State v. Hubbs

377 So.3d 1162

STATE of Florida, Appellant,

v.Christopher Russell HUBBS, Appellee.

No. 4D2022-3048

District Court of Appeal of Florida, Fourth District.

[December 6, 2023]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Kirk Charles Volker, Judge; L.T, Case No. 50-2020-CF-001600A.

Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellant.

Greg Rosenfeld and Jesse Woodson Isom of the Law Offices of Greg Rosenfeld, PA., West Palm Beach, and Joshua LeRoy of LeRoy Law, P.A., West Palm Beach, for appellee.

Conner, J.

The State appeals the portion of a nonfinal order limiting the use of text messages which the State contends are relevant and necessary to prove the defendant possessed depictions of sexual performance by a child.¹ We agree with the State’s arguments that the trial court did not properly consider the relevancy of some of the text messages, which resulted in the trial court improperly excluding those messages as unfairly prejudicial or confusing. Thus, we reverse the trial court’s order insofar as it addresses the admissibility of the text messages.

This opinion will generally address all the messages excluded by the trial court. However, for the reasons explained below, we reverse in part and remand the case for further consideration by the trial court.

Background

Following the arrest of another suspect, law enforcement found a series of text messages between the defendant and the other suspect on the other suspect’s cell phone. In the messages, the defendant and the other suspect discussed meeting in person so the defendant could engage in sexual activity with a child to whom the other suspect had access. The other suspect sent three images of a small male child in a bathtub. The defendant acknowledged receipt of the images. The defendant also alluded to other images which he had received from the other suspect. When confronted with the series of text messages by law enforcement, the defendant admitted he had initiated and responded to messages but denied that he was going to meet the other suspect in person.

The defendant was charged with two counts of possession of a depiction of sexual performance by a child in violation of section 827.071(5)(a), Florida Statutes (2019), and one count of soliciting a child for unlawful sexual conduct using a computer in violation of section 847.0135(3)(b), Florida Statutes (2019).

After the trial court severed the two possession counts from the solicitation count, the defendant moved in limine to restrict the State’s evidence on the two possession counts. He argued, among other things, the approximately thirty-seven pages of text messages between him and the other suspect were irrelevant and unfairly prejudicial, and inadmissible pursuant to sections 90.402 and 90.403, Florida Statutes (2023).

At the hearing on the motion, the defendant argued the State should be permitted to introduce only the messages transmitting the images, as the other messages were either irrelevant or, if relevant, the probative value was outweighed by the danger of unfair prejudice, confusion of issues, and misleading the jury. The defendant pointed out the messages spanned several weeks and discussed "all different types of stuff," including sexual fantasies, and allowing the jury to consider them would be tantamount to "criminalizing gross thoughts."

The State countered that the messages were all relevant and should be admitted for the two possession counts to establish the full context of the reasons why the photos were sent and viewed. Regarding the burden of proof, the State argued:

I have to show that … he knowingly possessed, controlled, or viewed. And so his statements about a boy, about the boy specifically, what they were going to do with the boy, and then whether or not that boy was available, and then asking … for photographs of that boy, and then commenting on those photographs, all show that the Defendant intentionally viewed the images, that the Defendant was aware -- it shows his knowledge, it shows his control over the images. And those images were intentionally viewed.

And so it’s not separable. Even if Your Honor were to limit the ways in which the State can argue it, … that’s all relevant evidence to a material fact in the case, which is that the Defendant … was able to intentionally view, control, or have that child pornography.

The State further argued the defendant cannot "provide a mischaracterization that this was like some kind of innocuous bombardment by some guy that just sent him child porn, because that’s false[,]" and the ongoing conversation would establish the defendant was trying to get "lewd, images of a child" and then viewed them.

The defendant offered to stipulate to his receipt of the photos, but stated he would contest whether those images constituted child pornography.

The trial court found it was possible to "really limit the number of these text messages that only relate to him asking [the other suspect] to send him the pictures of [child] … without all of these other text messages that clearly would be prejudicial …." The trial court found that a small portion of the messages would be enough for the State to prove the elements of possession of a depiction of sexual performance by a child, and allowing all the messages was unnecessary and unfairly prejudicial.

The trial court entered an order granting in part and denying in part the motion in limine, finding most of the messages were irrelevant and unfairly prejudicial. The trial court excluded all messages except for the eight messages discussed further below.

The State how appeals a portion of the nonfinal order.

Appellate Analysis

[1, 2] "The standard of review for the admissibility of evidence is abuse of discretion, limited by the rules of evidence." Carlisle v. State, 137 So. 3d 479, 484 (Fla. 4th DCA 2014). "We apply ah abuse of discretion standard to a trial court’s application of the unfair prejudice test of section 90.403, Florida Statutes (2019)." Smiley v. State, 295 So. 3d 156, 168 (Fla. 2020).

The State argues the trial court abused its discretion in excluding most of the conversation between the defendant and the other suspect because the excluded portions were relevant and inextricably intertwined with the possession of the photos and established the context and events leading the charges. The State further argues the jury would have a distorted and incomplete picture of the circumstances of the charges without the excluded messages.

The defendant counters that the excluded messages do not tend to prove any material fact and are not inextricably intertwined, and therefore are not admissible. The defendant also argues that, even if the excluded messages are relevant and inextricably intertwined, the trial court properly weighed the probative value of the excluded messages against the danger of unfair prejudice or confusion in excluding most of the messages.

We first address the relevancy issue. Next, we address the issue of whether the probative value of the excluded messages is outweighed by unfair prejudice or confusion.

Issue I: Were the Excluded Messages Relevant?

"Relevant evidence is evidence tending to prove or disprove a material fact." § 90.401, Fla. Stat. (2023).

[3] The entire series of text messages which the State sought to use at trial contain statements by both the defendant and the other suspect. Many of the text messages refer to sexual fantasies both men have. Some messages could yield an inference to a prior crime.

[4, 5] Evidence of bad acts or other crimes which are inseparable from or inextricably intertwined with the crimes charged is admissible as relevant evidence because "it is necessary to admit the evidence to adequately describe the deed." Kane v. State, 975 So. 2d 1277, 1281 (Fla. 4th DCA 2008) (quoting Coolen v. State, 696 So. 2d 738, 742-43 (Fla. 1997)), We have explained that "[e]vidence is inextricably intertwined if the evidence is necessary tor (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose[;] or (4) adequately describe the events leading up to the charged crime(s)." McGee v. State, 19 So. 3d 1074, 1078 (Fla. 4th DCA 2009) (citation omitted). When determining whether an act is inextricably intertwined, the "question is not whether evidence … is helpful to understand the entire story and relationship between the defendant and the victim. Rather the question, is whether, such evidence is necessary to accomplish any of the four objectives described above." Ritz v. State, 101 So. 3d 939, 943 (Fla. 4th DCA 2012).

The defendant is charged with two counts of violating section 827.071, Florida Statutes (2019), which provides: "It is unlawful for any person to knowingly possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child." § 827.071(5)(a), Fla. Stat. (2019). The definition of "sexual conduct" includes "actual lewd exhibition of the genitals." § 827.071(1),(h), Fla. Stat. (2019). Thus, the State will be required to prove three elements at trial: (1) the defendant knew he possessed, controlled, or viewed the two photographs, (2) the photographs included "actual lewd exhibition of the genitals" by a child, and (3) the defendant knew the photographs included "actual lewd exhibition of the genitals" by a child. See § 827.071(5)(a), Fla. Stat. (2019); see also Fla. Std. Jury Instr. (Crim.) 16.11.

To prove an "actual lewd exhibition of the genitals" by a child, the State will be required to prove the defendant knew the photographs of the child were "lewd" in nature. See § 827.071(1)(h), (5)(a), Fla. Stat. (2019). The Second District has specifically held...