Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA ____________________________ No. 1D20-0645 ____________________________ CURTIS EUGENE PENDERGRASS, Appellant, v. STATE OF FLORIDA, Appellee. ____________________________ On appeal from the Circuit Court for Duval County. Kevin Blazs, Judge. May 12, 2021 LONG, J. Appellant, Curtis Pendergrass, appeals his judgment and sentence for burglary. He argues the trial court erred when it allowed the State to introduce testimony that a law enforcement officer had contact with Mr. Pendergrass during a traffic stop before the burglary. We find that the trial court did not abuse its discretion by admitting this testimony and affirm Mr. Pendergrass’s conviction. The Facts The State charged Mr. Pendergrass with burglary. Video surveillance showed the perpetrator in a red Dodge Charger. Law enforcement later found a red Dodge Charger containing items stolen during the burglary. At trial, the State presented the testimony of Natalia Posada. Ms. Posada testified that she is a patrol officer with the Jacksonville Sheriff’s Office and that while on duty a few weeks before the charged crime, she conducted a traffic stop involving Mr. Pendergrass. She said that during the traffic stop Mr. Pendergrass was driving a red Dodge Charger. The red Dodge Charger found with the stolen items had the same license plate as the one driven by Mr. Pendergrass during the traffic stop. Ms. Posada also described Mr. Pendergrass’s appearance and recalled his home address given during the stop. To prevent the disclosure of an unrelated criminal charge, the trial court excluded any testimony from Ms. Posada that would explain the reason for, or outcome of, the traffic stop. Mr. Pendergrass claims that because the State presented DNA evidence linking him to the car, the State did not need Ms. Posada to testify about the traffic stop. He argues that if the State wanted to present Ms. Posada’s testimony, then it should have presented her as a civilian witness who observed Mr. Pendergrass driving without testifying that she stopped him while she was working as a law enforcement officer. Mr. Pendergrass asserts that “[w]hen a law enforcement officer identifies a defendant at trial based on past contact, the officer’s testimony creates a prejudicial inference that the defendant has been involved in prior criminal conduct.” The State responds that Ms. Posada’s testimony showed that Mr. Pendergrass had previously operated the vehicle, something DNA could not definitively prove. And that this was a critical piece of evidence because Mr. Pendergrass was not the registered owner of the car. The trial court admitted Ms. Posada’s testimony over objection, finding the probative value of the testimony was not substantially outweighed by any prejudice caused by her identification as a police officer. The Law We have jurisdiction. Art. V, § 4(b)(1), Fla. Const. “All relevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2018). “Relevant evidence is evidence tending 2 to prove or disprove a material fact.” § 90.401, Fla. Stat. (2018). Here, the State had to prove Mr. Pendergrass’s identity as the perpetrator of the burglary. To assist in proving identity, the State sought to connect him to the vehicle seen on video surveillance during the burglary—the vehicle that was later found containing items stolen during the burglary bearing the same license plate as the car Mr. Pendergrass had been driving. The test for admissibility is not simply, as Mr. Pendergrass suggests, whether the prior contact testimony could create an inference of prior criminal conduct. Because even if the traffic stop testimony did imply a prior bad act, it is not necessarily improper. The Florida Supreme Court has addressed the admissibility of similar fact evidence relating to prior bad acts: Our view of the proper rule simply is that relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy. The test of inadmissibility is a lack of relevancy. Williams v. State, 110 So. 2d 654, 659−60 (Fla. 1959). As codified in section 90.404(2), Florida Statutes (2018), 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.” Such evidence is only “inadmissible when the evidence is relevant solely to prove bad character or propensity.” Id. Here, the admission of Ms. Posada’s testimony was relevant to establish a material fact and was not “solely to prove bad character or propensity.” Id. The trial court limited the prior contact testimony to the portion relevant to this case. The trial court also reasonably determined that any prejudicial inference did not substantially outweigh the probative value of confirming his prior use of the car. A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. Holmes v. State, 91 So. 3d 859, 3 862 (Fla. 1st DCA 2012). The balancing of probative value and prejudice is generally “struck in favor of admissibility” as the exclusion of relevant evidence is “an extraordinary remedy which should be used only sparingly since it permits the trial court to exclude concededly probative evidence.” State v. Gerry, 855 So. 2d 157, 163 (Fla. 5th DCA 2003) (quoting United States v. Norton, 867 F.2d 1354, 1361 (11th Cir. 1989)). The testimony was relevant to a material fact at issue and the trial court was within its discretion to admit it. AFFIRMED. LEWIS, J. concurs; MAKAR, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ MAKAR, J., concurring. Two trial judges carefully reviewed the request to preclude Officer Posada’s testimony about her identification of Curtis Eugene Pendergrass in the red Dodge Charger later used in a burglary. At a pre-trial conference, the first judge heard argument and later made a reasonable decision to deny the admission of the officer’s testimony except to the extent the officer observed Pendergrass in the vehicle on a particular date so “long as there is no reference to a violation of law.” At trial, the second judge accepted that decision, but clarified that the officer could say the observation was during a traffic stop to provide context, but “anything further from that will create a problem.” During trial, the questioning of the officer was predominantly within the parameters of the judicial orders; it wandered a bit beyond what was necessary to provide “context,” but it can’t be said to have created reversible error under the abuse of discretion standard. For that reason, I join Judge Long’s opinion. 4 ____________________________ Jessica J. Yeary, Public Defender, and Ross Scott Haine, II, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Daren Shippy, Assistant Attorney General, Tallahassee, for Appellee. 5