DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARLON JOEL GRIMES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-127

[June 6, 2018]

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

Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2015-CF004186-AXXX-MB.

Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. 

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

CIKLIN, J.

Marlon Grimes contends that his conviction for possession of a 

firearm by a convicted felon should be reversed because the trial court 

abused its discretion in allowing the state to introduce multiple certified 

judgments of prior felony convictions into evidence in order to establish 

Grimes’ legal status. On the record before us, we find no error and we

affirm.

As the parties were preparing to begin voir dire, Grimes moved to 

exclude all but one of the certified judgments the state sought to enter 

into evidence to prove Grimes was a convicted felon. Grimes argued that 

only one judgment was necessary and that admission of more than one

would be “overly prejudicial.” The state explained that it sought to admit

six certified judgments encompassing eight felony convictions: three 

sales of cocaine, three possessions of cocaine, a fleeing and eluding, and 

resisting an officer with violence. 

The trial court noted that Grimes did not stipulate to the legal status 
2

element of the offense and that it was not apparent as to whether Grimes 

would dispute that element of the charged crime. Based on Harris v. 

State, 449 So. 2d 892 (Fla. 1st DCA 1984), the trial court fashioned a 

compromise: the state could introduce four certified judgments 

encompassing up to six convictions. The trial court believed that any 

more than that would be cumulative and unduly prejudicial. During 

trial, four certified judgments were entered into evidence. They reflected 

convictions for two sales of cocaine and three possessions of cocaine.

In moving for exclusion of all but one certified judgment, Grimes 

acknowledged the relevance of any one of the prior convictions. He 

focused on the cumulative and overly prejudicial effect of the other 

certified judgments. Thus, his objection was lodged pursuant to section 

90.403, Florida Statutes (2016), which provides that “[r]elevant evidence 

is inadmissible if its probative value is substantially outweighed by the 

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

needless presentation of cumulative evidence.”

The Florida Supreme Court has elaborated on the balancing inquiry of 

section 90.403:

“Unfair prejudice” has been described as “an undue 

tendency to suggest decision on an improper basis, 

commonly, though not necessarily, an emotional one.” 

Brown v. State, 719 So. 2d 882, 885 (Fla. 1998) (quoting Old 

Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. 

Ed. 2d 574 (1997)). This rule of exclusion “is directed at 

evidence which inflames the jury or appeals improperly to 

the jury’s emotions.” Steverson v. State, 695 So. 2d 687, 

688-89 (Fla. 1997). In performing the balancing test to 

determine if the unfair prejudice outweighs the probative 

value of the evidence, the trial court should consider the 

need for the evidence, the tendency of the evidence to suggest 

an emotional basis for the verdict, the chain of inference from 

the evidence necessary to establish the material fact, and the 

effectiveness of a limiting instruction. Taylor v. State, 855 So. 

2d 1, 22 (Fla. 2003). The trial court is obligated to exclude 

evidence in which unfair prejudice outweighs the probative 

value in order to avoid the danger that a jury will convict a 

defendant based upon reasons other than evidence 

establishing his guilt.

Wright v. State, 19 So. 3d 277, 296 (Fla. 2009) (emphases in original)

(quoting McDuffie v. State, 970 So. 2d 312, 327 (Fla. 2007)).
3

The trial court relied on Harris, 449 So. 2d at 896-98, which involved 

the application of section 90.403 to the admission of more than one prior 

conviction in a prosecution for possession of a firearm by a convicted 

felon. In Harris’s first trial, which ended in a mistrial, the parties 

stipulated to his status as a convicted felon. Id. at 894. During the 

second trial, certified copies of four of Harris’s prior felony convictions 

were introduced into evidence over his objection. Id. at 895.1 

Harris argued on appeal that the trial court erred in allowing the state 

to introduce documentary evidence of his four felony convictions, as the 

probative value was substantially outweighed by the prejudicial effect. 

Id. at 896. The First District rejected the argument, first recognizing that 

a prior conviction is a substantive element of the offense. Id. But the 

court also recognized that even if the introduction of more than one prior 

felony conviction was not necessary, “the test for admissibility of 

evidence of such prior convictions is one of relevancy, not necessity.” Id. 

(emphasis in original). The court explained that not all relevant evidence 

is admissible under the balancing test of section 90.403. Id. at 897. The 

court affirmed that a trial court has discretion to determine whether the 

probative value of evidence is substantially outweighed by the danger of 

unfair prejudice or the needless presentation of cumulative evidence: 

“The court must weigh the proffered evidence against the other facts in

the record and balance it against the strength of the reason for 

exclusion.” Id. (quoting C. Ehrhardt, Florida Evidence § 403.1 at 62-63 

(1977)). The court also recognized that “most evidence that is admitted 

will be prejudicial to the adverse party,” and it is only “evidence which

inflames the jury or appeals strongly to the jury’s prejudice” that triggers 

the protections of section 90.403. Id. (quoting C. Ehrhardt, Florida 

Evidence § 403.1 at 62-63 (1977)). The court requested guidance from 

the Florida Supreme Court on the issue of whether, in a prosecution for 

possession of a firearm by a convicted felon, the admission of more than 

one prior felony conviction and the particulars of each crime amounts to 

reversible error. Id. at 898. The Florida Supreme Court declined review. 

Harris v. State, 453 So. 2d 1364 (Fla. 1984).

Many years after Harris issued, the Florida Supreme Court, relying on 

Old Chief v. United States, 519 U.S. 172 (1997), held that “when a 

criminal defendant offers to stipulate to the convicted felon element of a 

charge of possession of firearm by a convicted felon, the State and the 

trial court should accept that stipulation.” Brown v. State, 719 So. 2d 

1 The opinion does not indicate whether Harris stipulated to his legal status 

when he was retried.
4

882, 889 (Fla. 1998). Under such a stipulation, the jury would not be 

informed of the number or nature of the prior convictions submitted by 

the state to the court, and the trial court would “instruct the jury that it 

can consider the convicted felon status element of the crime as proven by 

agreement of the parties in the form of a stipulation.” Id. The court 

recognized that there is a “risk of prejudice inherent in establishing that 

a defendant is a convicted felon,” but that in “the absence of a dispute 

that the prior conviction was indeed a felony, such an admission [of the 

prior substantive offense] can only prejudice the jury with absolutely no 

countervailing interest in its support.” Id. at 888 (alteration in original)

(citation omitted). The Florida Supreme Court also agreed with the 

United States Supreme Court’s assertion that the prosecution’s need for 

“evidentiary depth” in satisfying its burden of persuasion has “virtually 

no application when the point at issue is a defendant’s legal status, 

dependent on some judgment rendered wholly independently of the 

concrete events of later criminal behavior charged against him.” Id. 

(quoting Old Chief, 519 U.S. at 190). The court summed up: 

Offering into evidence anything beyond what is necessary to 

establish the defendant’s legal status as a convicted felon is 

irrelevant to the current proceeding, has “discounted 

probative value,” and may needlessly risk a conviction on 

improper grounds. Old Chief, 519 U.S. at 191, 117 S. Ct. 

644.

[W]hen presented with an “evidentiary alternative”–a 

defendant’s stipulation of prior convicted felon status–rather 

than attempting to balance the “twin tendencies” of prior 

conviction evidence, trial courts should ordinarily accept 

such a stipulation when requested by a criminal defendant.

Id. at 889 (footnote omitted).

Here, Grimes did not stipulate to the legal status element of the 

offense. If Grimes had offered a stipulation, then pursuant to Brown, the 

state would have been required to accept the stipulation, and the jury 

would not have been apprised of the actual number or nature of his prior 

convictions. 

With a stipulation lacking, the trial court had to engage in the 

balancing inquiry of section 90.403—the inquiry that was the focus of 

Harris. The trial court could have limited the state to fewer certified 
5

judgments, and perhaps it could have provided a limiting instruction.2 

But we are not able to say that the trial court abused its discretion.3

Affirmed.

WARNER and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

2 Defense counsel did not request such an instruction.

3 We do not address whether the trial court should have redacted the certified 

judgments of any information reflecting the nature of the offenses, as defense 

counsel failed to make such a request and the issue was not raised on appeal.