final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No.
E. Bergendahl of Law Offices of John E. Bergendahl, Miami,
Moody, Attorney General, Tallahassee, and Luke R. Napodano,
Assistant Attorney General, West Palm Beach, for appellee.
JANET, ASSOCIATE JUDGE.
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
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.
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.
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.
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).
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).
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,