T. Case No. 16-014572-

CF10A.

Clayton R. Kaeiser of Clayton R. Kaeiser, P.A., Miami, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf, 

Senior Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Affirmed.

FORST, J., concurs.

CONNER, J., concurs with opinion.

GROSS, J., dissents with opinion.

CONNER, J., concurring.

I concede the collateral crime evidence presented by J.C.’s testimony is 

a close call in terms of the similarities to appellant’s conduct toward the 

victim in this case. But I am satisfied that the trial court properly applied 

the legal principles for admitting collateral crime evidence in its 

consideration of J.C.’s testimony at a pretrial hearing and during trial. The 

pretrial order authorizing J.C.’s testimony is detailed in the trial court’s 

discussion of similarities, and I cannot agree with the dissent that 

discretion was abused. And while one difference may be whether appellant 

“completed” a sexual assault on J.C., J.C. clearly testified appellant was 
2

pulling her clothes off without her consent and she was fighting him, 

prompting him to beat her head against the pavement.

I share the dissent’s concern about J.C.’s “killer” testimony. In my view, 

the state could have proven appellant’s guilt without using J.C.’s

testimony. Thus, given J.C.’s focus on appellant having pounded her head 

on the pavement, I encourage prosecutors to be extremely careful about 

using unnecessary collateral crime evidence.

GROSS, J., dissenting.

I dissent because I believe that the prejudicial impact of one of the two 

Williams1 rule witnesses substantially outweighed its probative value 

under section 90.403, Florida Statutes (2020).

The main charge in this case was sexual battery. The victim met the 

defendant in a bar and ended up at his apartment. The defendant sexually 

assaulted her while she was passed out. The victim was upset because 

the defendant had taken photos of her on his phone. They struggled and 

he choked her and threw her out of his apartment.

Williams rule witness J.C. met the defendant outside of a bar. They 

shared an Uber that dropped them off at the defendant’s apartment. J.C.

refused to go inside. The defendant physically assaulted her and 

repeatedly banged her head into the concrete sidewalk. J.C. testified that 

she thought the defendant was trying to kill her. When a bystander 

approached, J.C. was able to get away, so no sexual assault was 

completed.

I find the charged crime and the J.C. incident to be insufficiently similar 

to justify the admission of J.C.’s testimony under the guidelines set forth

in McLean v. State, 934 So. 2d 1248 (Fla. 2006). Also, the probative value 

of J.C.’s “killer” testimony was substantially outweighed by the danger of 

unfair prejudice under section 90.403.

* * *

Not final until disposition of timely filed motion for rehearing.

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