DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOSEPH D. BALDINO,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D14-4668

[July 19, 2017]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; Dan L. Vaughn, Judge; L.T. Case No. 562011CF001300A.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. 

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

WARNER, J.

Appellant, Joseph Baldino, appeals his convictions for one count of 

solicitation of a parent for unlawful sexual contact with a minor, five 

counts of transmission of child pornography, and ninety-nine counts of 

possession of child pornography. He raises two issues: first, that the court 

erred in denying his motion to suppress the computers seized as a result 

of a search warrant because the affidavit in support of the warrant 

contained material misstatements and omissions constituting intentional 

or reckless conduct by the police, which defeated probable cause; and 

second, that the court erred in admitting an additional 124 uncharged 

pictures of child pornography from a computer which were not inextricably 

intertwined with the charged crimes. As to the first issue, we affirm, as 

the court appropriately applied the analysis of Franks v. Delaware, 438 

U.S. 154, 171 (1978), and Johnson v. State, 660 So. 2d 648, 656 (Fla. 

1995). As to the second issue, the uncharged images were not inextricably 

intertwined, and the court erred in overruling appellant’s objection to their 

admission. As we cannot find that their admission was harmless beyond 

a reasonable doubt, we reverse and remand for a new trial on the 

possession of child pornography counts.
2

The charges against appellant arose after a St. Lucie County detective 

was contacted by a detective in Missouri who had received pornographic 

photographs of children from a “joeybaldino” while doing undercover 

computer investigations. The Missouri detective subpoenaed Yahoo for 

the name and address associated with the username. Yahoo responded 

with an address in Port St. Lucie, Florida. The St. Lucie detective was also 

contacted by an Illinois detective who had received unsolicited online 

requests from a username of “joeybaldino” and started receiving child 

pornography over the computer. Posing as “Pam,” the mother of a twelve

year old daughter, the detective engaged in multiple chat room 

conversations with “joeybaldino,” some of which involved setting up a 

sexual encounter with the child. A third detective from New York also 

contacted the St. Lucie detective. He informed him of child pornography 

that a resident in New York had received from a “joeybaldino” while in a 

chat room. The New York detective had subpoenaed the Yahoo records 

and received the same information as did the Missouri detective. Based 

upon this information, the St. Lucie detective applied for a search warrant.

The warrant for a search of all computers at the address received from 

the Yahoo records, which was the family home of appellant, was executed 

by detectives. Living at that address were appellant, his parents, his 

brother, and his sister. Four computers were found, and two were 

removed for further analysis. Regarding one computer, which had stickers 

on it and was password protected, appellant, who was home at the time, 

admitted that it was his computer and he was the only one to use it. A 

forensic search of the computer revealed pornographic images of children. 

Based upon the chat room contact with the Illinois detective and the 

images found on the computer, appellant was charged with computer 

solicitation of a parent for unlawful sexual contact with a minor, 

transmission of child pornography, and possession of child pornography.

Appellant moved to suppress the search warrant of the computer, 

claiming that the affidavit contained material misrepresentations and 

omissions, and the detective either acted recklessly or intentionally in 

submitting the affidavit. He claimed that material information was omitted 

from the affidavit regarding appellant’s addresses at the time that various 

transmissions of child pornography were made; various omissions of 

additional information identifying “joeybaldino” that was different than 

that contained in the affidavit; and the existence of other “joeybaldinos” in 

the area. The court heard extensive argument from computer experts 

regarding IP addresses and the information that the detective did not 

include in the affidavit. 
3

The court then entered a detailed order denying suppression. It 

concluded that any information that the detective had failed to include was 

unintentionally excluded. In response to appellant’s argument that the 

detective did not have personal knowledge of all that was contained in the 

affidavit, the court found that the detective could rely on information from 

fellow officers. State v. Bowers, 87 So. 3d 704, 709 (Fla. 2012). After 

reviewing the details of each of the investigations, the court acknowledged 

that only the Missouri investigation provided sufficient information upon 

which to base probable cause, but applying Franks, the affidavit was 

sufficient to secure a search warrant. 

At trial, the Illinois detective testified he was assigned to the child 

exploitation unit, which investigates internet crimes against children. 

While in a Yahoo chat room in which there were a lot of sexually-based 

conversations regarding children, the detective, posing as “Pam,” received 

a private message from an individual with the screen name “joeybaldino.” 

While engaging in a conversation of a sexual nature about the fictional 

daughter of “Pam”, the detective received thirty images of child 

pornography from “joeybaldino.” During the next several days, the 

detective sent three messages to “joeybaldino” to see whether there was 

still interest in the child, as the detective (“Pam”) was coming to Florida. 

In one of the chats, “joeybaldino” admitted sending images of child 

pornography to Pam.

Several days later, they had another computer chat, and “joeybaldino”

again discussed arranging a sexual encounter with Pam and her daughter. 

Five days later, Pam sent “joeybaldino” a picture of “herself,” and 

“joeybaldino” responded with a webcam picture of himself to the detective. 

The detective identified the webcam image as being a photo of appellant. 

The webcam picture was introduced as an exhibit. Around ten days later 

Pam and “joeybaldino” chatted again, during which child pornography was 

transmitted, as well as in another chat a few days later.

Summarizing, during four different chats, “joeybaldino” sent child 

pornography to Pam and tried to set up a sexual encounter with Pam and 

her daughter. Transcripts of all the chats and messages were admitted as 

exhibits, as were the images and videos of the child pornography.

When the search warrant was served, the detectives seized two 

computers. As part of the search, detectives interviewed appellant. He 

admitted that the password-protected computer, upon which a forensic 

analysis showed substantial child pornography, was his.
4

The detective who performed the forensic examination of the computers 

testified regarding the child pornographic images found on the computer 

appellant identified as his, the possession of which was charged in the 

information. The detective identified the images and testified that these 

images were accessed either during the time of, or shortly after, the chat 

room conversations with Pam. Two images of the appellant were found on 

the computer. One, taken by webcam and located under “my document” 

and “my pictures,” was created on April 10, 2011, and last accessed on 

April 21, 2011. 

In addition, the State sought to introduce 125 uncharged pornographic 

pictures found on appellant’s computer. One was accessed close in time 

to the chat session with Pam on March 26, 2011, four hours after two 

images of appellant’s face had been created, but the other 124 photos were 

accessed on a date unconnected with the various chats which formed the 

basis of the charges. The defense objected, but the trial court admitted 

the pictures as “inextricably intertwined” with the charged offenses.

The defense called appellant’s sister, who testified that the entire family 

had access to the computer, although she admitted that she had told the 

detectives executing the search warrant that it belonged to appellant. 

Appellant also called a computer expert who testified that there were 

multiple “joeybaldino” logins with multiple IP addresses from multiple 

locations all over the world. Some of those occurred while appellant was 

incarcerated. He also examined two other computers from the home and 

found one image of child pornography on one, and LimeWire, a peer-topeer software often used to download pornography, on another.

The jury convicted appellant on one count of soliciting a parent for 

unlawful sexual conduct, five counts of transmission of child pornography 

and ninety-nine counts of possession of child pornography, all as charged. 

He was sentenced to consecutive five year terms of prison on each count. 

Appellant now appeals.

Search Warrant

Appellant challenges the trial court’s order denying the motion to 

suppress the computer evidence found from the execution of the search 

warrant, because the warrant was based upon a materially misleading 

affidavit. The trial court, however, followed Franks v. Delaware, 438 U.S. 

154, 171 (1978), and determined that the affidavit did support probable 

cause for the warrant. We agree.
5

A trial court’s ruling on a motion to suppress comes to the appellate 

court clothed with a presumption of correctness and the appellate court 

must interpret the evidence and reasonable inferences and deductions 

derived therefrom in a manner most favorable to sustaining the trial 

court’s ruling. The appellate court defers to the trial court’s findings 

regarding the facts in connection with a suppression motion and uses the 

de novo standard of review for legal conclusions. Luna v. State, 154 So. 

3d 1181, 1183 (Fla. 4th DCA 2015).

In Franks, the Court developed a test to determine whether 

misstatements in affidavits for search warrants would require suppression 

of the fruits of those searches. Where a defendant challenges an affidavit 

as containing a material misstatement, the defendant must make a 

preliminary showing: (1) that the affiant knowingly or intentionally or with 

reckless disregard for the truth included a false statement in the affidavit 

used to obtain a search warrant; and (2) that statement was necessary to 

the finding of probable cause. Franks, 438 U.S. at 171-72. If the 

defendant establishes these allegations by a preponderance of the 

evidence, then the court must suppress the fruits of the search. Id. 

In Johnson v. State, 660 So. 2d 648 (Fla. 1995), the court extended the 

Franks requirements to omissions in affidavits, adding these additional 

requirements for the court to assess: (1) “whether the omitted material, if 

added to the affidavit, would have defeated probable cause,” and (2) 

whether “the omission resulted from intentional or reckless police conduct 

that amounts to deception.” Id. at 656. Without all of these findings, 

suppression of evidence seized by a search warrant, supported by the 

affidavit, should be denied. Id.; see also Pagan v. State, 830 So. 2d 792, 

807 (Fla. 2002); Murray v. State, 155 So. 3d 1210, 1217 (Fla. 4th DCA 

2015).

In reviewing the affidavit and the extensive testimony at the hearing on 

the motion to suppress, the trial court found no intentional or reckless 

conduct on the part the detective who prepared and submitted the 

affidavit. Having reviewed the evidence, the court’s conclusion was 

supported by competent substantial evidence. There were omissions and 

some misstatements, but the trial court not only explained why they were 

not intentional or deceptive, it also, in accordance with Johnson,

determined that the omissions, if added to the affidavit, would not have 

defeated probable cause. While it found that the evidence of the New York 

and Illinois investigations would not have supported probable cause, the 

information from the Missouri investigation, in and of itself, was sufficient 

to support probable cause. We give deference to the trial court’s findings 
6

of fact and agree with its legal conclusions. The motion to suppress was 

properly denied.

Introduction of Uncharged Crimes

In his second issue, appellant argues that the trial court erred in 

overruling his objection to admission of the additional 124 uncharged 

images of child pornography found on the computer. The standard of 

review for a trial court’s admission of evidence is abuse of discretion, but 

a trial court’s discretion is limited by the rules of evidence. Gaines v. State, 

155 So. 3d 1264, 1271 (Fla. 4th DCA 2015).

The trial court found that the images were inextricably intertwined with 

the charged crimes.1 Appellant contends that they were not intertwined 

and showed only propensity to commit crimes. Unlike the images of child 

pornography charged by the State, each of which was accessed close to 

the time of a chat room conversation with Pam, these additional images 

were not tied to any of the charged crimes. The State argues that the 

images were intertwined, because on the date they were accessed, 

appellant had created two images of himself on the same computer. 

“Evidence of uncharged crimes which are inseparable from the crime 

charged, or evidence which is inextricably intertwined with the crime 

charged, is admissible under section 90.402, Florida Statutes, because ‘it 

is a relevant and inseparable part of the act which is in issue.’” Osborne 

v. State, 743 So. 2d 602, 602 (Fla. 4th DCA 1999) (quoting Coolen v. State, 

696 So. 2d 738 (Fla. 1997)). “Evidence is ‘inextricably intertwined’ if it is 

necessary to (1) adequately describe the deed; (2) provide an intelligent 

account of the crime(s) charged; (3) establish the entire context out of 

which the charged crime(s) arose; or (4) adequately describe the events 

leading up to the charged crime(s).” Ward v. State, 59 So. 3d 1220, 1222

(Fla. 4th DCA 2011).

In this case, the uncharged images of child pornography do not satisfy 

any of the reasons for admitting inextricably intertwined evidence. They 

did not assist in “adequately describing the deed” of soliciting a parent for 

unlawful sexual conduct with a minor, transmission of child pornography,

or possession of the charged images of child pornography. Id. Nor do the 

images provide an intelligent account of the other crimes or establish the 

entire context out of which the crimes arose. They do not describe events 

 

1 It specifically noted that it was not admitting the images as Williams rule 

evidence, because the State did not make that argument to the court. See 

Williams v. State, 110 So. 2d 654 (Fla. 1959).
7

leading up to the charged crimes, because the images were accessed after 

all of the charged crimes occurred. Because the collateral crimes do not 

fit within any of the reasons to admit such evidence, the court abused its 

discretion in finding that the uncharged crimes were inextricably 

intertwined.

In its brief, the State contends that inextricably intertwined evidence 

can be used to prove identity, citing to Smith v. State, 866 So. 2d 51 (Fla. 

2004). In Smith, a murder case, a witness testified that immediately after 

the shooting the victim, the defendant said that the victim was the “13th 

or 14th [person] that . . . he had shot.” Id. at 57. The supreme court held 

that the evidence was relevant to identity, because Smith’s defense was 

that someone else had shot the victim. Id. at 60. The court then stated 

that in addition the statement was inextricably intertwined with the crime, 

having been made immediately after the murder. Id. at 62. The court 

adopted Professor Charles W. Ehrhardt’s explanation of inextricably 

intertwined evidence that “this evidence is admitted for the same reason 

as other evidence which is a part of the so-called ‘res gestae’; it is necessary 

to admit the evidence to adequately describe the deed.” Id. at 63 (quoting 

C. Ehrhardt, Florida Evidence § 404.16 (1984 Edition)). Professor 

Ehrhardt distinguished it from Williams rule evidence, stating “it seems 

that both the language of Section 90.404(2)(a) and of Williams indicates 

that the rule applies to evidence of discrete acts other than the actions of 

the defendant committing the instant crime charged.” Smith, 866 So. 2d 

at 63. In this case, the admission of uncharged child pornography images 

are evidence of discrete acts, not actions of the defendant in committing 

the charged crime. Thus, Smith supports a conclusion that this evidence 

was not inextricably intertwined evidence.

We thus conclude that court abused its discretion in admitting the 124 

uncharged images of child pornography. The question becomes whether 

the admission of these images is harmless beyond a reasonable doubt. See 

State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

The harmless error test, as set forth in Chapman and progeny, 

places the burden on the state, as the beneficiary of the error, 

to prove beyond a reasonable doubt that the error complained 

of did not contribute to the verdict or, alternatively stated, that 

there is no reasonable possibility that the error contributed to 

the conviction. See Chapman, 386 U.S. at 24, 87 S.Ct. at 828. 

Application of the test requires an examination of the entire 

record by the appellate court including a close examination 

of the permissible evidence on which the jury could have 

legitimately relied, and in addition an even closer examination 
8

of the impermissible evidence which might have possibly 

influenced the jury verdict.

Id. at 1135. As noted in Ward, the State’s burden is higher because of the 

nature of collateral crime evidence:

Here, the state starts out with an even more arduous burden 

because “[t]he erroneous admission of collateral crimes 

evidence is presumptively harmful.” McCall v. State, 941 So.

2d 1280, 1283 (Fla. 4th DCA 2006) (citations and quotation 

marks omitted). This is because “[e]vidence that suggests a 

defendant has committed other crimes or bad acts can have a 

powerful effect on the results at trial.” 

Ward, 59 So. 3d at 1224.

In evaluating the evidence, there was clearly overwhelming evidence of 

the commission of each of the crimes charged. Yet, the presence of 

overwhelming evidence alone does not satisfy the DiGuilio test. And in this 

case, there are three separate crimes to which the harmless error test must 

be applied.

As to the charge of solicitation of the parent for sexual conduct with a 

minor, the chat room conversations and the actual webcam image of the 

appellant, which he sent during one of the conversations, constitute 

powerful evidence. Appellant’s identification of himself through the 

webcam picture tied him to the chats in which the solicitation took place. 

The fact that nearly a month later images of child pornography may have 

been accessed on a computer on which he also created images of himself 

is completely irrelevant to the crime of solicitation. Similarly, with respect 

to the transmission of the pornographic images, not only were they 

transmitted during the chat room conversations, but appellant admitted 

in one conversation that he had transmitted them to Pam. Again, we fail 

to see how the possession of additional uncharged images of child 

pornography in any way could have possibly influenced the verdict on this 

issue.

As to the counts of possession of child pornography, however, we come 

to a different conclusion. In his defense, appellant attempted to show that 

the computer on which the images were found was a family computer 

which could be accessed by anyone in the house. The introduction of an 

additional 124 images from that computer together with two images of him 

may have influenced the jury to conclude that the 100 images charged in 

the information were also possessed by the appellant. At least we cannot 
9

say that the State has shown beyond a reasonable doubt that they would 

not have influenced the jury in the rendering its verdict on the possession 

counts.

For the foregoing reasons, we affirm appellant’s convictions and 

sentences for soliciting a child for unlawful sexual conduct using computer 

services or devices and transmission of child pornography. We reverse 

appellant’s convictions for possession of child pornography and remand 

for a new trial.

TAYLOR and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.