Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-3747 _____________________________ WARREN MYGEL HETHERINGTON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. J. Scott Duncan, Judge. April 15, 2020 BILBREY, J. Appellant challenges his conviction and resulting life sentence for first degree, premeditated murder claiming that the trial court erred by allowing the admission of collateral crime evidence also known as prior bad act evidence. ∗ See § 90.404(2), Fla. Stat. (2018). We disagree and affirm. The State noticed its intent to introduce at trial evidence that a few months before the victim was killed by a gunshot to the head, ∗ This type of evidence is also frequently called Williams rule evidence. Williams v. State, 110 So. 2d 654 (Fla. 1959). the victim’s minor child had observed Appellant pointing a handgun at the victim’s head in a threatening manner. See § 90.404(2)(d)1., Fla. Stat. (2018). At trial, the State proffered the child’s testimony and was then permitted to present the testimony to the jury. Appellant contends this was error because there was not clear and convincing evidence that the collateral crime occurred and because the probative value of the evidence was outweighed by unfair prejudice. See Whisby v. State, 262 So. 3d 228, 231 (Fla. 1st DCA 2018). We review the admission of collateral crime evidence under an abuse of discretion standard. See LaMarca v. State, 785 So. 2d 1209 (Fla. 2001). The trial court serves as a gatekeeper for the admission for the collateral crime evidence and must determine, among other factors, whether “the prior acts were proved by clear and convincing evidence.” Kopsho v. State, 84 So. 3d 204, 212 (Fla. 2012) (citing McLean v. State, 934 So. 2d 1248, 1262 (Fla. 2006)). Here, Appellant contends that inconsistencies in the child’s testimony, including the description of the firearm and the date of the incident, mean that the clear and convincing evidence standard was not met. We reject this argument and hold that competent substantial evidence supported the trial court’s finding, using the clear and convincing evidence standard, that the collateral crime occurred. The trial court had evidence that the child was consistent in his description of the firearm as being some sort of handgun. The child descriptions of the firearm as “like a pistol” and “[l]ike a submachine gun, but he held it in one hand,” was properly considered by the trial court in applying the clear and convincing evidence standard. Likewise, the child not being certain of the date of the collateral crime was understandable given the victim was murdered in February 2013 when the child witness was seven years old, but the trial testimony did not occur until August 2018. The child witness was clear that the collateral crime occurred, which was the key issue, not the date upon which the collateral crime occurred. The trial court was able to find that any inconsistency regarding the date did not mean that the child was unclear or confused about the collateral crime occurring. See Edwards v. State, 257 So. 3d 586 (Fla. 1st DCA 2018) (defining clear and convincing evidence). In sum, we reject the claim that 2 the clear and convincing standard could not have been met by the evidence considered by trial court. As for Appellant’s contention that the probative value of the collateral crime is outweighed by the undue prejudice and therefore should have been excluded under section 90.403, Florida Statutes (2018), we disagree. Appellant was charged with premeditated murder in violation of section 782.04(1)(a)1., Florida Statutes (2017). In Florida law, “[p]remeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill.” Perry v. State, 801 So. 2d 78, 84 (Fla. 2001) (quoting Green v. State, 715 So. 2d 940, 943 (Fla. 1998)). “Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Green, 715 So. 2d at 944 (quoting Holton v. State, 573 So. 2d 284, 289 (Fla. 1990)). The child’s testimony was certainly probative as to intent and premeditation. See Dennis v. State, 817 So. 2d 741 (Fla. 2002) (explaining defendant’s prior abusive relationship with the murder victim was relevant to establish motive); Burgal v. State, 740 So. 2d 82 (Fla. 3d DCA 1999) (holding prior incidents of domestic violence by the defendant against the victim were properly admitted to prove motive, intent, and premeditation in prosecution for attempted first-degree murder); State v. Wright, 74 So. 3d 503, 506 (Fla. 2d DCA 2011) (holding defendant’s prior acts of domestic violence and threats to victim of armed kidnapping relevant to the issues of motive and intent even if the prior acts did not bear a “striking similarity” to the charged offense). The only remaining issue then is whether the testimony was unduly prejudicial. When determining whether the danger of unfair prejudice outweighs the probative value of the evidence, the trial court must consider “the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g. an emotional basis; the chain of inference necessary to establish the material fact; and the effectiveness of a limiting instruction.” State v. McClain, 525 So. 2d 420, 422 (Fla. 1988) (quoting 1 C. Ehrhardt, Florida Evidence § 403.1 at 100–03 (2d ed. 3 1984)). There was need for this evidence because there was no forensic evidence linking Appellant to the shooting. While Appellant’s associate testified he saw Appellant discharge a handgun that night in in the driveway where the victim was in fact shot, his credibility was hardly sterling. The associate had previously denied witnessing such conduct and also had multiple felony convictions. There was no other testimony directing linking Appellant to the shooting. Additionally, as discussed above, the testimony of the child witness was necessary to show premeditation, as opposed to an accident or act in the heat of passion. Thus, the collateral crime evidence was not cumulative of other evidence offered by the State. Further, a limiting instruction was given to the jury. Finally, the prior bad act of Appellant putting a handgun to the victim’s head was not a feature of the trial. This goes to the issue of whether an improper basis was used for the jury to decide Appellant’ guilt. See Ballard v. State, 899 So. 2d 1186, 1187 (Fla. 1st DCA 2005) (reversing where collateral crimes evidence was made a feature of the trial “by presenting testimony regarding the evidence from four of its six witnesses; by publishing photographs of injuries allegedly sustained as a result of the alleged prior abuse; and by emphasizing the evidence in both its opening statement and its closing arguments”). Finding no error, the conviction and sentence are AFFIRMED. ROBERTS and WINOKUR, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee. 4