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Beard v. State

Florida Court of Appeals, Fourth District

September 18, 2019


         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dennis D. Bailey, Judge; L.T. Case No. 10-22473CF10A.

          John E. Bergendahl of Law Offices of John E. Bergendahl, Miami, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.


         The defendant below appeals a conviction of armed robbery in possession of a firearm, based on multiple trial court errors. We find no error on all issues raised, excepting whether the trial court erred in admitting into evidence photographs of an individual who is purportedly the defendant, holding a handgun. While the trial court committed error, as discussed below, we find that any such error was harmless.

         The victim met the defendant and another person in a CVS parking lot, expecting to pay cash in exchange for used electronic devices. The transaction took place at the trunk of a vehicle, where the purported devices were located. Just as the trunk opened, the defendant pulled out a gun and put it to the victim's neck, told him not to move, not to say anything, and took the cash. A police car entered the CVS parking lot and the defendant fled the scene with his accomplice. At trial, the victim described the gun as a black handgun which felt metallic against his neck.

         The State alleged that the defendant carried a firearm or other deadly weapon during the course of the robbery, and sought to introduce photographs retrieved from the defendant's phone which depicted him holding a black handgun. However, the defendant stated that his partner pulled a phone out, stuck it in the victim's back, and instructed the victim not to move. The defendant sought to exclude the two photographs retrieved from his phone, asserting that there was no evidence to link the firearm in the photo to the one supposedly used to commit the robbery. The defendant further stated that because the authorities did not recover a gun during their investigation, the photographs would be irrelevant and highly prejudicial.

         Over objection, the trial court let the two photographs into evidence, and the victim testified that the individual in the photos was the defendant, further stating that the gun was similar to the one used in the robbery. The defendant denied that he was the individual depicted holding the gun in the photographs and testified that they were pictures of his identical twin brother that the defendant had taken with the telephone. During trial, the identical twin brother came into the courtroom and was displayed for the jury.

         "A trial court's ruling on the admissibility of evidence is subject to an abuse of discretion standard of review, but the court's discretion is limited by the rules of evidence and the applicable case law." Horwitz v. State, 189 So.3d 800, 802 (Fla. 4th DCA 2015).

         This Court has previously outlined the rules regarding the admissibility of evidence. See O'Connor v. State, 835 So.2d 1226, 1230 (Fla. 4th DCA 2003).

Evidence must be relevant in order to be admissible. See § 90.402, Fla. Stat. [(2017)]. Relevant evidence is defined as evidence "tending to prove or disprove a material fact." § 90.401, Fla. Stat. [(2017)]. While all admissible evidence must be relevant, not all relevant evidence is admissible; section 90.403 mandates that "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice." § 90.403, Fla. Stat. [(2017)].

Id. "Generally, any facts relevant to prove a fact in issue are admissible unless admission is precluded by a specific rule." Council v. State, 691 So.2d 1192, 1194 (Fla. 4th DCA 1997).

         "It is well-settled that in order for evidence of a firearm to be admissible as relevant in a criminal trial, the state must show a sufficient link between the weapon and the crime." Metayer v. State, 89 So.3d 1003, 1007 (Fla. 4th DCA 2012). The Fifth District has described what is, and is not, necessary to show this "sufficient link." See Gartner v. State, 118 So.3d 273, 276 (Fla. 5th DCA 2013) (stating that the trial court did not abuse its discretion in allowing evidence linking a seized item to a crime, even though the evidence was inconclusive, because ...

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