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 JOSE BAEZ-ORTIZ, ) ) Appellant, ) ) v. ) Case No. 2D19-379 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed July 8, 2020. Appeal from the Circuit Court for Polk County; William Sites, Judge. Howard L. Dimmig, II, Public Defender, and Brett S. Chase, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Michael Schaub, Assistant Attorney General, Tampa; and C. Todd Chapman and Johnny T. Salgado, Assistant Attorneys General, Tampa (substituted as counsel of record) for Appellee. MORRIS, Judge. Jose Baez-Ortiz appeals his judgment and sentence for lewd or lascivious conduct on a child by a person over eighteen. Because we conclude that the trial court erred by admitting evidence that Baez-Ortiz had previously been warned not to touch schoolchildren and had previously been reprimanded for hugging schoolchildren, we reverse. BACKGROUND The alleged crime took place when Baez-Ortiz, a school custodian, touched a kindergarten student at the school where he worked in April 2017. Baez- Ortiz was alleged to have rubbed the student's leg up towards her thigh and under her skirt. Prior to trial, Baez-Ortiz filed a motion in limine seeking to prohibit the State from introducing "[a]ny testimony that Baez-Ortiz had behaved inappropriately with children in the past [or] that he had been warned in the past not to touch children." He argued that such testimony was not relevant to the crime charged and that even if it was, the probative value of such testimony was outweighed by the prejudicial effect. The trial court denied the motion. At trial, defense counsel renewed his previous objections and the issues raised in the motion in limine. The trial court abided by its previous ruling. The State introduced the testimony of the school principal. The principal testified that two to three months before the charged crime, he became aware that Baez-Ortiz had been hugging some students and sitting down at the lunch table with some students. The principal thus had a conversation with Baez-Ortiz regarding his job responsibilities, and during that conversation, the principal instructed Baez-Ortiz not to hug or interact so much with the students. Subsequently, about two to three weeks before the April 2017 incident, the principal had the same concerns about Baez-Ortiz's behavior. As a result, the principal had a second conversation with Baez-Ortiz during -2- which he instructed Baez-Ortiz not to interact with the students at all and suggested that Baez-Ortiz refrain from going into the cafeteria when the students were coming and going. The principal clarified that his conversations with Baez-Ortiz were informal in nature and that the hugging and interacting were not inappropriate in the same manner as the charged conduct. The State then presented the testimony of the school cafeteria worker who witnessed the alleged April 2017 incident, the victim's mother who testified about the victim telling her the details of the incident, the victim herself who testified about Baez- Ortiz's conduct that led to the charge, and a detective who testified about what the victim relayed to him. Next, the State called a certified Spanish interpreter who was present during the interview between the detective and Baez-Ortiz. Both the transcribed and taped version of the interview were provided to the jury. During the taped interview, the detective asked Baez-Ortiz (1) whether he had been told not to hug schoolchildren anymore, (2) why he had continued to have contact with schoolchildren after being told twice not to, (3) why he had continued to touch schoolchildren after being told not to, and (4) the date of the last time Baez-Ortiz had gotten in trouble for touching schoolchildren. During that taped interview, Baez-Ortiz admitted to touching the student referenced in the information, but he denied doing so with malicious intent. The State then rested its case. Baez-Ortiz's motion for judgment of acquittal was denied. The defense presented the testimony of another detective who was present for the victim's interview, and she provided a slightly different version of what the victim reported. The defense then rested its case. -3- Ultimately, the jury convicted Baez-Ortiz, and he was sentenced to fifteen years in prison followed by fifteen years of sex offender probation. ANALYSIS We review the admission of evidence for abuse of discretion. See Corbett v. State, 113 So. 3d 965, 969 (Fla. 2d DCA 2013). All relevant evidence is admissible except as provided by law. § 90.402[, Fla. Stat. (2016)]. Relevant evidence is any evidence that tends to prove or disprove a material fact. § 90.401. However, "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403. Thus, section 90.403 mandates a weighing process. See State v. McClain, 525 So. 2d 420, 422 (Fla. 1988). When the unfair prejudice substantially outweighs the probative value of the evidence, the trial court should exclude the evidence. In that weighing process, the trial court may consider the need for the evidence, the tendency of the evidence to suggest to the jury an improper basis for resolving the matter, the chain of inference necessary to establish the material fact, and the effectiveness of a limiting instruction. Steverson v. State, 695 So. 2d 687, 689 (Fla. 1997) (citing McClain, 525 So. 2d at 422; 1 C. Ehrhardt, Florida Evidence § 403.1 at 100-13 (2d ed. 1984)). Denmark v. State, 927 So. 2d 1079, 1081-82 (Fla. 2d DCA 2006) (second alteration in original). The State maintains that the evidence relating to Baez-Ortiz's being previously warned and reprimanded about touching schoolchildren was relevant and material to Baez-Ortiz's intent, state of mind, and to rebut his theory of defense that the touching of the victim was innocent or accidental. The State also argues that the evidence was relevant to establish that the charged conduct was not an accident or mistake. -4- We are not persuaded by the State's argument. "Evidence of prior bad acts—Williams[1] rule evidence—consists of prior conduct that may be 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; it is inadmissible when relevant solely to prove bad character or propensity." Denmark, 927 So. 2d at 1081. However, the Williams rule is not applicable if the prior conduct is dissimilar to the charged crime and where there is a time lapse between the incidents. See id. (concluding that evidence that the State wanted to use was not Williams rule evidence because "[t]he challenged evidence was factually and temporally unrelated to the January 2001 offenses"); see also Sexton v. State, 697 So. 2d 833, 837 (Fla. 1997) (explaining that "if evidence of a defendant's collateral bad acts bears no logical resemblance to the crime for which the defendant is being tried," then the Williams rule is inapplicable and the general rule of relevancy set forth in section 90.402 controls). Here, the prior acts consisted of hugging and/or interacting with schoolchildren other than the victim; those acts occurred two to three months before the April 2017 incident with the victim. Even though the principal had the same concerns about Baez-Ortiz's conduct two to three weeks before the April 2017 incident, not only were those acts completely dissimilar from the charged crime (lewd or lascivious behavior arising from the act of rubbing a child's thigh under a skirt), but they were also temporally unrelated to the April 2017 incident. Consequently, the challenged evidence did not qualify as Williams rule evidence. 1Williams v. State, 110 So. 2d 654, 663 (Fla. 1959); see also § 90.404(2)(a), Fla. Stat. (2016). -5- We likewise reject the State's alternative argument that the challenged evidence was inextricably intertwined with the April 2017 incident. The evidence relating to the prior warnings and reprimands for conduct completely dissimilar to the charged crime and involving different schoolchildren was (1) not necessary to describe the charged crime, (2) did not provide an intelligent account of the charged crime, (3) did not establish the entire context out of which the charged crime arose, and (4) did not adequately describe the events leading up to the charged crime. Cf. Dorsett v. State, 944 So. 2d 1207, 1213 (Fla. 3d DCA 2006). Beyond the State's introduction of testimony and the taped interview between Baez-Ortiz and the detective, both of which involved lengthy discussion of the prior warnings and reprimands that Baez-Ortiz had received, the State also made the evidence a feature in the prosecutor's closing argument. The prosecutor argued extensively to the jury regarding the prior warnings and reprimands, including the assertion that Baez-Ortiz knew that his conduct "could be perceived as something criminal" which, considering that the prior incidents involved hugging, not criminal per se, is an exaggeration of what had actually transpired in the earlier incidents. Thus the introduction of the challenged evidence, in conjunction with the State's closing argument, makes it clear that the State's sole purpose was to improperly influence the jury by painting Baez-Ortiz as a repeat offender. Any probative value of the challenged evidence was clearly outweighed by the prejudicial effect, and we cannot construe this error as harmless. The State points to the other evidence in the case, including the victim's and the school cafeteria worker's testimonies and Baez-Ortiz's statements made in his interview, in support of its -6- argument that there is no reasonable probability that the admission of the challenged evidence contributed to the verdict. The State also notes that the principal explained that the prior incidents were not inappropriate in the same manner as the charged crime. However, the harmless error test is not a "sufficiency-of-the-evidence" or "even an overwhelming evidence" test. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). And we may not substitute our opinion for that of the fact-finder as to the weight of the evidence. Id. Rather the focus is on whether the State met its burden of proving that there is no reasonable possibility that the error affected the verdict. Id. And here, we cannot say beyond a reasonable doubt that the improper admission of the challenged evidence, along with the State's focus on this evidence during its closing, did not affect the verdict. Thus the error was harmful, and we must reverse and remand for a new trial.2 Reversed and remanded. CASANUEVA and VILLANTI, JJ., Concur. 2We were not persuaded by Baez-Ortiz's second argument challenging the sufficiency of the evidence regarding his intent and the trial court's denial of his motion for judgment of acquittal. Thus we do not address it further. -7-