Full Opinion

Third District Court of Appeal State of Florida Opinion filed January 22, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-1433 Lower Tribunal No. 16-24764 ________________ Alberto Vinas, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Spencer J. Multack, Judge. Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee. Before EMAS, C.J., and SALTER and LOBREE, JJ. PER CURIAM. The State of Florida charged Alberto Vinas with five counts of selling heroin within 1,000 feet of a school and one count of possessing a place for the purpose of trafficking in a controlled substance. The alleged sales occurred on five separate dates. Vinas appeals his convictions and sentences for four counts of sale within 1,000 feet of a school, contending that the trial court erred in denying his motion to sever count two from the remaining charges. We affirm. Miami-Dade Police Detective Robert Love was assigned to conduct a controlled heroin buy in a trailer park in Miami from a person nicknamed “El Viejo.” Det. Love arrived at the park, knocked on the door of a trailer located 287 feet from an elementary school, and called out for El Viejo. When an individual later identified as Vinas came to the door, Det. Love asked for four “boy” (a street term for heroin). Vinas sold Det. Love four baggies for forty dollars. Two days later, Det. Love went back to Vinas’ trailer to make another purchase. This time, he set up a surveillance van to record the transaction and wore an audio recording device. 1 Again, Det. Love gave Vinas forty dollars in return for four baggies of heroin. Det. Love then ordered a “bundle” of heroin (a street term for one gram or ten baggies). Four days later, Det. Love returned to Vinas’ trailer to purchase four baggies of heroin for forty dollars. Two days later, Det. Love returned to purchase the ninety- dollar bundle of heroin that he had ordered during the recorded transaction. Six days later, Det. Love returned to buy another bundle of heroin. Det. Love explained he 1 The surveillance footage was admitted into evidence. 2 had increased the amount of heroin he was purchasing in the hopes of discovering Vinas’ supplier. All the baggies seized from the five transactions were sent to the lab and tested positive for heroin. Prior to trial, Vinas moved to sever count two, as the second alleged sale was the only one involving a surveillance video. Vinas argued that because the evidence as to this count was stronger, the jury could be misled into thinking that he had a propensity to commit crimes and unduly prejudice him. Notably, defense counsel advised the court that he chose not to seek severance of the other counts as he intended to use the same theory of defense as to each. The State responded orally to the motion, arguing that Solomon v. State, 596 So. 2d 789, 790 (Fla. 3d DCA 1992) (concluding that “where the crimes occurred during the course of an ongoing investigation, within a limited period of time and in a limited geographical area, and are clearly connected in an episodic sense, they may be tried together”), and Flanagan v. State, 566 So. 2d 868 (Fla. 2d DCA 1990), supported denial, since the transactions were connected in an episodic sense. The trial court relied on Solomon and Flanagan in denying the severance motion. Thereafter, the jury found Vinas guilty of counts one through four and acquitted him of counts five and six. This appeal ensued. Vinas argues that the trial court erred in denying his motion to sever because the second alleged sale occurred on a different date and the evidence the State relied 3 upon in count two clearly bolstered the proof for the other counts. We review the trial court’s denial of a motion to sever for an abuse of discretion. See Fotopoulos v. State, 608 So. 2d 784, 790 (Fla. 1992). Two or more related offenses may be joined if they are based on the same act or transaction or on two or more connected acts or transactions. See Fla. R. Crim. P. 3.150(a); Fotopoulos, 608 So. 2d at 789. Florida courts have long recognized that “[t]he danger in improper consolidation lies in the fact that evidence relating to each of the crimes may have the effect of bolstering the proof of the other.” Crossley v. State, 596 So. 2d 447, 450 (Fla. 1992). “Therefore, the court must be careful that there is a meaningful relationship between the charges of two separate crimes before permitting them to be tried together.” Id. When determining whether two or more offenses are based on connected acts or transactions, “[c]ourts may consider the temporal and geographical association, the nature of the crimes and the manner in which they were committed.” Fotopoulos, 608 So. 2d at 789. The offenses must be “connected in an episodic sense.” Id. at 790. Generally, “[s]eparate trials are required for similar offenses which are unrelated in terms of time or sequence.” Solomon, 596 So. 2d at 791; see also Crossley, 596 So. 2d at 450 (holding that trial court abused its discretion in failing to sever two robberies committed within three hours and three miles of each other and involving 4 similar circumstances, as episodes were entirely independent and there was nothing to connect crimes). In Solomon, an undercover officer offered to buy cocaine from the defendant. 596 So. 2d at 790. After the defendant sold the officer some cocaine, the defendant went to his apartment to get more. Id. Five days later, the officer returned to conduct a search of the defendant’s apartment, where he found cocaine on the floor. Id. The defendant was charged with one count of selling cocaine within 1,000 feet of a school and one count of possessing cocaine with intent to sell. Id. The defendant unsuccessfully moved to sever the charges, contending that they were unrelated. Id. This court affirmed, reasoning that: [T]he two alleged crimes occurred during the course of an ongoing investigation. The crimes also occurred within a limited five day period of time. Additionally, the two transactions were episodically connected because: (1) in both instances the apartment was used as a storage place for drugs; and, (2) Solomon’s sale of drugs led the officer to obtain a search warrant, which in turn, led to the seizure of drugs. Id. at 791. Similarly, in Flanagan, the defendant was charged with eleven counts of dealing in stolen property resulting from a sting operation. 566 So. 2d at 869-70. The defendant moved to sever, arguing that the transactions were not sufficiently connected to allow consolidation of the counts. Id. at 870. The Second District held that the trial court did not abuse its discretion because “each incident was part of an 5 ongoing series of dealing in stolen property.” Id. The court further stated that after being recruited by the officers, the defendant developed a certain routine for selling the stolen merchandise. Id. Specifically, the defendant initiated the sales, dealt with the same officers, and the transactions typically occurred either at the video tape store or at the defendant’s apartment, at routine intervals, and as a part of a common scheme or plan. Id.; see also Davis v. State, 670 So. 2d 1036, 1037 (Fla. 2d DCA 1996) (holding that trial court did not abuse its discretion in denying motion to sever defendant’s various drug charges from those of his co-defendants, as “the charged offenses were episodic” and “occurred in the same geographic area during the same limited period of time and were part of an ongoing investigation”). Vinas relies on Dupree v. State, 705 So. 2d 90, 97 (Fla. 4th DCA 1998), Pittman v. State, 693 So. 2d 1133, 1134 (Fla. 1st DCA 1997), and Granville v. State, 625 So. 2d 1258, 1260 (Fla. 1st DCA 1993), in his contention that it is error to deny a motion to sever drug offenses which occurred on different dates, even when the participants to the drug transactions were the same, as each sale is distinct and separate transaction. The State responds that the joinder was proper based on this court’s decision in Solomon, 596 So. 2d at 790, as the five heroin sales all resulted from a targeted two-week law enforcement investigation, involved the same parties, and occurred at the same trailer. 6 In Dupree, there was a series of controlled buys, which occurred on several separate occasions, within a short period of time, in limited geographical area, and with the same participants. 705 So. 2d at 91-93. The defendant filed a motion to sever each of his possession, sale, and trafficking counts, arguing that by trying all four dates together, his guilt or innocence could not be determined fairly. Id. at 95. The trial court denied the motion. Id. The Fourth District held that each of the four transactions was a separate and distinct offense, receding from its earlier decision in Williams v. State, 409 So. 2d 253, 254 (Fla. 4th DCA 1982),2 in which it permitted one trial for a series of drug sales which occurred during an ongoing investigation, within a limited period of time, in limited geographical area, and where the participants were the same. Dupree, 705 So. 2d at 97; see also Pittman, 693 So. 2d at 1134 (reversing defendant’s three convictions for sale of cocaine for separate new trials because first two sales and third sale “were not all part of the same criminal episode”); Granville, 625 So. 2d at 1260 (finding abuse of discretion in trial court’s denial of motion to sever two drug sales arising out of transactions which occurred on two days separated by one week and made to same informant, as “the transactions, although arguably occurring during the course of an ongoing investigation, were not so clearly connected in an episodic sense”). 2 Williams was cited by this court as authority in Solomon, 596 So. 2d at 791. 7 The State argues that denial of severance was appropriate because each sale Vinas made to Det. Love precipitated the next sale, as the police were increasing the amount of heroin being purchased in the hopes of discovering Vinas’ supplier. However, in Dupree, the court determined that whether the offenses constitute a part of a criminal episode does not depend on the activities of investigating police because the focus has to be on the activities of the defendant. 705 So. 2d at 96-97. In the instant case, the recorded transaction that was the basis of count two was intertwined with or connected in an episodic sense to that in count four, when Det. Love completed the purchase of the bundle of heroin that he had ordered during the prior, recorded transaction. Accordingly, we need not determine here whether to refine our holding in Solomon, as the Fourth District did in Dupree. Even if we were to conclude that the trial court improperly focused on the actions of investigating officers to connect the offenses, any such error was harmless beyond a reasonable doubt. Specifically, Vinas sought severance only of count two, and in doing so, undercut his own undue prejudice argument. Further, had severance been granted, the State would have been entitled to introduce evidence of Vinas’ actions alleged in count two as Williams 3 rule evidence. See Crossley, 596 So. 2d at 450; Johnson v. State, 796 So. 2d 1196, 1198 (Fla. 4th DCA 2001). Moreover, the jury demonstrated its ability to differentiate between the various charges, as Vinas 3 Williams v. State, 110 So. 2d 654 (Fla. 1959). 8 was acquitted of counts five and six. See Kablitz v. State, 979 So. 2d 969, 972 (Fla. 4th DCA 2008). Accordingly, we affirm the judgment and sentence. Affirmed. 9