Richard Andrew Barry, III v. State of Florida , 264 So. 3d 1176 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2276
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RICHARD ANDREW BARRY, III,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Alachua County.
Phillip A. Pena, Judge.
February 28, 2019
B.L. THOMAS, C.J.
Appellant challenges his convictions for two counts of
solicitation to commit first degree murder. He argues that the trial
court erred in consolidating his two cases, and in admitting
evidence of collateral crimes.
Consolidation of Separate Informations
The trial court granted the State’s motion to consolidate
Appellant’s two solicitation cases, which were charged by separate
informations. At the consolidated trial, two inmates of Alachua
County Jail testified that Appellant approached each of them and
asked them to arrange the murder of three witnesses who were to
testify against Appellant at his upcoming trial for lewd and
lascivious molestation. Appellant’s former girlfriend testified that
Appellant sexually abused her daughter, whom Appellant helped
raise. The detective who investigated the child sex abuse testified
about his investigation and Appellant’s arrest.
A trial court’s order consolidating charges is reviewed for
abuse of discretion. Fletcher v. State, 168 So. 3d 186, 202 (Fla.
2015). To consolidate separate cases for trial, the offenses must
have a “meaningful relationship,” meaning the crimes “‘must be
linked in some significant way.’” Lindsey v. State, 220 So. 3d 1255,
1257 (Fla. 1st DCA 2017) (quoting Lugo v. State, 845 So. 2d 74, 93
(Fla. 2003)). Appellant argues that because there was no
uninterrupted sequence or crime spree, his solicitation cases had
no meaningful relationship. Florida courts have affirmed
consolidation on the basis of an uninterrupted or causal sequence
establishing a meaningful relationship. E.g., Fotopoulos v. State,
608 So. 2d 784, 786 (Fla. 1992) (where the defendant filmed his
accomplice killing a man, and then used the video as leverage to
ensure the accomplice’s cooperation with the second offense). But
Florida courts have not held that such a sequence is the only basis
for a meaningful relationship.
Although the two inmates here were approached separately
by Appellant, both were solicited at the Alachua County Jail while
Appellant was awaiting trial. Both were asked to arrange the
murder of the three witnesses against Appellant. The meaningful
relationship between these two crimes is that they were both part
of a single concerted effort to “silence” the three people who could
send Appellant to prison for child sex crimes. In addition, one
inmate testified that although Appellant tried on multiple
occasions to persuade him to kill the intended victims, the inmate
never agreed to participate and never accepted Appellant’s offers
of compensation. The evidence that the solicitation of this inmate
was unsuccessful provided an explanation and motive for
Appellant to approach the second inmate, showing an episodic
connection. See Livingston v. State, 565 So. 2d 1288, 1290 (Fla.
1988) (finding no error in the consolidation of two cases “connected
in an episodic sense”). Thus, the two offenses were significantly
linked, and the trial court did not abuse its discretion by
consolidating the two cases.
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Collateral Crime Evidence
A trial court’s ruling on the admissibility of collateral-crime
evidence is reviewed for abuse of discretion. Wright v. State, 19 So.
3d 277, 291 (Fla. 2009). Evidence of collateral crimes can be
admitted where the evidence is “inextricably intertwined” with the
charged offense. Kates v. State, 41 So. 3d 1044, 1045 (Fla. 1st DCA
2010). Such evidence is admissible if it is needed to: “(1)
adequately describe the charged act, (2) provide an intelligent
account of the crime charged, (3) establish the entire context out of
which the charged crime arose, or (4) adequately describe the
events leading up to the charged crime.” Id. at 1045-46.
Inextricably intertwined evidence is not considered Williams 1 rule
evidence. Wright, 19 So. 3d at 292.
In LaMarca v. State, evidence that the defendant had raped
his daughter and his step-daughter was relevant to prove the
charged murder of the defendant’s son-in-law. 785 So. 2d 1209,
1213 (Fla. 2001). The evidence of the step-daughter’s rape
established premeditation and motive, as the son-in-law had
confronted the defendant about the rape just hours before the
murder. Id. The other rape was relevant to explain that the
defendant’s comments to his daughter – that she should leave the
state with him and that her feelings for the victim would fade in
time – were motivated by more than fatherly concern. Id.Here, evidence that Appellant molested his girlfriend’s
daughter was relevant to establish that he had a motive to solicit
someone to kill the child and other witnesses who could testify
against him regarding the molestation, including the child victim’s
brother. Without this evidence, the jury could not understand why
Appellant would hire someone to kill children he helped raise. 2
As the evidence of the child molestation was inextricably
intertwined with the charged solicitation offenses, the issue is
1 Williams v. State, 110 So. 2d 654 (Fla. 1959).
2 The inmate testified that Appellant “said he’d rather go to
prison for murder than the sex charges that he had. Because he
knew how bad inmates frown upon that.”
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whether the probative value of the evidence was substantially
outweighed by the danger of unfair prejudice, misleading the jury,
or needless presentation of cumulative evidence, such as to
constitute an abuse of discretion. See § 90.403, Fla. Stat. (2017);
Wright, 19 So. 3d at 292 (holding that even inextricably
intertwined evidence is subject to the balancing test of section
90.403, Florida Statutes); McLean v. State, 934 So. 2d 1248, 1259
(Fla. 2006) (“trial courts are gatekeepers in ensuring that evidence
of prior acts of child molestation is not so prejudicial that the
defendant is convicted based on the prior sexual misconduct.”).
In Ballard v. State, 66 So. 3d 912, 917 (Fla. 2011), the supreme
court held that evidence of the defendant’s sexual relationship
with the murder victim’s minor daughter, including testimony
from multiple witnesses and physical evidence of the sexual
relationship, was admissible to establish a motive to murder. Id.
at 918. The supreme court held that the evidence “was not wholly
inflammatory without any relevance to the case[,]” because “there
was no reasonable way for the State to have excluded the
testimony while accurately describing the chain of events that led
to [the victim]’s disappearance.” Id.The collateral crime here was inextricably intertwined with
the charged offenses, and the probative value of the collateral-
crime evidence was not substantially outweighed by the danger of
unfair prejudice. See Razz v. State, 231 So. 3d 479, 482 (Fla. 4th
DCA 2017) (explaining why each piece of collateral-crime evidence
was necessary and not cumulative to other evidence). The child
victim’s mother testified about her daughter’s sexual abuse and
the aftermath of that abuse; this evidence uniquely suggested that
the intended murder victims were in fact planning to testify
against Appellant, supporting the theory of motive. Likewise, the
detective’s testimony about the sex abuse investigation, the
recovery of physical evidence of the sex crime, and Appellant’s
arrest and charges, tended to prove that Appellant was aware he
was in serious legal jeopardy. Thus, as the collateral-crime
evidence was not cumulative or wholly inflammatory, and was
necessary for the jury to rationally consider the charged offenses,
it was not an abuse of discretion for the trial court to conclude that
this evidence never reached the point of inadmissibility under
section 90.403. See Ballard, 66 So. 3d at 918.
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AFFIRMED.
BILBREY and JAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, Danielle Jorden, Assistant Public
Defender, Tallahassee, for Appellant.
Ashley B. Moody, Attorney General, Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.
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