Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, ) ) Petitioner, ) ) v. ) Case No. 2D19-2092 ) RAYMOND ERIC HALL, ) ) Respondent. ) ) Opinion filed March 20, 2020. Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Kimberly K. Fernandez, Judge. Ashley Moody, Attorney General, Tallahassee, and Chelsea N. Simms, Assistant Attorney General, Tampa, for Petitioner. Julianne M. Holt, Public Defender, Tampa, for Respondent. SALARIO, Judge. In this prosecution of Raymond Eric Hall arising from the alleged molestation of a child, the State petitions for a writ of certiorari from a pretrial order excluding Williams1 rule evidence of Mr. Hall's molestation of a different child. The State argues that the trial court departed from the essential requirements of law by requiring it to prove a strict similarity between the facts of the charged offense and the Williams rule conduct. Because the similarity standard applied by the trial court has been abrogated by statute and is no longer the correct law, and because the exclusion of this evidence results in a material injury from which the State cannot obtain relief through an appeal, we grant the State's petition. Mr. Hall is charged with a single count of lewd or lascivious molestation of a six-year-old victim, E.T. The molestation allegedly occurred in the employee breakroom of the store where E.T.'s mother works. According to E.T., Mr. Hall sat down next to her, told her that he was going to play with her "wiggly legs," and reached his fingers under her skirt and underwear. No one else was in the room. It is likely, therefore, that the trial of the case will in substantial measure depend on whether the jury believes E.T. To corroborate E.T.'s testimony, the State sought, by way of pretrial notice, to introduce evidence that Mr. Hall had previously molested another young girl, N.C., three years before the alleged incident with E.T. This type of evidence—evidence of the defendant's commission of a collateral crime or bad act—is known as Williams rule evidence, and its admissibility is regulated by section 90.404(2), Florida Statutes (2019). Williams rule evidence can play a key role in child molestation cases, where the victim is very often the only witness. See McLean v. State, 934 So. 2d 1248, 1255-56 (Fla. 2006). 1Williams v. State, 110 So. 2d 654 (Fla. 1959). -2- As required by section 90.404(2)(d), the State filed written notices of its intent to rely upon evidence of the molestation of N.C. in its prosecution of Mr. Hall for the alleged molestation of E.T. Mr. Hall responded with a motion in limine to exclude that evidence and a motion to strike the State's Williams rule notice. The trial court then conducted an evidentiary hearing to determine whether to allow the State's proposed Williams rule evidence to be admitted at Mr. Hall's trial. At the hearing, N.C. testified that when she was seven or eight years old, she had been at a pool party where Mr. Hall was also present. Mr. Hall told her to come to the side of the house to catch frogs. Once out of sight from the others, Mr. Hall asked N.C. about her "tickle spot" and then slid his hand under her bathing suit bottoms. After the hearing, the trial court entered a written order that denied the State's Williams rule notice, granted Mr. Hall's motions in limine and to strike, and stated that evidence of the molestation of N.C. would not be admitted at trial. Relying on the supreme court's decision in McLean, the trial court stated that it was required to determine first whether the State proved Mr. Hall's molestation of N.C. by clear and convincing evidence and second whether the probative value of that evidence was outweighed by the danger of unfair prejudice. See McLean, 934 So. 2d at 1256-59. The trial court found that the State proved by clear and convincing evidence that Mr. Hall molested N.C. but that the molestation of N.C. was too dissimilar from the molestation of E.T. to be admissible. Again relying on McLean, the trial court reasoned that the molestations of E.T. and N.C. both "occurred in a nonfamilial context"—i.e., Mr. Hall was not a family member of either victim—and thus that evidence of the two molestations must satisfy "a stricter similarity standard" than would apply had Mr. Hall -3- been a family member of the victims. The trial court concluded that the evidence failed to satisfy that stricter standard because "[o]ther than the facts that N.C. and E.T. are both adolescent females and [Mr. Hall's] sexual conduct involved hand to skin contact, the charged acts bear little resemblance." The State timely filed a petition for writ of certiorari in this court. To prevail, the State must demonstrate that the trial court's order "departs from the essential requirements of law, causing material injury . . . throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal." Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995) (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987)); see also Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012). The elements of material injury and the absence of an adequate appellate remedy, often collectively referred to as "irreparable harm," are jurisdictional and must be considered first. Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So. 3d 344, 351 (Fla. 2012). In the context of a pretrial order in a criminal prosecution, the State suffers a material injury when the order significantly impairs the State's ability to present its case at trial. State v. Pettis, 520 So. 2d 250, 253 (Fla. 1988). And because the State has no right to appeal from a final judgment of acquittal in a criminal case, the appellate remedy is inadequate if the order from which relief is sought is not an appealable nonfinal order under Florida Rule of Appellate Procedure 9.140(c)(1). Pettis, 520 So. 2d at 253; see also State v. Richman, 861 So. 2d 1195, 1198 (Fla. 2d DCA 2003) (concluding that a pretrial order excluding collateral crimes evidence is nonappealable and irreparably harms the State's presentation of its case). Here, given the importance of E.T.'s testimony to the -4- prosecution, the exclusion of Williams rule evidence to corroborate her testimony materially injures the State's case and is not appealable under rule 9.140(c)(1). See, e.g., State v. Lincoln, 279 So. 3d 854, 860 (Fla. 2d DCA 2019) (holding that the erroneous exclusion of Williams rule evidence in a child molestation case "would result in the State suffering irreparable injury by depriving it of crucial evidence that would have corroborated the victim's testimony in a case resting on the victim's credibility"). Turning to the merits, the State contends that the trial court departed from the essential requirements of law by applying the wrong legal standard to determine the admissibility of its Williams rule evidence. See THI Holdings, LLC v. Shattuck, 93 So. 3d 419, 424 (Fla. 2d DCA 2012) (finding a departure where the trial court's error "constituted an application of the incorrect law"). Where, as here, the State seeks to use evidence of other crimes to prove that the defendant committed the crime for which he is being tried, it creates a risk that the jury will convict based on its view of the defendant's character or criminal propensity instead of the evidence of the crime. See Newby v. State, 272 So. 3d 862, 869 (Fla. 2d DCA 2019) (citing McLean, 934 So. 2d at 1255). To mitigate that risk, the Williams rule generally requires the State to prove that the crime for which the defendant was on trial was substantially similar to the other crime in the sense that that the two offenses "share some unique characteristic or combination of characteristics which sets them apart from other offenses." Robertson v. State, 829 So. 2d 901, 909 (Fla. 2002) (quoting Heuring v. State, 513 So. 2d 122, 124 (Fla. 1987)). Notwithstanding this general requirement of strict or substantial similarity, the supreme court, in view of atypical considerations applicable in child molestation prosecutions, developed a more forgiving "relaxed similarity" requirement applicable -5- when the State introduces evidence of other acts of molestation to corroborate a victim's testimony where child molestation is alleged to have occurred in the familial context. See McLean, 934 So. 2d at 1257 (discussing Heuring, 513 So. 2d at 124-25). But that order of things changed in 2001, when section 90.404(2)(b) was amended. As amended, the statute provides that in child molestation cases, "evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant." The supreme court construed the amended statute in McLean and explained that it "broadly provides that evidence of the defendant's commission of other acts of child molestation is admissible regardless of whether the charged and collateral offenses occurred in the familial context or whether they share any similarity." 934 So. 2d at 1259 (emphasis added). The supreme court went on to hold that the amended statute abrogated the case law applying the strict and relaxed similarity standards applicable to Williams rule evidence in child molestation cases. Id. As the court stated, the lynchpin to the admissibility of Williams rule evidence in child sexual molestation cases after the amendment—whether within or outside the familial context—is its relevance, not its strict, substantial, or relaxed similarity to the crime being tried. See id.; see also Corson v. State, 9 So. 3d 765, 766 (Fla. 2d DCA 2009) ("[R]elevancy is the threshold question of whether testimony proffered under section 90.404(2)(b)(1) is admissible."). This is not to say that similarity is irrelevant after the amendment. The supreme court in McLean explained that similarity is something to be considered in determining both whether Williams rule evidence is relevant in a child molestation case and whether its probative value is outweighed by its prejudicial effect. McLean, 934 So. -6- 2d at 1259. On the latter question, the court identified several factors trial courts should consider: the similarity of the offenses, their proximity in time, their frequency, the presence or absence of intervening circumstances, and any other factors specific to the case. McLean, 934 So. 2d 1262. The pertinent point here, however, is that although similarity remains relevant, the admissibility of Williams rule evidence in child molestation cases does "not primarily turn on an analysis of the similarity of the offenses." Stewart v. State, 147 So. 3d 119, 123-24 (Fla. 1st DCA 2014); see also Easterly v. State, 22 So. 3d 807, 815 (Fla. 1st DCA 2009) (explaining that in a Williams rule analysis, "similarity is only a way of showing relevance"). Our court recently emphasized this point in Lincoln. There, the State sought to corroborate the testimony of a child molestation victim with Williams rule evidence. Lincoln, 279 So. 3d at 856. Relying on the supreme court's decision in McLean, the trial court held (1) that it had to apply a relaxed similarity standard because the molestation had occurred in the familial context and (2) that even under the relaxed standard, the molestations were not sufficiently similar to permit admission of the collateral crime evidence at trial. Id. at 859. In accord with that reasoning, the trial court excluded the evidence. Id. The State petitioned this court for a writ of certiorari, which we granted. Id. at 856. We explained that after the enactment of section 90.404(2)(b), "there is no longer a substantial similarity requirement in nonfamilial child molestation cases or a relaxed standard of admissibility in familial cases of child molestation." Id. at 858. We then concluded that by relying on the relaxed similarity standard in a familial molestation case, the trial court improperly relied on case law that was no longer valid. Id. at 860. -7- By applying "the very standard that was abrogated by section 90.404(2)(b)," we concluded, the trial court departed from the essential requirements of law. Id. The same is true in this case. Although the trial court discussed McLean and even mentioned the factors it identified for balancing probative value and prejudice, it did not apply the relevancy standard or those factors to the facts of the case. Instead, it relied on McLean to hold that a stricter similarity test applies when the State seeks to introduce Williams rule evidence in a case involving nonfamilial molestation than in a case involving familial molestation. It then decided that the State's showing of similarity failed to pass muster under that test. As the foregoing shows, however, the similarity test has been abrogated in child molestation cases, and there is no heightened similarity requirement where the molestations occur outside of the familial context. See McLean, 934 So. 2d at 1259; Lincoln, 279 So. 3d at 860. The trial court thus misinterpreted McLean and, as a result, applied an abrogated, incorrect legal standard—thereby departing from the essential requirements of law. See also State v. Sandoval, 125 So. 3d 213, 216-17 (Fla. 4th DCA 2013) (concluding that a trial court departed from the essential requirements of law by merely citing to McLean but not applying its analysis under section 90.404(2)(b)). Accordingly, we grant the State's petition and quash the trial court's order. We express no opinion on whether the State's Williams rule evidence will be admissible under the correct legal standard. Petition granted; order quashed. CASANUEVA and MORRIS, JJ., Concur. -8-