DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOSE REYNA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D19-2306

[August 26, 2020]

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

Beach County; Cheryl Caracuzzo, Judge; L.T. Case No. 

502015CF004073A.

Kristen A. Kawass of Law Offices of Kawass, P.A., Miami, for appellant.

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

Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

We reverse convictions for three counts of sexual battery because the 

trial court abused its discretion in admitting evidence of a collateral crime. 

We remand for a new trial in which the collateral crime evidence is 

excluded.

The state charged Jose Reyna with three counts of sexual battery under 

section 794.011(5)(b), Florida Statutes (2015), by a person eighteen years 

of age or older upon a person over eighteen. All three counts arose from 

one encounter; count 1 alleged digital penetration of the victim’s vagina, 

count 2 alleged oral penetration or union with the victim’s vagina, and 

count 3 alleged penile penetration or union with the victim’s vagina.

The state timely filed a notice of its intent to offer Williams1 rule 

evidence pursuant to section 90.404(2)(c), Florida Statutes (2015). The 

state sought to introduce evidence of a separate incident that occurred in 

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

October 2010, described in more detail below. After an evidentiary 

hearing, the circuit court ruled that the testimony was admissible.

The Evidence at Trial

The State’s Case

The victim testified that she met appellant through his wife, with whom 

she worked. She vacationed with the couple and had stayed at their house 

in a spare bedroom numerous times after socializing with them. Prior to 

the night of the incident, nothing inappropriate had occurred between her 

and appellant.

On January 18, 2015, the victim made plans with the wife to socialize. 

The game plan for the evening was to hang out, have fun, and help the 

victim forget an unhappy personal matter. The victim went to the Reyna 

home the evening of the incident with a packed bag because she was 

planning on staying overnight. 

Using her car, the victim drove the Reynas to the Clematis Street area

of West Palm Beach. Their first stop was a wine bar, where they ordered 

food, drinks, and a bottle of wine. 

The trio next went to a different bar where they ordered three rounds 

of drinks, danced, and had a good time. By the time they left, the victim 

testified that she was “buzzed.” Next, the three went to a restaurant, 

owned by an acquaintance of the Reynas, for more drinks.

After leaving the restaurant, the group returned to the Reyna home. 

Because the house was being renovated, one of the bedrooms was 

unavailable. The Reynas took the other bedroom, and the victim prepared 

to sleep on the couch in the living room. The couch was an L-shaped, 

sectional couch. Once they arrived at the home, the victim poured herself 

a glass of red wine from a bottle in the kitchen and sat on the couch. She

spilled the wine on her t-shirt and changed into something else. Then she 

had some tequila. 

The victim fell asleep on the couch. The victim was awakened by 

someone kissing her on the mouth. She testified that 

it was kind of one of those like “What is happening?” Once I 

opened my eyes, it was dark. Like dark hair, dark skin. It 

didn’t feel familiar. It didn’t smell familiar. I mean, if that 

even—it just felt very strange and very disorienting. I 
3

remember thinking—and then once I realized what was 

happening, I was just like “What are you doing?” It was just 

such a strange, almost shocking “What are you doing?”

The victim realized that it was appellant. She swatted at him and asked,

“What are you doing?” She told him he needed to go back to bed. 

The victim described the rest of the night as a series of “flashes.” She 

kept falling back asleep, only to be awakened by different types of 

touching. 

The next time she awoke to appellant kissing her chest, after having 

unzipped her fleece pullover. She repeatedly swatted at him, asked him 

what he was doing, and told him, “Go to bed with your wife.”

The next thing the victim remembered was that appellant “put his 

hands down my shorts and began to stick his fingers inside of me.” It was 

uncomfortable and the victim pushed him away to make him stop. At 

another time, she was awakened by appellant performing oral sex upon 

her. Concerning the third form of assault, the victim testified that 

at some point, he was in front of me and in between my legs. 

And at some point, I did feel him—I felt him actually put his 

penis inside of me. . . . [When appellant was] on top of me and 

actually was having sex with me, I did finally get my feet up 

on his hips and push him away and say, “No.”

The prosecutor asked the victim why she didn’t yell or scream during 

the events on the couch. The victim explained:

I mean, this is—this is my friend. This is somebody that I 

know. And also it was—I was completely humiliated that his 

wife was my really good friend. And I didn’t want her to know. 

I didn’t—it was just such a—it wasn’t even that terribly what 

I would call violent. It was just so inappropriate and so 

shocking and so unexpected. I’m not really the type of person 

that would scream or get that terribly emotional, anyway. But 

I—I mean, I didn’t want [the wife] to know what was going on. 

And I did not understand why he was doing it.

After the final assault, the victim fell asleep. She woke up the next 

morning and took a shower. While in the shower, the victim realized that 

something was wrong. She had abnormal discharge and cramping in her 

abdomen. She threw her clothes in her overnight bag and left the house. 
4

For the rest of the day, the victim hung out at home and reported the 

incident to no one.

The victim testified that her memories about the incident returned at 

work the next day. She began panicking but continued working. When 

she encountered appellant’s wife, she did not tell her what had happened 

and insisted that she was busy with work.

After the victim told her sister about the assault, the victim decided to 

go to the hospital, where a nurse performed a rape exam and the incident 

was reported to the police. 

Later, the police contacted the victim to participate in recorded, 

controlled calls with appellant. On the calls, when confronted by the 

victim, appellant repeatedly said he was sorry, but he also said he had no 

memory of anything:

. . . [T]o tell you the truth what I remember is . . . being told 

to go to bed by [my wife]. And then I—and then I went to bed 

and then I woke up and I had this massive headache.

At another point in the call he said “I don’t remember. And I apologize 

because seriously, I don’t understand. I have to now figure out what the 

hell’s now going on in my head.”

The Williams Rule Testimony

At the admissibility hearing, the Williams rule witness identified herself 

as a detective at a local law enforcement agency, assigned to a unit that 

focused on sex crimes. She said she had socialized occasionally with the 

Reynas.

In October 2010, the witness made plans to attend the “Moonfest” 

festival on Clematis Street with the Reynas and another person. They met 

at the Reynas’ house for food and drinks before leaving for the festival. On 

Clematis Street, they danced, talked, and drank “to the point of 

impairment.” 

At one of the bars, the witness and appellant were in the back “just 

talking [and] hanging out.” Somehow, they got pushed out the back door 

into the alley and then the door closed. The door was flush with the wall 

and there was no handle, so they could not get back into the bar from the 

alley.
5

The witness and appellant walked to a bench and sat down. They tried 

to call appellant’s wife. Appellant started trying to kiss the witness and 

said she was beautiful. She protested that appellant was married and 

pushed him off. At one point, the witness testified that appellant

leaned over on top of me and started shoving his hand up 

under my skirt and ended up like touching in my vagina . . . . 

He just kind of like got on top of me. And then just shoved 

his hand—it was really quick. He just shoved his hand up my 

skirt.

Appellant’s sudden action ripped her pantyhose. The witness pushed 

appellant to get out from underneath him and “took off running.” She ran 

to a convenience store and used the phone to call her mother, who came 

to pick her up. At trial, the witness testified consistently with her 

testimony at the prior hearing, adding just a few details.

The Defense Case

Appellant testified at trial. He claimed he had no memory of assaulting 

the victim. On the night of the incident, he fell asleep on the couch in the 

living room, which he often did when he had back problems. The next 

thing he remembered was his wife waking him up and taking him to bed. 

He said he was completely clothed when his wife came to get him. 

The wife testified that she never saw anything inappropriate occur 

between appellant and the victim. Both Reynas testified that a key point 

of the evening was to discuss the victim’s poor job performance and to alert 

her that her job was in jeopardy. Both Reynas testified that appellant 

suffered from a herniated disc and that he took a prescribed medication, 

Flexeril, after he arrived back at home the evening of the incident

Appellant denied the Williams rule witness’s allegations. He stated that 

the witness kissed him once. He said no other sexual contact occurred. 

As to the controlled calls, appellant said he was in shock and disbelief. 

He testified that the victim was a close friend in a fragile state of mind from 

a breakup over the holidays. He did not know what was going on and he 

wanted to calm both her and the situation down. 

Appellant was convicted of all three crimes. On appeal, he primarily 

raises the Williams rule issue.
6

The trial court abused its discretion by admitting collateral crime 

evidence under section 90.404(2)(c) because, under the McLean v. 

State analytical framework, there were insufficient points of 

similarity between the charged crime and the collateral crime

For years, the admissibility of other crimes, wrongs, or acts was 

evaluated under section 90.404(2)(a), Florida Statutes. The current 

version of section 90.404(2)(a) provides:

Similar fact evidence of other crimes, wrongs, or acts is 

admissible when relevant to prove a material fact in issue, 

including, but not limited to, proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident, but it is inadmissible when the evidence 

is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (2020).

This section “restate[d] the Florida law as determined by Williams v. 

State,” 110 So. 2d 654 (Fla. 1959). Charles W. Ehrhardt, Florida Evidence

§ 404.9 (2012 ed.). Applying this section of the evidence code, courts were 

cautious when asked to admit collateral crime evidence in sexual battery 

cases, so as not to run afoul of the statutory prohibition against admitting 

such evidence “solely to prove bad character or propensity.” See, e.g.,

Feller v. State, 637 So. 2d 911, 916 (Fla. 1994) (addressing Williams rule 

issue in order to offer guidance on retrial, explaining that sexual battery 

on an underage child is not uniformly admissible under section 90.404(2), 

and emphasizing that the acts at issue had only two things in common—

they involved the same type of offense and both victims were young girls); 

Williams v. State, 621 So. 2d 413, 416 (Fla. 1993) (observing that “because 

consent is unique to the individual the mere fact that the victim of an 

unrelated assault did not consent cannot serve as evidence of nonconsent 

by the victim of the charged offense”); Frieson v. State, 512 So. 2d 1092,

1093 (Fla. 2d DCA 1987) (in a sexual battery prosecution, it was error to 

admit evidence that defendant had committed another sexual battery 

where only similarity between the two offenses was that both were sexual 

batteries).

In 2011, the Florida Legislature enacted section 90.404(2)(c), Florida 

Statutes, applicable when a defendant is charged with a “sexual offense.” 

Ch. 2011-220, § 2, Laws of Fla. Section 90.404(2)(c) provides in relevant 

part:
7

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. (2018). Subsection 90.404(2)(c)2. defines a 

“sexual offense” as including the crimes charged in this case. 

The wording of section 90.404(2)(c)1. is strikingly similar to that of the 

previously enacted section 90.402(2)(b)1., which applies in “child 

molestation” cases. Because of this similarity, courts have applied the 

admissibility framework of McLean v. State, 934 So. 2d 1248 (Fla. 2006),

to evidence introduced under 90.404(2)(c), even though McLean involved a 

child molestation case falling under section 90.404(2)(b). See, e.g., Whisby 

v. State, 262 So. 3d 228, 232 (Fla. 1st DCA 2018); Charles W. Ehrhardt, 

Florida Evidence § 404.18 (2012 ed.).

Like the statute at issue in McLean, the plain language of section 

90.404(2)(c)1. is broad—collateral crime evidence is “admissible and may 

be considered for its bearing on any matter to which it is relevant.” §

90.404(2)(c)1., Fla. Stat. (2018) (emphasis added). In McLean, the Florida 

Supreme Court narrowed the broad sweep of section 90.404(2)(b)1. by 

reading the statute in conjunction with section 90.403, Florida Statutes 

(2005), which requires that the probative value of relevant evidence be 

weighed against its potential for unfair prejudice. McLean, 934 So. 2d at 

1251. The supreme court resolved a due process challenge to section 

90.404(2)(b) by applying section 90.403 considerations to ensure that the 

door is not opened “to introduction of any and all propensity evidence in 

sexual molestation cases.” Id. 

Central to the section 90.403 analysis mandated by McLean is the 

notion of similarity between the collateral act and the charged offense. In 

upholding the constitutionality of the statute, the court noted that “[t]he 

similarity of the collateral act . . . and charged offense is a critical 

consideration for the trial court in conducting an appropriate weighing 

under section 90.403.” Id. at 1259. 

The court explained that the similarity between the two acts is 

important in determining admissibility in two ways: 

First, the less similar the prior acts, the less relevant they are 

to the charged crime, and therefore the less likely they will be 

admissible. Second, the less similar the prior acts, the more 
8

likely that the probative value of this evidence will be 

“substantially outweighed by the danger of unfair prejudice, 

confusion of issues, misleading the jury, or needless 

presentation of cumulative evidence.” 

Id. at 1259 (quoting § 90.403, Fla. Stat.). 

McLean set forth a non-exclusive list of factors a trial court should 

consider when determining whether the probative value of previous sexual 

offenses is substantially outweighed by the danger of unfair prejudice:

(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. at 1262. 

Since section 90.404(2)(c) was enacted in 2011, several cases have 

interpreted the statute. For collateral sex crimes to be admissible, courts 

have applied section 90.404(2)(c) to require significant similarity between 

the collateral evidence and the charged crime, evidence so similar and 

specific that it resembles a clear pattern of conduct. This is in contrast to 

child molestation prosecutions where collateral crime evidence under 

section 90.404(2)(b) is a common prosecutorial tool. See Pridemore v. 

State, No. 4D19-1555, 2020 WL 4496072 (Fla. 4th DCA Aug. 5, 2020). The 

law requires greater similarity under 90.404(2)(c) than in child molestation 

cases because the adult cases can involve defenses—identification and 

consent—that are not present in crimes against children. Evidence can 

be more nuanced in adult cases and subject to different interpretations.

For example, in Whisby, the First District held that collateral crime 

evidence was admissible where it occurred less than twenty-four hours 

from the charged crime and in an “almost identical fashion.” 262 So. 3d 

at 232. In both instances, the defendant forced the victim into his car at 

gunpoint, drove her to various locations while coercing her to engage in 

sexual acts, and concluded the incident by using a tissue or napkin to 

either clean himself or the victim. Id. Also, both incidents involved women 

who had previously had intimate relationships with the defendant. Id.

Courts find adequate similarity under 90.404(2)(c) when the 

defendant’s conduct conforms to an identifiable pattern. See, e.g., Bruce 
9

v. State, 44 So. 3d 1225, 1229 (Fla. 5th DCA 2010) (“The victim’s and 

[witness’s] testimony demonstrated a clear pattern of conduct.”). In Bruce, 

the court pointed to the numerous and specific similarities present in both 

instances in holding that the collateral evidence was admissible. See id. 

The victims were both women of the same age, the defendant knew both 

women from church, and he knew both were single and lived alone. Id. 

The defendant befriended the women by performing handyman services 

and commiserating with each about the hardship of caring for a loved one 

with disabilities. Id. During the course of performing handyman services, 

he not only made sexual advances but fondled the breasts of each. Id. 

Afterwards, he called both women expressing his love, then anger when 

they rejected his advances. Id. The court noted that the only difference 

was that the defendant successfully completed the sexual battery against 

the victim but was unable to with the collateral act witness. Id.

Similarly, in Wade v. State, 265 So. 3d 677 (Fla. 1st DCA 2019), the 

court found two prior acts similar to the charged crime, where in all three 

instances the defendant approached the victims on a bicycle, threatened 

them with a knife, and forced them to have sex with him. In Mann v. State, 

281 So. 3d 503 (Fla. 4th DCA 2019), the court found the prior act was 

sufficiently similar where both victims testified that the defendant 

kidnapped then raped them, and where the crimes took place within one 

month of each other. In Pitts v. State, 263 So. 3d 834, 840 (Fla. 1st DCA 

2019), the court held that collateral crime evidence was admissible where 

in both acts, the defendant was accused of digitally penetrating a female 

victim while she was sleeping or passed out following a night of drinking. 

Here, the charged crimes were similar to that in Pitts, but the collateral 

evidence involved a different criminal act. There is no clear pattern of 

conduct between the charged crimes and the collateral act. The attack on 

the Williams rule witness on a bench in a public place is only minimally 

probative of the charged crime—repeated sexual batteries against a 

passed-out woman on a couch in a residential living room. As the supreme 

court observed in McLean, the less similar the prior acts are to the charged 

crime, the less relevant they are to that crime. 934 So. 2d at 1259.

In this case, there are some similarities between the charged crimes 

and the collateral conduct; both cases involved the consumption of alcohol 

on Clematis Street and an accuser who socialized with the Reynas. 

However, these similarities are outweighed by the differences between the 

two crimes, so there is no clear pattern of sexual misconduct:

• The victim was a close friend of the Reynas who regularly 

slept over at their home; the Williams rule witness was a 
10

casual acquaintance who socialized occasionally with the 

Reynas.

• The charged crimes occurred on a couch in a private living 

room; the collateral act occurred on a public bench in an 

alley.

• The victim had a work relationship with the Reynas; the 

Williams rule witness had no such work relationship.

• The charged crimes were three sexual batteries that 

occurred over an extended period of time, with the attack 

occurring as the victim hovered between consciousness 

and sleep; the Williams rule witness was very much awake 

during the collateral act, a sudden groping of her genital 

area.2

• There was a gap of over four years between the two 

incidents.

Because of the significant disparities between the charged crimes and 

the collateral act, that act is only weakly probative of the charged crimes.3 

As the supreme court observed in McLean, where a collateral crime is so 

minimally probative, it is “more likely that the probative value of this 

evidence will be ‘substantially outweighed by the danger of unfair 

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

presentation of cumulative evidence’” under section 90.403. 934 So. 2d 

at 1259. Moreover, in this case, the fact that the Williams rule witness 

was a detective in a sex crimes unit carried an additional risk of undue 

prejudice in a section 90.403 analysis, as juries often afford great weight 

to the testimony of police officers. See, e.g., Salomon v. State, 267 So. 3d 

25, 32 (Fla. 4th DCA 2019) (explaining that police officers “bring with their 

testimony an air of authority and legitimacy,” and that a jury “is inclined 

to give great weight” to such testimony).

2 We do not blame the victim here. We are simply analyzing the manner in which 

the acts were committed, as the law requires us to do under McLean. 

3 The dissent dismisses significant differences between the charged acts and the 

collateral act as “immaterial.” However, the dissent’s view of similarity would 

open the door too wide under section 90.404(2)(c)—any collateral act of sexual 

battery would be admissible as Williams rule evidence in the prosecution of the 

charged act, so long as both acts involved alcohol and an opportunity that arose 

when the defendant was alone with the accuser.
11

Without the collateral evidence, the jury faced a difficult question in 

this case—what to make of testimony of the two primary actors who had 

consumed such large amounts of alcohol that their memories of the crucial 

night were dim? In such a circumstance, evidence of the prior, dissimilar 

conduct smoothed over the difficulties in the state’s case. In applying 

section 90.404(2)(c), trial courts are gatekeepers in ensuring that evidence 

of prior acts of sexual misconduct do not unfairly prejudice a defendant or 

mislead the jury. Here, the trial court abused its discretion in admitting 

the Williams rule witness’s testimony. Without adherence to the McLean

requirement of significant similarity, trials of sexual offenses would too 

often descend into character assassination by the introduction of 

marginally similar bad acts.

The dissent uses a buffet approach to the law of evidence by combining 

distinct portions of the evidence code to buttress its case for admissibility. 

The dissent suggests that the collateral crime evidence was admissible to 

prove the “absence of mistake,” a consideration under subsection 

90.404(2)(a). However, mistake is not a defense to sexual battery—a 

defendant cannot avoid criminal responsibility for attacking the victim by 

saying that he thought he was having consensual sex with his wife.

Under subsection 90.404(2)(a), collateral crime evidence is admissible 

only “when relevant to prove a material fact in issue.” “State of mind is 

not a material fact in a sexual battery charge, nor is intent an issue.” Coler 

v. State, 418 So. 2d 238, 239 (Fla. 1982). As the Florida Supreme Court 

has explained, “in rape prosecutions, it is clear that while a general intent 

is involved in the crime, no specific intent is requisite other than that 

evidenced by the doing of the acts constituting the offense.” Askew v. 

State, 118 So. 2d 219, 222 (Fla. 1960). Whether appellant knew the 

identity of the victim he attacked was not a material fact in issue in this 

case, so the collateral crime evidence was not admissible to prove an 

absence of mistake or accident under subsection 90.404(2)(a). See Hebel 

v. State, 765 So. 2d 143, 144 (Fla. 2d DCA 2000) (in case involving 

defendant’s sexual battery of “his then spouse,” evidence of other crimes 

held inadmissible to prove the defendant’s state of mind); Killian v. State, 

730 So. 2d 360, 362 (Fla. 2d DCA 1999) (in prosecution for sexual battery 

of a child, holding that the state’s introduction of “dirty” books in the 

defendant’s possession to show his state of mind and intent “was improper 

because state of mind is not a material fact in a sexual battery case and 

intent is not an issue”); Williams v. State, 619 So. 2d 487, 493 (Fla. 1st

DCA 1993) (holding that where the state sought to admit evidence of other 

crimes to prove “absence of mistake or accident,” such evidence was 
12

inadmissible where “there was no material issue of fact relating to either 

of these facts”).

Finally, the dissent underplays the impact of the collateral crime 

evidence by stating that the testimony “took up only ninety minutes” of 

witness testimony. The prosecutor emphasized the collateral crime 

evidence in closing argument to argue that appellant had the propensity 

to commit the charged crimes. For example, the prosecutor argued:

What we’re saying is we know that Jose Reyna, when 

presented with the opportunity of a woman who is intoxicated, 

who . . . is maybe a little disoriented, when is alone with her 

away from his wife, he will take the opportunity to do 

something to her without her consent. And it’s a sexual act.

***

All of the evidence points to one conclusion. There is the 

testimony of [the victim]. The defendant on the controlled call 

supports what she sa[id] happened. The testimony of [the 

Williams rule witness]. This is not some mistake. This is not 

some confusion. This is what he does.

On the remaining issue, we hold that the trial judge did not abuse her 

discretion in allowing appellant’s prior convictions to be used for 

impeachment.

Reversed and remanded for a new trial.

WARNER, J., concurs.

GERBER, J., concurs in part and dissents in part with opinion.

GERBER, J., concurring in part and dissenting in part.

I respectfully dissent from the majority’s holding that the trial court 

abused its discretion by admitting evidence of appellant having committed 

a sexual battery upon the Williams rule witness. My dissenting opinion 

will be presented in two sections: (1) the state properly relied upon the 

Williams rule sexual battery to prove the instant sexual battery; and (2) 

the similarities between appellant’s sexual battery of the instant victim 

and the Williams rule witness are not outweighed by the differences 

between the two crimes.

1. The state properly relied upon the Williams rule
13

sexual battery to prove the instant sexual battery.

In the second controlled phone call between appellant and the victim 

in the instant case, the victim confronted appellant for having kissed her, 

licking her chest, putting his hands down her pants, performing oral sex 

on her, and raping her. Appellant responded: 

Honey, I am so sorry. Please, I’m so sorry. I didn’t -- I didn’t 

mean to touch you. I was thinking maybe that you was [my 

wife] maybe, I don’t know. I’m so sorry. I apologize, I’m so 

sorry. Please. Please, I am so sorry. I’m trying to remember.

(emphasis added).

Based on appellant’s statement, the state filed its notice of its intent to 

offer Williams rule evidence pursuant to section 90.404(2)(c)1., Florida 

Statutes (2015), to show that appellant’s sexual battery of the victim was 

not an innocent mistake of thinking he was having consensual sexual 

relations with his wife. Specifically, the state alleged:

According to [the Williams rule witness], she met the 

defendant through his wife. On the date of the sexual battery, 

[the Williams rule witness] was hanging out with the 

defendant and his wife. While at a club in downtown West 

Palm Beach, the Defendant pushed [the Williams rule witness] 

through a door. The Defendant became aggressive and ripped 

her stockings and penetrated her vagina with his fingers. This 

evidence is relevant to issues of ... motive, intent, to show 

absence of mistake, and to show the defendant’s sexual 

interest in women he meets through his wife.

(emphasis added).

Although the state’s Williams rule notice expressly referred to section 

90.404(2)(c)1., which provides that evidence of the defendant’s other

sexual offenses are “admissible and may be considered for its bearing on 

any matter to which it is relevant” (emphasis added), the state went a step 

further by specifically identifying the material facts upon which the 

Williams rule evidence was relevant, that is, to prove appellant’s motive, 

intent, and absence of mistake, as permitted under the narrower section 

90.404(2)(a).

The probative value of this Williams rule evidence was not substantially 

outweighed by the danger of unfair prejudice to appellant, based on the 
14

non-exclusive McLean factors. The manner in which the acts were 

committed were extremely similar:

• Both the Williams rule witness and the instant victim were single 

adult females. The instant victim was thirty-seven years old at the 

time of the act charged. Although the Williams rule witness was 

never asked her age, other contextual clues in her testimony (years 

of work experience) suggest she was also in her thirties when the 

prior sexual battery occurred.

• Both the Williams rule witness and the instant victim had become 

friends with appellant’s wife and had socialized with appellant and 

his wife at their home.

• Both the night of the prior sexual battery and the night of the instant 

sexual battery began with the Williams rule witness and the instant 

victim drinking at the Reynas’ home.

• Both nights continued with the Williams rule witness and the 

instant victim going out with appellant and his wife for drinking and 

dancing at bars within the downtown West Palm Beach 

entertainment district.

• Both the Williams rule witness and the instant victim became very 

impaired while drinking at the downtown bars.

• Both the prior sexual battery and the instant sexual battery 

occurred in locations where no one else was present – the prior 

sexual battery occurred in a dark deserted alley, and the instant 

sexual battery occurred in appellant’s living room after appellant’s 

wife had gone to bed.

• Appellant’s first physical contact with both the Williams rule witness 

and the instant victim was kissing them on the mouth.

• Both the Williams rule witness and the instant victim reminded 

appellant he was married and attempted to physically resist him (the 

Williams rule witness tried to push appellant away, and the instant 

victim “swatted” at appellant), but appellant continued his sexual 

battery.

• Appellant physically got on top of both the Williams rule witness and 

the instant victim.
15

• Appellant reached through the clothes of both the Williams rule 

witness and the instant victim to penetrate their vaginas with his 

fingers.

The state properly relied upon the foregoing similarities to prove 

appellant’s sexual battery of the instant victim was, beyond a reasonable 

doubt, not an innocent mistake of thinking he was having consensual 

sexual relations with his wife. The foregoing similarities further proved, 

beyond a reasonable doubt, appellant’s motive and intent of committing 

sexual battery upon his wife’s very impaired friends if an opportunity arose 

when he was alone with the women long enough to commit the sexual 

battery.

This conclusion is consistent with other cases in which our sister 

courts have admitted Williams rule evidence to prove a defendant’s modus 

operandi of taking advantage of a relationship to commit sexual battery. 

See Pitts v. State, 263 So. 3d 834, 837-39 (Fla. 1st DCA 2019) (evidence 

that defendant had years earlier penetrated a woman after she passed out 

following a night of drinking was admissible to prove the present sexual 

battery of another woman who was sleeping after a night of drinking); 

Bruce v. State, 44 So. 3d 1225, 1229 (Fla. 5th DCA 2010) (“The victim’s 

and [the Williams rule witness’s] testimony demonstrated a clear pattern 

of conduct. The women were the same age, Bruce knew both women from 

church, and he knew both were single and lived alone. Bruce first 

befriended the women by performing handyman services and 

commiserating with each about the hardship of caring for a loved one with 

disabilities. During the course of performing handyman services, he not 

only made sexual advances but fondled the breasts of each. The only 

difference was that he successfully completed the sexual battery against 

the victim, but was unable to [complete the sexual battery with the 

Williams rule witness who fought him off].”).

2. The similarities between appellant’s sexual battery

of the instant victim and the Williams rule witness

are not outweighed by the differences between the two crimes.

The majority cites five differences between appellant’s sexual battery of 

the instant victim and the Williams rule witness to justify its ultimate 

conclusions that the prior sexual battery was “only weakly probative of the 

charged crimes” and thus “the trial court abused its discretion in 

admitting the Williams rule witness’s testimony.” Maj. op. at 10. As 

discussed below, each of those five differences are either factually or legally 

mistaken or immaterial.
16

• “The victim was a close friend of the Reynas who regularly slept 

over at their home; the Williams rule witness was a casual 

acquaintance who socialized occasionally with the Reynas.”

In actuality, the Williams rule witness was more than a casual 

acquaintance. Although she had not slept over at the Reynas’ home, she 

had been to the Reynas’ home a few times and was a guest at the Reynas’ 

wedding. Thus, like the instant victim, the Williams rule witness’s 

relationship was close enough that she was invited to the Reynas’ home to 

begin a night of drinking, and then accompanied them to downtown bars 

for a night of dancing and more drinking. When she became very impaired, 

and no one else was present in the dark deserted alley, appellant took 

advantage of the opportunity to commit a sexual battery upon her, just as 

he did with the instant victim, another close friend, at the Reynas’ home. 

Thus, the Williams rule evidence corroborated appellant’s motive, intent, 

and absence of mistake in committing the sexual battery upon the instant 

victim.

• “The charged crimes occurred on a couch in a private living 

room; the collateral act occurred on a public bench in an alley.”

This difference is immaterial. Appellant’s motive and intent was to 

commit sexual battery upon his wife’s friends when the opportunity 

presented itself, that is, when his wife’s friends became very impaired and 

no one else was present, regardless of location. Thus, appellant took 

advantage of the dark deserted alley to commit a sexual battery upon the 

impaired Williams rule witness, and later took advantage of the impaired 

instant victim in his living room with while his wife slept in their bedroom.

• “The victim had a work relationship with appellant’s wife; the 

Williams rule witness had no such work relationship.”

This difference is immaterial. As stated above, the Williams rule 

witness’s relationship was close enough that she had been to the Reynas’

home a few times, socialized with them, and had been a guest at the 

Reynas’ wedding.

Also immaterial is the fact that the Williams rule witness was a detective 

in a sex crimes unit. The majority argues that fact carried an additional 

risk of undue prejudice in a section 90.403 analysis, as juries often afford 

great weight to the testimony of police officers. See, e.g., Salomon v. State, 

267 So. 3d 25, 32 (Fla. 4th DCA 2019) (explaining that police officers “bring 

with their testimony an air of authority and legitimacy,” and that a jury “is 
17

inclined to give great weight” to such testimony). However, detectives in 

sex crimes units can become sexual battery victims too, and should not 

be excluded as possible Williams rule witnesses on that basis. Here, the 

Williams rule witness’s only role was being another of appellant’s wife’s 

very impaired friends whom appellant sexually attacked when the 

opportunity presented itself, just as he did to the instant victim.

• “The charged crimes were three sexual batteries that occurred 

over an extended period of time, as the victim hovered between 

consciousness and sleep; the Williams rule witness was very 

much awake during the collateral act, a sudden groping of her 

genital area.”

This difference is immaterial. The only reason why “three sexual 

batteries ... occurred over an extended period of time” to the instant victim 

as she “hovered between consciousness and sleep,” is because she was so 

much more impaired than the Williams rule witness, who was able to fight 

back and get away. Cf. Bruce, 44 So. 3d at 1229 (the fact that the 

defendant successfully completed the sexual battery against the victim, 

but was only able to fondle the Williams rule witness’s breasts, was an 

insignificant difference, because the Williams rule witness was able to 

fight off the defendant before he could complete the sexual battery).

That is why the majority’s attempt to distinguish the striking 

similarities between the instant case and Pitts v. State, 263 So. 3d 834 

(Fla. 1st DCA 2019), is ill-conceived. As stated above, in Pitts, our sister 

court held that Williams rule evidence from years earlier was admissible 

where in both acts, the defendant was accused of digitally penetrating a 

female victim while she was sleeping or passed out following a night of 

drinking. Id. at 837-39. Like the Williams rule notice in the instant case, 

the Pitts notice had stated this collateral crime evidence would be 

introduced “pursuant to Florida Statute 90.404(2) for purposes of proving

a material fact in issue: specifically the requisite elements of intent 

(including absence of mistake or accident), modus operandi.” Id. at 837 

(internal brackets and quotation marks omitted).

Despite those striking similarities to the instant case, the majority 

attempts to distinguish Pitts as follows:

Here, the charged crimes were similar to that in Pitts, but the 

collateral evidence involved a different criminal act. There is 

no clear pattern of conduct between the charged crimes and 

the collateral act. Groping a woman on a bench in a public 

place is only minimally probative of the charged crime—
18

repeated sexual batteries against a passed-out woman on a 

couch in a residential living room.

Maj. op. at 9 (emphasis added). The majority’s reasoning is unfortunately

misguided. The only reason why the Williams rule witness was not also 

the victim of “repeated sexual batteries” is because she was less impaired 

than the instant victim, and thus more able to fight back and get away. 

Thus, the majority ultimately understates the facts by claiming appellant 

was merely “groping a woman on a bench in a public place.” In actuality, 

appellant was taking advantage of being with the impaired Williams rule 

witness in a dark deserted alley so he could attempt to rape her, just as 

he was later able to rape the more severely impaired instant victim in his 

living room when no one else was present.

• “There was a gap of over four years between the two incidents.”

I recognize the McLean court identified “the closeness in time of the 

prior acts to the act charged” as one of the factors which a trial court 

should evaluate when determining whether the probative value of previous 

offenses is substantially outweighed by the danger of unfair prejudice. 934 

So. 2d at 1262. However, I do not consider “a gap of over four years 

between the two incidents” to be material in this case, for three reasons.

First, as mentioned above, in Pitts, our sister court held that evidence 

that defendant had “years earlier” penetrated a woman after she passed 

out following a night of drinking was admissible to prove the present

sexual battery of another woman who was sleeping after a night of 

drinking. 263 So. 3d at 837.

Second, permitting the state to have presented Williams rule evidence 

from “years earlier” is consistent with section 90.610(1), Florida Statutes 

(2015), which permits a witness’s credibility to be impeached by prior 

convictions for felonies and crimes of dishonesty going back many years, 

if appropriate. See Peoples v. State, 576 So. 2d 783, 789 (Fla. 5th DCA 

1991) (noting that, although section 90.610(1)(a), “precludes evidence in a 

civil trial of a conviction so remote in time as to have no bearing on the 

present character of a witness,” section 90.610(1) does not otherwise

prohibit such evidence in a criminal trial). As our sister court stated in 

Nehring v. State, 225 So. 3d 916 (Fla. 1st DCA 2017):

The only test for the admissibility of a prior conviction is 

whether the conviction has any bearing on the witness’s 

credibility. The remoteness of the conviction will most 

certainly be a factor in determining whether it bears on the 
19

witness’s credibility, but there is no bright-line rule for when a 

conviction becomes too remote to bear on the witness’s 

credibility. The determination is within the trial court’s 

discretion, and a trial court abuses its discretion only when its 

decision is arbitrary or fanciful.

Id. at 918 (emphasis added; internal citation omitted). Given that a trial 

court’s section 90.404(2) determination has similar considerations to a 

section 90.610(1) determination, no reason exists here why “a gap of over 

four years between the two incidents” should be material in this case.

Third, and most importantly, the method by which appellant committed 

the sexual batteries against the Williams rule witness and the instant 

victim was partially based on factors beyond appellant’s control and 

partially based on opportunity, the combination of which may have 

required years to develop before appellant could offend again. Appellant’s 

modus operandi required four events to occur: (1) his wife would have to 

become friends with another woman, (2) that relationship would have to 

develop to the point when the woman would socialize often with the 

Reynas, (3) an occasion would have to occur when the woman would drink 

to the point of impairment, and (4) an opportunity would have to occur 

when the woman was with appellant in a location where no one else would 

be present for several minutes, if not more, so appellant could take 

advantage of the woman. Given that this combination of factors may have 

required years to occur, the fact that at least two incidents occurred just 

over four years apart should not be surprising. Cf. LaValley v. State, 30 

So. 3d 513, 515-16 (Fla. 5th DCA 2009) (trial court did not abuse its 

discretion by allowing Williams rule evidence of another familial 

molestation occurring eleven years earlier; “[A]lthough the molestations 

occurred years apart, that appears more to be a function of opportunity 

than anything else.”).

Conclusion

Based on the foregoing, I respectfully dissent from the majority’s 

holding that the trial court abused its discretion by admitting evidence of 

appellant having committed a sexual battery upon the Williams rule 

witness. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) 

(“Discretion ... is abused 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.”) (emphasis added).
20

I also note the trial court read the cautionary Williams rule instruction, 

that is, Florida Standard Jury Instruction (Criminal) 2.4, to the jury before 

the Williams rule witness’s testimony. Further, this evidence did not 

become a feature of the lengthy trial or overwhelm evidence of the charged 

crime. The Williams rule witness and her mother were the last two out of 

ten state witnesses to testify, and their testimony took up only ninety 

minutes out of three full days’ of witness testimony in the trial as a whole. 

During the state’s one hour closing argument, the state discussed the 

Williams rule evidence for only three to four minutes. See Stubbs v. State, 

275 So. 3d 631, 636 (Fla. 4th DCA 2019) (“On this record, the collateral 

act evidence did not become a feature of the trial or overwhelm the 

evidence of the charged crime.”).

Lastly, and without further discussion, I concur with the majority’s 

holding that the trial court did not abuse its discretion in allowing 

appellant’s prior convictions to be used for impeachment.

* * *

Not final until disposition of timely filed motion for rehearing.