JOSE REYNA v. STATE OF FLORIDA ( 2020 )


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  •            DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    JOSE REYNA,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    No. 4D19-2306
    [August 26, 2020]
    Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
    Beach  County;    Cheryl    Caracuzzo,      Judge;   L.T.    Case    No.
    502015CF004073A.
    Kristen A. Kawass of Law Offices of Kawass, P.A., Miami, for appellant.
    Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III,
    Assistant Attorney General, West Palm Beach, for appellee.
    GROSS, J.
    We reverse convictions for three counts of sexual battery because the
    trial court abused its discretion in admitting evidence of a collateral crime.
    We remand for a new trial in which the collateral crime evidence is
    excluded.
    The state charged Jose Reyna with three counts of sexual battery under
    section 794.011(5)(b), Florida Statutes (2015), by a person eighteen years
    of age or older upon a person over eighteen. All three counts arose from
    one encounter; count 1 alleged digital penetration of the victim’s vagina,
    count 2 alleged oral penetration or union with the victim’s vagina, and
    count 3 alleged penile penetration or union with the victim’s vagina.
    The state timely filed a notice of its intent to offer Williams 1 rule
    evidence pursuant to section 90.404(2)(c), Florida Statutes (2015). The
    state sought to introduce evidence of a separate incident that occurred in
    
    1 Will. v
    . State, 
    110 So. 2d 654
    (Fla. 1959).
    October 2010, described in more detail below. After an evidentiary
    hearing, the circuit court ruled that the testimony was admissible.
    The Evidence at Trial
    The State’s Case
    The victim testified that she met appellant through his wife, with whom
    she worked. She vacationed with the couple and had stayed at their house
    in a spare bedroom numerous times after socializing with them. Prior to
    the night of the incident, nothing inappropriate had occurred between her
    and appellant.
    On January 18, 2015, the victim made plans with the wife to socialize.
    The game plan for the evening was to hang out, have fun, and help the
    victim forget an unhappy personal matter. The victim went to the Reyna
    home the evening of the incident with a packed bag because she was
    planning on staying overnight.
    Using her car, the victim drove the Reynas to the Clematis Street area
    of West Palm Beach. Their first stop was a wine bar, where they ordered
    food, drinks, and a bottle of wine.
    The trio next went to a different bar where they ordered three rounds
    of drinks, danced, and had a good time. By the time they left, the victim
    testified that she was “buzzed.” Next, the three went to a restaurant,
    owned by an acquaintance of the Reynas, for more drinks.
    After leaving the restaurant, the group returned to the Reyna home.
    Because the house was being renovated, one of the bedrooms was
    unavailable. The Reynas took the other bedroom, and the victim prepared
    to sleep on the couch in the living room. The couch was an L-shaped,
    sectional couch. Once they arrived at the home, the victim poured herself
    a glass of red wine from a bottle in the kitchen and sat on the couch. She
    spilled the wine on her t-shirt and changed into something else. Then she
    had some tequila.
    The victim fell asleep on the couch. The victim was awakened by
    someone kissing her on the mouth. She testified that
    it was kind of one of those like “What is happening?” Once I
    opened my eyes, it was dark. Like dark hair, dark skin. It
    didn’t feel familiar. It didn’t smell familiar. I mean, if that
    even—it just felt very strange and very disorienting. I
    2
    remember thinking—and then once I realized what was
    happening, I was just like “What are you doing?” It was just
    such a strange, almost shocking “What are you doing?”
    The victim realized that it was appellant. She swatted at him and asked,
    “What are you doing?” She told him he needed to go back to bed.
    The victim described the rest of the night as a series of “flashes.” She
    kept falling back asleep, only to be awakened by different types of
    touching.
    The next time she awoke to appellant kissing her chest, after having
    unzipped her fleece pullover. She repeatedly swatted at him, asked him
    what he was doing, and told him, “Go to bed with your wife.”
    The next thing the victim remembered was that appellant “put his
    hands down my shorts and began to stick his fingers inside of me.” It was
    uncomfortable and the victim pushed him away to make him stop. At
    another time, she was awakened by appellant performing oral sex upon
    her. Concerning the third form of assault, the victim testified that
    at some point, he was in front of me and in between my legs.
    And at some point, I did feel him—I felt him actually put his
    penis inside of me. . . . [When appellant was] on top of me and
    actually was having sex with me, I did finally get my feet up
    on his hips and push him away and say, “No.”
    The prosecutor asked the victim why she didn’t yell or scream during
    the events on the couch. The victim explained:
    I mean, this is—this is my friend. This is somebody that I
    know. And also it was—I was completely humiliated that his
    wife was my really good friend. And I didn’t want her to know.
    I didn’t—it was just such a—it wasn’t even that terribly what
    I would call violent. It was just so inappropriate and so
    shocking and so unexpected. I’m not really the type of person
    that would scream or get that terribly emotional, anyway. But
    I—I mean, I didn’t want [the wife] to know what was going on.
    And I did not understand why he was doing it.
    After the final assault, the victim fell asleep. She woke up the next
    morning and took a shower. While in the shower, the victim realized that
    something was wrong. She had abnormal discharge and cramping in her
    abdomen. She threw her clothes in her overnight bag and left the house.
    3
    For the rest of the day, the victim hung out at home and reported the
    incident to no one.
    The victim testified that her memories about the incident returned at
    work the next day. She began panicking but continued working. When
    she encountered appellant’s wife, she did not tell her what had happened
    and insisted that she was busy with work.
    After the victim told her sister about the assault, the victim decided to
    go to the hospital, where a nurse performed a rape exam and the incident
    was reported to the police.
    Later, the police contacted the victim to participate in recorded,
    controlled calls with appellant. On the calls, when confronted by the
    victim, appellant repeatedly said he was sorry, but he also said he had no
    memory of anything:
    . . . [T]o tell you the truth what I remember is . . . being told
    to go to bed by [my wife]. And then I—and then I went to bed
    and then I woke up and I had this massive headache.
    At another point in the call he said “I don’t remember. And I apologize
    because seriously, I don’t understand. I have to now figure out what the
    hell’s now going on in my head.”
    The Williams Rule Testimony
    At the admissibility hearing, the Williams rule witness identified herself
    as a detective at a local law enforcement agency, assigned to a unit that
    focused on sex crimes. She said she had socialized occasionally with the
    Reynas.
    In October 2010, the witness made plans to attend the “Moonfest”
    festival on Clematis Street with the Reynas and another person. They met
    at the Reynas’ house for food and drinks before leaving for the festival. On
    Clematis Street, they danced, talked, and drank “to the point of
    impairment.”
    At one of the bars, the witness and appellant were in the back “just
    talking [and] hanging out.” Somehow, they got pushed out the back door
    into the alley and then the door closed. The door was flush with the wall
    and there was no handle, so they could not get back into the bar from the
    alley.
    4
    The witness and appellant walked to a bench and sat down. They tried
    to call appellant’s wife. Appellant started trying to kiss the witness and
    said she was beautiful. She protested that appellant was married and
    pushed him off. At one point, the witness testified that appellant
    leaned over on top of me and started shoving his hand up
    under my skirt and ended up like touching in my vagina . . . .
    He just kind of like got on top of me. And then just shoved
    his hand—it was really quick. He just shoved his hand up my
    skirt.
    Appellant’s sudden action ripped her pantyhose. The witness pushed
    appellant to get out from underneath him and “took off running.” She ran
    to a convenience store and used the phone to call her mother, who came
    to pick her up. At trial, the witness testified consistently with her
    testimony at the prior hearing, adding just a few details.
    The Defense Case
    Appellant testified at trial. He claimed he had no memory of assaulting
    the victim. On the night of the incident, he fell asleep on the couch in the
    living room, which he often did when he had back problems. The next
    thing he remembered was his wife waking him up and taking him to bed.
    He said he was completely clothed when his wife came to get him.
    The wife testified that she never saw anything inappropriate occur
    between appellant and the victim. Both Reynas testified that a key point
    of the evening was to discuss the victim’s poor job performance and to alert
    her that her job was in jeopardy. Both Reynas testified that appellant
    suffered from a herniated disc and that he took a prescribed medication,
    Flexeril, after he arrived back at home the evening of the incident
    Appellant denied the Williams rule witness’s allegations. He stated that
    the witness kissed him once. He said no other sexual contact occurred.
    As to the controlled calls, appellant said he was in shock and disbelief.
    He testified that the victim was a close friend in a fragile state of mind from
    a breakup over the holidays. He did not know what was going on and he
    wanted to calm both her and the situation down.
    Appellant was convicted of all three crimes. On appeal, he primarily
    raises the Williams rule issue.
    5
    The trial court abused its discretion by admitting collateral crime
    evidence under section 90.404(2)(c) because, under the McLean v.
    State analytical framework, there were insufficient points of
    similarity between the charged crime and the collateral crime
    For years, the admissibility of other crimes, wrongs, or acts was
    evaluated under section 90.404(2)(a), Florida Statutes. The current
    version of section 90.404(2)(a) provides:
    Similar fact evidence of other crimes, wrongs, or acts is
    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, but it is inadmissible when the evidence
    is relevant solely to prove bad character or propensity.
    § 90.404(2)(a), Fla. Stat. (2020).
    This section “restate[d] the Florida law as determined by Williams v.
    State,” 
    110 So. 2d 654
    (Fla. 1959). Charles W. Ehrhardt, Florida Evidence
    § 404.9 (2012 ed.). Applying this section of the evidence code, courts were
    cautious when asked to admit collateral crime evidence in sexual battery
    cases, so as not to run afoul of the statutory prohibition against admitting
    such evidence “solely to prove bad character or propensity.” See, e.g.,
    Feller v. State, 
    637 So. 2d 911
    , 916 (Fla. 1994) (addressing Williams rule
    issue in order to offer guidance on retrial, explaining that sexual battery
    on an underage child is not uniformly admissible under section 90.404(2),
    and emphasizing that the acts at issue had only two things in common—
    they involved the same type of offense and both victims were young girls);
    Williams v. State, 
    621 So. 2d 413
    , 416 (Fla. 1993) (observing that “because
    consent is unique to the individual the mere fact that the victim of an
    unrelated assault did not consent cannot serve as evidence of nonconsent
    by the victim of the charged offense”); Frieson v. State, 
    512 So. 2d 1092
    ,
    1093 (Fla. 2d DCA 1987) (in a sexual battery prosecution, it was error to
    admit evidence that defendant had committed another sexual battery
    where only similarity between the two offenses was that both were sexual
    batteries).
    In 2011, the Florida Legislature enacted section 90.404(2)(c), Florida
    Statutes, applicable when a defendant is charged with a “sexual offense.”
    Ch. 2011-220, § 2, Laws of Fla. Section 90.404(2)(c) provides in relevant
    part:
    6
    In a criminal case in which the defendant is charged with a
    sexual offense, evidence of the defendant’s commission of
    other crimes, wrongs, or acts involving a sexual offense is
    admissible and may be considered for its bearing on any
    matter to which it is relevant.
    § 90.404(2)(c)1., Fla. Stat. (2018). Subsection 90.404(2)(c)2. defines a
    “sexual offense” as including the crimes charged in this case.
    The wording of section 90.404(2)(c)1. is strikingly similar to that of the
    previously enacted section 90.402(2)(b)1., which applies in “child
    molestation” cases. Because of this similarity, courts have applied the
    admissibility framework of McLean v. State, 
    934 So. 2d 1248
    (Fla. 2006),
    to evidence introduced under 90.404(2)(c), even though McLean involved a
    child molestation case falling under section 90.404(2)(b). See, e.g., Whisby
    v. State, 
    262 So. 3d 228
    , 232 (Fla. 1st DCA 2018); Charles W. Ehrhardt,
    Florida Evidence § 404.18 (2012 ed.).
    Like the statute at issue in McLean, the plain language of section
    90.404(2)(c)1. is broad—collateral crime evidence is “admissible and may
    be considered for its bearing on any matter to which it is relevant.” §
    90.404(2)(c)1., Fla. Stat. (2018) (emphasis added). In McLean, the Florida
    Supreme Court narrowed the broad sweep of section 90.404(2)(b)1. by
    reading the statute in conjunction with section 90.403, Florida Statutes
    (2005), which requires that the probative value of relevant evidence be
    weighed against its potential for unfair prejudice. 
    McLean, 934 So. 2d at 1251
    . The supreme court resolved a due process challenge to section
    90.404(2)(b) by applying section 90.403 considerations to ensure that the
    door is not opened “to introduction of any and all propensity evidence in
    sexual molestation cases.”
    Id. Central to the
    section 90.403 analysis mandated by McLean is the
    notion of similarity between the collateral act and the charged offense. In
    upholding the constitutionality of the statute, the court noted that “[t]he
    similarity of the collateral act . . . and charged offense is a critical
    consideration for the trial court in conducting an appropriate weighing
    under section 90.403.”
    Id. at 1259
    .
    The court explained that the similarity between the two acts is
    important in determining admissibility in two ways:
    First, the less similar the prior acts, the less relevant they are
    to the charged crime, and therefore the less likely they will be
    admissible. Second, the less similar the prior acts, the more
    7
    likely that the probative value of this evidence will be
    “substantially outweighed by the danger of unfair prejudice,
    confusion of issues, misleading the jury, or needless
    presentation of cumulative evidence.”
    Id. at 1259
    (quoting § 90.403, Fla. Stat.).
    McLean set forth a non-exclusive list of factors a trial court should
    consider when determining whether the probative value of previous sexual
    offenses is substantially outweighed by the danger of unfair prejudice:
    (1) the similarity of the prior acts to the act charged regarding
    the location of where the acts occurred, the age and gender of
    the victims, and the manner in which the acts were
    committed; (2) the closeness in time of the prior acts to the act
    charged; (3) the frequency of the prior acts; and (4) the
    presence or lack of intervening circumstances.
    Id. at 1262.
    Since section 90.404(2)(c) was enacted in 2011, several cases have
    interpreted the statute. For collateral sex crimes to be admissible, courts
    have applied section 90.404(2)(c) to require significant similarity between
    the collateral evidence and the charged crime, evidence so similar and
    specific that it resembles a clear pattern of conduct. This is in contrast to
    child molestation prosecutions where collateral crime evidence under
    section 90.404(2)(b) is a common prosecutorial tool. See Pridemore v.
    State, No. 4D19-1555, 
    2020 WL 4496072
    (Fla. 4th DCA Aug. 5, 2020). The
    law requires greater similarity under 90.404(2)(c) than in child molestation
    cases because the adult cases can involve defenses—identification and
    consent—that are not present in crimes against children. Evidence can
    be more nuanced in adult cases and subject to different interpretations.
    For example, in Whisby, the First District held that collateral crime
    evidence was admissible where it occurred less than twenty-four hours
    from the charged crime and in an “almost identical 
    fashion.” 262 So. 3d at 232
    . In both instances, the defendant forced the victim into his car at
    gunpoint, drove her to various locations while coercing her to engage in
    sexual acts, and concluded the incident by using a tissue or napkin to
    either clean himself or the victim.
    Id. Also, both incidents
    involved women
    who had previously had intimate relationships with the defendant.
    Id. Courts find adequate
    similarity under 90.404(2)(c) when the
    defendant’s conduct conforms to an identifiable pattern. See, e.g., Bruce
    8
    v. State, 
    44 So. 3d 1225
    , 1229 (Fla. 5th DCA 2010) (“The victim’s and
    [witness’s] testimony demonstrated a clear pattern of conduct.”). In Bruce,
    the court pointed to the numerous and specific similarities present in both
    instances in holding that the collateral evidence was admissible. See
    id. The victims were
    both women of the same age, the defendant knew both
    women from church, and he knew both were single and lived alone.
    Id. The defendant befriended
    the women by performing handyman services
    and commiserating with each about the hardship of caring for a loved one
    with disabilities.
    Id. During the course
    of performing handyman services,
    he not only made sexual advances but fondled the breasts of each.
    Id. Afterwards, he called
    both women expressing his love, then anger when
    they rejected his advances.
    Id. The court noted
    that the only difference
    was that the defendant successfully completed the sexual battery against
    the victim but was unable to with the collateral act witness.
    Id. Similarly, in Wade
    v. State, 
    265 So. 3d 677
    (Fla. 1st DCA 2019), the
    court found two prior acts similar to the charged crime, where in all three
    instances the defendant approached the victims on a bicycle, threatened
    them with a knife, and forced them to have sex with him. In Mann v. State,
    
    281 So. 3d 503
    (Fla. 4th DCA 2019), the court found the prior act was
    sufficiently similar where both victims testified that the defendant
    kidnapped then raped them, and where the crimes took place within one
    month of each other. In Pitts v. State, 
    263 So. 3d 834
    , 840 (Fla. 1st DCA
    2019), the court held that collateral crime evidence was admissible where
    in both acts, the defendant was accused of digitally penetrating a female
    victim while she was sleeping or passed out following a night of drinking.
    Here, the charged crimes were similar to that in Pitts, but the collateral
    evidence involved a different criminal act. There is no clear pattern of
    conduct between the charged crimes and the collateral act. The attack on
    the Williams rule witness on a bench in a public place is only minimally
    probative of the charged crime—repeated sexual batteries against a
    passed-out woman on a couch in a residential living room. As the supreme
    court observed in McLean, the less similar the prior acts are to the charged
    crime, the less relevant they are to that 
    crime. 934 So. 2d at 1259
    .
    In this case, there are some similarities between the charged crimes
    and the collateral conduct; both cases involved the consumption of alcohol
    on Clematis Street and an accuser who socialized with the Reynas.
    However, these similarities are outweighed by the differences between the
    two crimes, so there is no clear pattern of sexual misconduct:
    •   The victim was a close friend of the Reynas who regularly
    slept over at their home; the Williams rule witness was a
    9
    casual acquaintance who socialized occasionally with the
    Reynas.
    •   The charged crimes occurred on a couch in a private living
    room; the collateral act occurred on a public bench in an
    alley.
    •   The victim had a work relationship with the Reynas; the
    Williams rule witness had no such work relationship.
    •   The charged crimes were three sexual batteries that
    occurred over an extended period of time, with the attack
    occurring as the victim hovered between consciousness
    and sleep; the Williams rule witness was very much awake
    during the collateral act, a sudden groping of her genital
    area. 2
    •   There was a gap of over four years between the two
    incidents.
    Because of the significant disparities between the charged crimes and
    the collateral act, that act is only weakly probative of the charged crimes.3
    As the supreme court observed in McLean, where a collateral crime is so
    minimally probative, it is “more likely that the probative value of this
    evidence will be ‘substantially outweighed by the danger of unfair
    prejudice, confusion of issues, misleading the jury, or needless
    presentation of cumulative evidence’” under section 
    90.403. 934 So. 2d at 1259
    . Moreover, in this case, the fact that the Williams rule witness
    was a detective in a sex crimes unit carried an additional risk of undue
    prejudice in a section 90.403 analysis, as juries often afford great weight
    to the testimony of police officers. See, e.g., Salomon v. State, 
    267 So. 3d 25
    , 32 (Fla. 4th DCA 2019) (explaining that police officers “bring with their
    testimony an air of authority and legitimacy,” and that a jury “is inclined
    to give great weight” to such testimony).
    2We do not blame the victim here. We are simply analyzing the manner in which
    the acts were committed, as the law requires us to do under McLean.
    3The dissent dismisses significant differences between the charged acts and the
    collateral act as “immaterial.” However, the dissent’s view of similarity would
    open the door too wide under section 90.404(2)(c)—any collateral act of sexual
    battery would be admissible as Williams rule evidence in the prosecution of the
    charged act, so long as both acts involved alcohol and an opportunity that arose
    when the defendant was alone with the accuser.
    10
    Without the collateral evidence, the jury faced a difficult question in
    this case—what to make of testimony of the two primary actors who had
    consumed such large amounts of alcohol that their memories of the crucial
    night were dim? In such a circumstance, evidence of the prior, dissimilar
    conduct smoothed over the difficulties in the state’s case. In applying
    section 90.404(2)(c), trial courts are gatekeepers in ensuring that evidence
    of prior acts of sexual misconduct do not unfairly prejudice a defendant or
    mislead the jury. Here, the trial court abused its discretion in admitting
    the Williams rule witness’s testimony. Without adherence to the McLean
    requirement of significant similarity, trials of sexual offenses would too
    often descend into character assassination by the introduction of
    marginally similar bad acts.
    The dissent uses a buffet approach to the law of evidence by combining
    distinct portions of the evidence code to buttress its case for admissibility.
    The dissent suggests that the collateral crime evidence was admissible to
    prove the “absence of mistake,” a consideration under subsection
    90.404(2)(a). However, mistake is not a defense to sexual battery—a
    defendant cannot avoid criminal responsibility for attacking the victim by
    saying that he thought he was having consensual sex with his wife.
    Under subsection 90.404(2)(a), collateral crime evidence is admissible
    only “when relevant to prove a material fact in issue.” “State of mind is
    not a material fact in a sexual battery charge, nor is intent an issue.” Coler
    v. State, 
    418 So. 2d 238
    , 239 (Fla. 1982). As the Florida Supreme Court
    has explained, “in rape prosecutions, it is clear that while a general intent
    is involved in the crime, no specific intent is requisite other than that
    evidenced by the doing of the acts constituting the offense.” Askew v.
    State, 
    118 So. 2d 219
    , 222 (Fla. 1960). Whether appellant knew the
    identity of the victim he attacked was not a material fact in issue in this
    case, so the collateral crime evidence was not admissible to prove an
    absence of mistake or accident under subsection 90.404(2)(a). See Hebel
    v. State, 
    765 So. 2d 143
    , 144 (Fla. 2d DCA 2000) (in case involving
    defendant’s sexual battery of “his then spouse,” evidence of other crimes
    held inadmissible to prove the defendant’s state of mind); Killian v. State,
    
    730 So. 2d 360
    , 362 (Fla. 2d DCA 1999) (in prosecution for sexual battery
    of a child, holding that the state’s introduction of “dirty” books in the
    defendant’s possession to show his state of mind and intent “was improper
    because state of mind is not a material fact in a sexual battery case and
    intent is not an issue”); Williams v. State, 
    619 So. 2d 487
    , 493 (Fla. 1st
    DCA 1993) (holding that where the state sought to admit evidence of other
    crimes to prove “absence of mistake or accident,” such evidence was
    11
    inadmissible where “there was no material issue of fact relating to either
    of these facts”).
    Finally, the dissent underplays the impact of the collateral crime
    evidence by stating that the testimony “took up only ninety minutes” of
    witness testimony. The prosecutor emphasized the collateral crime
    evidence in closing argument to argue that appellant had the propensity
    to commit the charged crimes. For example, the prosecutor argued:
    What we’re saying is we know that Jose Reyna, when
    presented with the opportunity of a woman who is intoxicated,
    who . . . is maybe a little disoriented, when is alone with her
    away from his wife, he will take the opportunity to do
    something to her without her consent. And it’s a sexual act.
    ***
    All of the evidence points to one conclusion. There is the
    testimony of [the victim]. The defendant on the controlled call
    supports what she sa[id] happened. The testimony of [the
    Williams rule witness]. This is not some mistake. This is not
    some confusion. This is what he does.
    On the remaining issue, we hold that the trial judge did not abuse her
    discretion in allowing appellant’s prior convictions to be used for
    impeachment.
    Reversed and remanded for a new trial.
    WARNER, J., concurs.
    GERBER, J., concurs in part and dissents in part with opinion.
    GERBER, J., concurring in part and dissenting in part.
    I respectfully dissent from the majority’s holding that the trial court
    abused its discretion by admitting evidence of appellant having committed
    a sexual battery upon the Williams rule witness. My dissenting opinion
    will be presented in two sections: (1) the state properly relied upon the
    Williams rule sexual battery to prove the instant sexual battery; and (2)
    the similarities between appellant’s sexual battery of the instant victim
    and the Williams rule witness are not outweighed by the differences
    between the two crimes.
    1. The state properly relied upon the Williams rule
    12
    sexual battery to prove the instant sexual battery.
    In the second controlled phone call between appellant and the victim
    in the instant case, the victim confronted appellant for having kissed her,
    licking her chest, putting his hands down her pants, performing oral sex
    on her, and raping her. Appellant responded:
    Honey, I am so sorry. Please, I’m so sorry. I didn’t -- I didn’t
    mean to touch you. I was thinking maybe that you was [my
    wife] maybe, I don’t know. I’m so sorry. I apologize, I’m so
    sorry. Please. Please, I am so sorry. I’m trying to remember.
    (emphasis added).
    Based on appellant’s statement, the state filed its notice of its intent to
    offer Williams rule evidence pursuant to section 90.404(2)(c)1., Florida
    Statutes (2015), to show that appellant’s sexual battery of the victim was
    not an innocent mistake of thinking he was having consensual sexual
    relations with his wife. Specifically, the state alleged:
    According to [the Williams rule witness], she met the
    defendant through his wife. On the date of the sexual battery,
    [the Williams rule witness] was hanging out with the
    defendant and his wife. While at a club in downtown West
    Palm Beach, the Defendant pushed [the Williams rule witness]
    through a door. The Defendant became aggressive and ripped
    her stockings and penetrated her vagina with his fingers. This
    evidence is relevant to issues of ... motive, intent, to show
    absence of mistake, and to show the defendant’s sexual
    interest in women he meets through his wife.
    (emphasis added).
    Although the state’s Williams rule notice expressly referred to section
    90.404(2)(c)1., which provides that evidence of the defendant’s other
    sexual offenses are “admissible and may be considered for its bearing on
    any matter to which it is relevant” (emphasis added), the state went a step
    further by specifically identifying the material facts upon which the
    Williams rule evidence was relevant, that is, to prove appellant’s motive,
    intent, and absence of mistake, as permitted under the narrower section
    90.404(2)(a).
    The probative value of this Williams rule evidence was not substantially
    outweighed by the danger of unfair prejudice to appellant, based on the
    13
    non-exclusive McLean factors. The manner in which the acts were
    committed were extremely similar:
    •   Both the Williams rule witness and the instant victim were single
    adult females. The instant victim was thirty-seven years old at the
    time of the act charged. Although the Williams rule witness was
    never asked her age, other contextual clues in her testimony (years
    of work experience) suggest she was also in her thirties when the
    prior sexual battery occurred.
    •   Both the Williams rule witness and the instant victim had become
    friends with appellant’s wife and had socialized with appellant and
    his wife at their home.
    •   Both the night of the prior sexual battery and the night of the instant
    sexual battery began with the Williams rule witness and the instant
    victim drinking at the Reynas’ home.
    •   Both nights continued with the Williams rule witness and the
    instant victim going out with appellant and his wife for drinking and
    dancing at bars within the downtown West Palm Beach
    entertainment district.
    •   Both the Williams rule witness and the instant victim became very
    impaired while drinking at the downtown bars.
    •   Both the prior sexual battery and the instant sexual battery
    occurred in locations where no one else was present – the prior
    sexual battery occurred in a dark deserted alley, and the instant
    sexual battery occurred in appellant’s living room after appellant’s
    wife had gone to bed.
    •   Appellant’s first physical contact with both the Williams rule witness
    and the instant victim was kissing them on the mouth.
    •   Both the Williams rule witness and the instant victim reminded
    appellant he was married and attempted to physically resist him (the
    Williams rule witness tried to push appellant away, and the instant
    victim “swatted” at appellant), but appellant continued his sexual
    battery.
    •   Appellant physically got on top of both the Williams rule witness and
    the instant victim.
    14
    •   Appellant reached through the clothes of both the Williams rule
    witness and the instant victim to penetrate their vaginas with his
    fingers.
    The state properly relied upon the foregoing similarities to prove
    appellant’s sexual battery of the instant victim was, beyond a reasonable
    doubt, not an innocent mistake of thinking he was having consensual
    sexual relations with his wife. The foregoing similarities further proved,
    beyond a reasonable doubt, appellant’s motive and intent of committing
    sexual battery upon his wife’s very impaired friends if an opportunity arose
    when he was alone with the women long enough to commit the sexual
    battery.
    This conclusion is consistent with other cases in which our sister
    courts have admitted Williams rule evidence to prove a defendant’s modus
    operandi of taking advantage of a relationship to commit sexual battery.
    See Pitts v. State, 
    263 So. 3d 834
    , 837-39 (Fla. 1st DCA 2019) (evidence
    that defendant had years earlier penetrated a woman after she passed out
    following a night of drinking was admissible to prove the present sexual
    battery of another woman who was sleeping after a night of drinking);
    Bruce v. State, 
    44 So. 3d 1225
    , 1229 (Fla. 5th DCA 2010) (“The victim’s
    and [the Williams rule witness’s] testimony demonstrated a clear pattern
    of conduct. The women were the same age, Bruce knew both women from
    church, and he knew both were single and lived alone. Bruce first
    befriended the women by performing handyman services and
    commiserating with each about the hardship of caring for a loved one with
    disabilities. During the course of performing handyman services, he not
    only made sexual advances but fondled the breasts of each. The only
    difference was that he successfully completed the sexual battery against
    the victim, but was unable to [complete the sexual battery with the
    Williams rule witness who fought him off].”).
    2. The similarities between appellant’s sexual battery
    of the instant victim and the Williams rule witness
    are not outweighed by the differences between the two crimes.
    The majority cites five differences between appellant’s sexual battery of
    the instant victim and the Williams rule witness to justify its ultimate
    conclusions that the prior sexual battery was “only weakly probative of the
    charged crimes” and thus “the trial court abused its discretion in
    admitting the Williams rule witness’s testimony.” Maj. op. at 10. As
    discussed below, each of those five differences are either factually or legally
    mistaken or immaterial.
    15
    •   “The victim was a close friend of the Reynas who regularly slept
    over at their home; the Williams rule witness was a casual
    acquaintance who socialized occasionally with the Reynas.”
    In actuality, the Williams rule witness was more than a casual
    acquaintance. Although she had not slept over at the Reynas’ home, she
    had been to the Reynas’ home a few times and was a guest at the Reynas’
    wedding. Thus, like the instant victim, the Williams rule witness’s
    relationship was close enough that she was invited to the Reynas’ home to
    begin a night of drinking, and then accompanied them to downtown bars
    for a night of dancing and more drinking. When she became very impaired,
    and no one else was present in the dark deserted alley, appellant took
    advantage of the opportunity to commit a sexual battery upon her, just as
    he did with the instant victim, another close friend, at the Reynas’ home.
    Thus, the Williams rule evidence corroborated appellant’s motive, intent,
    and absence of mistake in committing the sexual battery upon the instant
    victim.
    •   “The charged crimes occurred on a couch in a private living
    room; the collateral act occurred on a public bench in an alley.”
    This difference is immaterial. Appellant’s motive and intent was to
    commit sexual battery upon his wife’s friends when the opportunity
    presented itself, that is, when his wife’s friends became very impaired and
    no one else was present, regardless of location. Thus, appellant took
    advantage of the dark deserted alley to commit a sexual battery upon the
    impaired Williams rule witness, and later took advantage of the impaired
    instant victim in his living room with while his wife slept in their bedroom.
    •   “The victim had a work relationship with appellant’s wife; the
    Williams rule witness had no such work relationship.”
    This difference is immaterial. As stated above, the Williams rule
    witness’s relationship was close enough that she had been to the Reynas’
    home a few times, socialized with them, and had been a guest at the
    Reynas’ wedding.
    Also immaterial is the fact that the Williams rule witness was a detective
    in a sex crimes unit. The majority argues that fact carried an additional
    risk of undue prejudice in a section 90.403 analysis, as juries often afford
    great weight to the testimony of police officers. See, e.g., Salomon v. State,
    
    267 So. 3d 25
    , 32 (Fla. 4th DCA 2019) (explaining that police officers “bring
    with their testimony an air of authority and legitimacy,” and that a jury “is
    16
    inclined to give great weight” to such testimony). However, detectives in
    sex crimes units can become sexual battery victims too, and should not
    be excluded as possible Williams rule witnesses on that basis. Here, the
    Williams rule witness’s only role was being another of appellant’s wife’s
    very impaired friends whom appellant sexually attacked when the
    opportunity presented itself, just as he did to the instant victim.
    •   “The charged crimes were three sexual batteries that occurred
    over an extended period of time, as the victim hovered between
    consciousness and sleep; the Williams rule witness was very
    much awake during the collateral act, a sudden groping of her
    genital area.”
    This difference is immaterial. The only reason why “three sexual
    batteries … occurred over an extended period of time” to the instant victim
    as she “hovered between consciousness and sleep,” is because she was so
    much more impaired than the Williams rule witness, who was able to fight
    back and get away. Cf. 
    Bruce, 44 So. 3d at 1229
    (the fact that the
    defendant successfully completed the sexual battery against the victim,
    but was only able to fondle the Williams rule witness’s breasts, was an
    insignificant difference, because the Williams rule witness was able to
    fight off the defendant before he could complete the sexual battery).
    That is why the majority’s attempt to distinguish the striking
    similarities between the instant case and Pitts v. State, 
    263 So. 3d 834
    (Fla. 1st DCA 2019), is ill-conceived. As stated above, in Pitts, our sister
    court held that Williams rule evidence from years earlier was admissible
    where in both acts, the defendant was accused of digitally penetrating a
    female victim while she was sleeping or passed out following a night of
    drinking.
    Id. at 837
    -39. Like the Williams rule notice in the instant case,
    the Pitts notice had stated this collateral crime evidence would be
    introduced “pursuant to Florida Statute 90.404(2) for purposes of proving
    a material fact in issue: specifically the requisite elements of intent
    (including absence of mistake or accident), modus operandi.”
    Id. at 837
    (internal brackets and quotation marks omitted).
    Despite those striking similarities to the instant case, the majority
    attempts to distinguish Pitts as follows:
    Here, the charged crimes were similar to that in Pitts, but the
    collateral evidence involved a different criminal act. There is
    no clear pattern of conduct between the charged crimes and
    the collateral act. Groping a woman on a bench in a public
    place is only minimally probative of the charged crime—
    17
    repeated sexual batteries against a passed-out woman on a
    couch in a residential living room.
    Maj. op. at 9 (emphasis added). The majority’s reasoning is unfortunately
    misguided. The only reason why the Williams rule witness was not also
    the victim of “repeated sexual batteries” is because she was less impaired
    than the instant victim, and thus more able to fight back and get away.
    Thus, the majority ultimately understates the facts by claiming appellant
    was merely “groping a woman on a bench in a public place.” In actuality,
    appellant was taking advantage of being with the impaired Williams rule
    witness in a dark deserted alley so he could attempt to rape her, just as
    he was later able to rape the more severely impaired instant victim in his
    living room when no one else was present.
    •   “There was a gap of over four years between the two incidents.”
    I recognize the McLean court identified “the closeness in time of the
    prior acts to the act charged” as one of the factors which a trial court
    should evaluate when determining whether the probative value of previous
    offenses is substantially outweighed by the danger of unfair 
    prejudice. 934 So. 2d at 1262
    . However, I do not consider “a gap of over four years
    between the two incidents” to be material in this case, for three reasons.
    First, as mentioned above, in Pitts, our sister court held that evidence
    that defendant had “years earlier” penetrated a woman after she passed
    out following a night of drinking was admissible to prove the present
    sexual battery of another woman who was sleeping after a night of
    
    drinking. 263 So. 3d at 837
    .
    Second, permitting the state to have presented Williams rule evidence
    from “years earlier” is consistent with section 90.610(1), Florida Statutes
    (2015), which permits a witness’s credibility to be impeached by prior
    convictions for felonies and crimes of dishonesty going back many years,
    if appropriate. See Peoples v. State, 
    576 So. 2d 783
    , 789 (Fla. 5th DCA
    1991) (noting that, although section 90.610(1)(a), “precludes evidence in a
    civil trial of a conviction so remote in time as to have no bearing on the
    present character of a witness,” section 90.610(1) does not otherwise
    prohibit such evidence in a criminal trial). As our sister court stated in
    Nehring v. State, 
    225 So. 3d 916
    (Fla. 1st DCA 2017):
    The only test for the admissibility of a prior conviction is
    whether the conviction has any bearing on the witness’s
    credibility.  The remoteness of the conviction will most
    certainly be a factor in determining whether it bears on the
    18
    witness’s credibility, but there is no bright-line rule for when a
    conviction becomes too remote to bear on the witness’s
    credibility.  The determination is within the trial court’s
    discretion, and a trial court abuses its discretion only when its
    decision is arbitrary or fanciful.
    Id. at 918
    (emphasis added; internal citation omitted). Given that a trial
    court’s section 90.404(2) determination has similar considerations to a
    section 90.610(1) determination, no reason exists here why “a gap of over
    four years between the two incidents” should be material in this case.
    Third, and most importantly, the method by which appellant committed
    the sexual batteries against the Williams rule witness and the instant
    victim was partially based on factors beyond appellant’s control and
    partially based on opportunity, the combination of which may have
    required years to develop before appellant could offend again. Appellant’s
    modus operandi required four events to occur: (1) his wife would have to
    become friends with another woman, (2) that relationship would have to
    develop to the point when the woman would socialize often with the
    Reynas, (3) an occasion would have to occur when the woman would drink
    to the point of impairment, and (4) an opportunity would have to occur
    when the woman was with appellant in a location where no one else would
    be present for several minutes, if not more, so appellant could take
    advantage of the woman. Given that this combination of factors may have
    required years to occur, the fact that at least two incidents occurred just
    over four years apart should not be surprising. Cf. LaValley v. State, 
    30 So. 3d 513
    , 515-16 (Fla. 5th DCA 2009) (trial court did not abuse its
    discretion by allowing Williams rule evidence of another familial
    molestation occurring eleven years earlier; “[A]lthough the molestations
    occurred years apart, that appears more to be a function of opportunity
    than anything else.”).
    Conclusion
    Based on the foregoing, I respectfully dissent from the majority’s
    holding that the trial court abused its discretion by admitting evidence of
    appellant having committed a sexual battery upon the Williams rule
    witness. See Canakaris v. Canakaris, 
    382 So. 2d 1197
    , 1203 (Fla. 1980)
    (“Discretion … is abused when the judicial action is arbitrary, fanciful, or
    unreasonable, which is another way of saying that discretion is abused
    only where no reasonable [person] would take the view adopted by the trial
    court.”) (emphasis added).
    19
    I also note the trial court read the cautionary Williams rule instruction,
    that is, Florida Standard Jury Instruction (Criminal) 2.4, to the jury before
    the Williams rule witness’s testimony. Further, this evidence did not
    become a feature of the lengthy trial or overwhelm evidence of the charged
    crime. The Williams rule witness and her mother were the last two out of
    ten state witnesses to testify, and their testimony took up only ninety
    minutes out of three full days’ of witness testimony in the trial as a whole.
    During the state’s one hour closing argument, the state discussed the
    Williams rule evidence for only three to four minutes. See Stubbs v. State,
    
    275 So. 3d 631
    , 636 (Fla. 4th DCA 2019) (“On this record, the collateral
    act evidence did not become a feature of the trial or overwhelm the
    evidence of the charged crime.”).
    Lastly, and without further discussion, I concur with the majority’s
    holding that the trial court did not abuse its discretion in allowing
    appellant’s prior convictions to be used for impeachment.
    *        *         *
    Not final until disposition of timely filed motion for rehearing.
    20