### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

MARTAVIOUS CARN
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 17

- 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.

M AY
, 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 arg u es the trial court erred in a number

o f evidentiary rulings. We disagree and affirm.

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

a pproached the window near the door and a sked who was there. The

person at the door answered : “this is Mike.” T he v ictim 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 , t he victim could see his face clearly. He described him as a black male with a low haircut like a

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

v ictim also saw a firearm.

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

retr eated from the window, went to the bedroom where his girlfriend was2 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 n o DNA connected the d efendant to the c rime . After the police le ft

, the

v ictim went on Facebook to see if he could find the shooter

. When he

found the person’s photos o n Facebook

, he brought th em to the police.

A d etective created a photographic lineup that another officer presented

to the v ictim. The detective knew t he v ictim brought Facebook photo s to
the station , identifying the s hooter , b ut never saw the photo s and d id not

use them in the lineup. The d etective put the lineup together using IntelliTect, a database that uses mugshots of individuals who have be en arrested.

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

d efendant ’ s photo was third. T he v ictim picked the same person in the photo lineup as the person he found on Facebook. He was “100% sure”

about his choice. The v icti m identified the d efendant but admitted that he had never met or spoken to the d efendant befor e; h e had only seen him

around a few times.

The State charged the defend ant with: (1) attempt to commit burglary while armed, (2) aggravated assault with a fire arm, and (3) shooting into a building. Before trial, the d efendant moved to suppress the out

- of

- court
and in

- court identification s , 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 photo s 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.

Th e trial court denied the motion to suppress the identification s , concluding they were not unduly suggestive. We agree and affirm on this

issue without further comment

.

At trial, t he State asked the v ictim about a $20,000 settlement check

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

overruled. The v ictim testified he kept some cash from th e settlement in his house, but had not told anyone and specifically not the defendant

.

T he d efendant moved for judgment of acquittal. He argued the State had neither proven he committed the charged crimes n or had the specific

intent to commit an offen s e within the victim’s residence . The trial court3 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. T he court

allowed the d efendant’s cousin to testify.

D efense counsel also asked to admit a Facebook video that purported

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

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

failed to disclose the video

. The court held a Richardson 1 hearing.

T he trial court found there was a discovery violation , and it was

substantial because the video corroborated the d efendant’s cousin’s testimony. The court also found the video prejudicial because it

c orroborated the d efendant’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 d efendant testified and unequivocally den ied the allegations. H e 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 d efendant’s cousin explained that he and the d efendant 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 t wo songs. H e believe d they all

left between 3:05

- 3:15 a.m. When he got home

, he called the d efendant

to make sure he made it home safe.

The de fendant renewed his motion for judgment of acquittal, arguing

t he 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. T he d efendant also

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

court denied.

T he jury found the d efendant guilty on all three counts. T he d efend ant 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).4 The d efendant argues the trial court erred in excluding the alibi video as the discovery violation was inadvertent and less extreme remedies were

available. T he 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 wh at 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 mistr ial.” McDuffie v.

State , 970 So. 2d 312, 32 2 (Fla. 2007) (citation s 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 parti es agreed, and is readily ascertainable from the video, no person is identifiable without explanation from the witness. Thus, the video offer ed no proof of an alibi on its own.

As such, the critical evidence w as 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. T he person

the defendant claims is him is barely identifiable.5 The d efendant next argues the trial court erred in allowing the v ictim to testify regardin g his $20,000 settlement monies because this information lacked relevancy. The State responds the evidence was

relevant to infer the d efendant’s intent to commit an offense in the v ictim’s

home.

We review the admissibility of evidence for an abuse of dis cretion 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. Riechm ann , 777 So. 2d 342, 365 (Fla. 2000)

.

Here, the d efendant argues evidence of the v ictim’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 v ictim

had a l arge 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, t he d efendant 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

d efendant intended to commit an offense inside the v ictim’s home. Here,

the d efendant falsely identif ied himself as someone the victim knew to gain entry to the v ictim’s home. The use of this false name shows the d efendant intended to gain entrance by trickery or deceit. Gordon v. State , 745 So. 2d 1016, 1018 (F la. 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.

K LINGENSMITH and K UNTZ

, JJ., concur.

* * *6 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.