DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARTAVIOUS CARN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-1834

[May 29, 2019]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Barry M. Cohen, Judge; L.T. Case No. 2015CF002879A.

Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public 

Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Paul Patti, III, 

Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The defendant appeals his conviction and sentence for: (1) attempt to 

commit burglary while armed, (2) aggravated assault with a firearm, and 

(3) shooting into a building. He argues the trial court erred in a number 

of evidentiary rulings. We disagree and affirm. 

Late one night, the victim heard knocking on his front door. He 

approached the window near the door and asked who was there. The

person at the door answered: “this is Mike.” The victim turned on his 

porch light to see better. The person then asked him to open the door 

multiple times. 

When the person turned toward the window, the victim could see his 

face clearly. He described him as a black male with a low haircut like a 

mohawk. He recognized the face but could not think of his name. The 

victim also saw a firearm. 

He thought the person intended to rob or kill him. He immediately 

retreated from the window, went to the bedroom where his girlfriend was 
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sleeping, woke her up, and they both hid under the bed. His girlfriend 

called 911 when they suddenly heard a round of shots go off. 

 

At the scene, police collected shell casings as well as unused rounds, 

but no DNA connected the defendant to the crime. After the police left, the 

victim went on Facebook to see if he could find the shooter. When he 

found the person’s photos on Facebook, he brought them to the police. 

A detective created a photographic lineup that another officer presented 

to the victim. The detective knew the victim brought Facebook photos to 

the station, identifying the shooter, but never saw the photos and did not 

use them in the lineup. The detective put the lineup together using 

IntelliTect, a database that uses mugshots of individuals who have been 

arrested. 

He chose six individuals similar in sex, age, and facial features. The 

defendant’s photo was third. The victim picked the same person in the 

photo lineup as the person he found on Facebook. He was “100% sure” 

about his choice. The victim identified the defendant but admitted that he 

had never met or spoken to the defendant before; he had only seen him 

around a few times.

The State charged the defendant with: (1) attempt to commit burglary 

while armed, (2) aggravated assault with a firearm, and (3) shooting into a 

building. Before trial, the defendant moved to suppress the out-of-court 

and in-court identifications, alleging both stemmed from unduly 

suggestive police procedures. 

At the hearing, the detective testified that photo three had a darker gray 

background than the others. He also agreed that the individuals in photos 

two and five had thinner faces than the individual in photo three, and 

those in photos one, four, and six were more medium in their facial sizes. 

The trial court denied the motion to suppress the identifications, 

concluding they were not unduly suggestive. We agree and affirm on this 

issue without further comment.

At trial, the State asked the victim about a $20,000 settlement check 

he received. Defense counsel objected to relevance, which the trial court 

overruled. The victim testified he kept some cash from the settlement in 

his house, but had not told anyone and specifically not the defendant.

The defendant moved for judgment of acquittal. He argued the State 

had neither proven he committed the charged crimes nor had the specific 

intent to commit an offense within the victim’s residence. The trial court 
3

denied the motion. 

Before trial, prior defense counsel gave notice of an alibi witness, the 

defendant’s cousin, but his trial counsel was unaware of this until the 

middle of trial. The State objected to the witness because trial counsel 

failed to list the witness and had not disclosed an alibi defense. The court 

allowed the defendant’s cousin to testify. 

Defense counsel also asked to admit a Facebook video that purported 

to show the defendant walking in front of the stage at a club he claimed to 

be on the night of the incident. The State objected that the defense had 

failed to disclose the video. The court held a Richardson1 hearing. 

The trial court found there was a discovery violation, and it was 

substantial because the video corroborated the defendant’s cousin’s 

testimony. The court also found the video prejudicial because it 

corroborated the defendant’s alibi and the club was no longer in business. 

The court excluded the alibi video, but allowed defense counsel to file it as 

a proffer.

The defendant testified and unequivocally denied the allegations. He 

claimed to have gone to a club with his cousin. His cousin took the stage 

around 1:00 a.m. and they left the club around 3:00 a.m. He then went 

with his children’s mother to pick up their kids and go home.

 

The defendant’s cousin explained that he and the defendant were at the 

club on the night of the incident. They arrived around 1:30 a.m. He took 

the stage at 2:45-2:50 a.m. and performed two songs. He believed they all 

left between 3:05-3:15 a.m. When he got home, he called the defendant 

to make sure he made it home safe. 

 

The defendant renewed his motion for judgment of acquittal, arguing 

the State failed to prove a prima facie case of identity, failed to prove 

attempted burglary, and failed to prove any overt acts amounting to 

aggravated assault. The trial court denied the motion. The defendant also 

moved for mistrial based on the exclusion of the alibi video, which the 

court denied.

The jury found the defendant guilty on all three counts. The defendant 

moved for new trial, and a judgment of acquittal and/or arrest of 

judgment, which the court denied. The defendant now appeals.

1 Richardson v. State, 246 So. 2d 771 (Fla. 1971).
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The defendant argues the trial court erred in excluding the alibi video 

as the discovery violation was inadvertent and less extreme remedies were 

available. The State responds that the alibi video was properly excluded 

because it was highly prejudicial, and its exclusion did not prejudice the 

defense because the court allowed his alibi witness to testify.

When the state claims defense counsel committed a discovery violation 

“‘the court must conduct a Richardson hearing to inquire about the 

circumstances surrounding the [] violation of the discovery rules and 

examine the possible prejudice to the [state].’” Dabbs v. State, 229 So. 3d 

359, 360 (Fla. 4th DCA 2017) (citation omitted).

“The extent to which sanctions should be imposed for discovery 

violations depends upon whether the violation was inadvertent or willful, 

whether the violation was trivial or substantial, and what effect, if any, it 

had upon the ability of the affected party to properly prepare for trial.” 

State v. Plachta, 415 So. 2d 1356, 1358 (Fla. 2d DCA 1982). 

“Where the issue involves possible exclusion of defense evidence, the 

‘extreme sanction of excluding [] evidence . . . should be used only as a 

last resort’ and ‘it is incumbent upon the trial court . . . to determine 

whether any other reasonable alternatives can be employed to overcome . 

. . possible prejudice,’ including declaration of a mistrial.” McDuffie v. 

State, 970 So. 2d 312, 322 (Fla. 2007) (citations omitted).

Here, the trial court found the discovery violation was not willful, but 

the video was highly prejudicial.2 Defense counsel suggested a 

continuance, publishing the video with a special instruction about the late 

disclosure, or declaring a mistrial. The trial court excluded the video. 

The error in excluding the video is harmless. The video is a video of a 

video on someone’s phone. The quality is poor at best. As the parties 

agreed, and is readily ascertainable from the video, no person is 

identifiable without explanation from the witness. Thus, the video offered

no proof of an alibi on its own. 

As such, the critical evidence was the alibi witness, who the court 

allowed to testify. Any error in excluding the video was harmless beyond 

a reasonable doubt. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

2 The court did not view the video, but we have reviewed it on appeal. The person 

the defendant claims is him is barely identifiable. 
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The defendant next argues the trial court erred in allowing the victim 

to testify regarding his $20,000 settlement monies because this 

information lacked relevancy. The State responds the evidence was 

relevant to infer the defendant’s intent to commit an offense in the victim’s 

home.

We review the admissibility of evidence for an abuse of discretion

limited by the rules of evidence. Nardone v. State, 798 So. 2d 870, 874 

(Fla. 4th DCA 2001).

“Relevant evidence is evidence tending to prove or disprove a material 

fact.” § 90.401, Fla. Stat. “Generally, any evidence relevant to prove a fact 

at issue is admissible unless precluded by a specific rule of exclusion.” 

Harden v. State, 87 So. 3d 1243, 1246 (Fla. 4th DCA 2012). “[E]vidence 

may be admitted in a criminal case if it is relevant as to the motive for the 

crime involved.” State v. Riechmann, 777 So. 2d 342, 365 (Fla. 2000). 

Here, the defendant argues evidence of the victim’s settlement would 

have only been relevant if he knew about it. But, the State needed to 

propose a motive for the robbery, which it did. The State showed the victim 

had a large sum of money in his home, and the State argued this fact may 

have been common knowledge within the neighborhood.

The court did not abuse its discretion in admitting the victim’s 

testimony concerning the settlement. 

In his fourth argument, the defendant claims the State failed to prove 

the shooter intended to enter the home and commit a crime within. The 

State responds the record contains sufficient evidence to infer the

defendant intended to commit an offense inside the victim’s home. Here, 

the defendant falsely identified himself as someone the victim knew to gain 

entry to the victim’s home. The use of this false name shows the defendant 

intended to gain entrance by trickery or deceit. Gordon v. State, 745 So. 

2d 1016, 1018 (Fla. 4th DCA 1999) (holding “consent to enter obtained by 

trick or fraud ‘is actually no consent’” and therefore entrance obtained this 

way will support a conviction for burglary). We agree with the State and 

comment no further on this issue.i

Affirmed.

KLINGENSMITH and KUNTZ, JJ., concur.

* * *
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Not final until disposition of timely filed motion for rehearing.

i We find no merit in the last issue concerning the trial court’s denial of the 

defendant’s motion for new trial.