Criminal Justice and Trial Division

STATE OF FLORIDA,                                                          Case No. XX-CF-XXXXX

Plaintiff,                                                                      Division XX








COMES NOW, Defendant, XXXXX XXXXXXX, by and through the undersigned attorney, and files this Memorandum Against the State’s Notice of Intent to Rely On Williams Rule Evidence and asks this Court to disallow the State from presenting any of the evidence referenced in its Notice. As grounds therefore, Defendant argues:

In its Notice, the State has alleged that while Mr. XXXXXX was married to XXXXXX XXXXXXX, there were two occasions where she blacked out and could not recall the events of the night. After their separation in February 2019, Ms. XXXXXXX claims to have not experienced any subsequent black outs. Upon return to the marital home, after Mr. XXXXXX had vacated the home, Ms. XXXXXXX claims to have found a thumb drive containing images of herself of a sexual nature. Some of the images were consensual while she has no recollection of performing the acts depicted in other images.

Prior to the allegations charged in this matter, Mr. XXXXXX began dating Lyndsay XXXXXX in 2003. In 2005, Ms. XXXXXX claims to have found a thumb drive inside of the home. She viewed the thumb drive and it, allegedly, likewise contained images of her of a sexual nature. She, like Ms. XXXXXXX, does not recall performing the acts depicted. Ms. XXXXXX no longer possesses this thumb drive.

The State, in its Notice, argues that testimony from Ms. XXXXXX regarding the images that she allegedly saw is admissible as it is “relevant and inseparable from the act in issue.” The State further concludes that “[t]he evidence is extremely similar and the two relationships occurred within only a couple years of each other. As such, the evidence of X.X. finding a thumb drive with photographs of X.X. in positions that are sexual in nature, with foreign objects inserted into her body without consent, with writing on her body without consent, and under circumstances which lead her to believe she was unconscious at the time is extremely relevant and is not prejudicial. This evidence will be used to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident on the part of the Defendant.”

The evidence is not admissible under either theory.


            As recent as 2021, the Fourth District Court of Appeal in Jones v. State, 4D19-3691 (Fla. 4th DCA 2021), laid out the predicate that the State must prove before allowing collateral evidence of other crimes. It stated that:

Relevant evidence is evidence tending to prove or disprove a material fact. § 90.401, Fla. Stat. (2019). All relevant evidence is admissible unless precluded by a specific rule of exclusion. § 90.402, Fla. Stat. (2019). Even if evidence is relevant, it is inadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2019).

Similar fact evidence of other crimes or wrongs, commonly known as Williams rule evidence, “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. (2019). “Before allowing Williams rule evidence to be presented to the jury, the trial court must find that the State has proved that the defendant committed the collateral acts by clear and convincing evidence.” McLean v. State, 934 So. 2d 1248, 1256 (Fla. 2006).

“When the purported relevancy of past crimes is to identify the perpetrator of the crime being tried, we have required a close similarity of facts, a unique or ‘fingerprint’ type of information, for the evidence to be relevant.” State v. Savino, 567 So. 2d 892, 894 (Fla. 1990). “Substantial similarity is also required when the collateral crime evidence is sought to be admitted for the specific purpose of establishing absence of mistake or accident.” McLean, 934 So. 2d at 1255 (brackets and internal quotation marks omitted). Jones v. State, 4D19-3691 (Fla. 4th DCA 2021)

As the State indicated in its Notice, under Roberson v. State, 829 So.2d 901 (Fla. 2002), the State must prove and the Court must find, by clear and convincing evidence, that (1) the defendant committed the prior crime, wrong, or act, (2) the prior crime, wrong, or act meets the similarity requirements necessary to be relevant, (3) the prior crime, wrong, or act is not too remote so as to diminish its relevance, and (4) the unfair prejudicial effect of the prior crime, wrong, or act does not substantially outweighs its probative value.


            Any testimony of Ms. XXXXXX’s observance of photographs is inadmissible because the State will be unable to prove that the acts occurred by clear and convincing evidence, the evidence fails to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, the evidence is too remote to have any relevance if it ever had any to begin with, the evidence is only offered to prove propensity, and, as such, the probative value of such evidence is clearly outweighed by the unfair prejudice to Mr. XXXXXX of said evidence.

As an initial matter, the State has failed to indicate for what purpose this evidence is offered. While they have faithfully recited each of the possible basis for relevance offered by the statute, they fail to indicate for which they are offering the evidence. The failure to do so is fatal. Steward v. State, 619 So.2d 394 (Fla. 1st DCA 1993) (Where the State urged that collateral crime evidence relating to other sexual offenses was admissible to prove identity, absence of mistake, opportunity, intent, and knowledge, it was error to admit the evidence when the State failed to demonstrate an issue in the case as to any of these items.”

Failure to Prove that Acts Occurred by Clear and Convincing Evidence

            The allegations made by Ms. XXXXXX have only now surfaced against Mr. XXXXXX since Ms. XXXXXXX made her allegations. Ms. XXXXXX and Mr. XXXXXX share two children, approximate ages of 11 and 15-years-old. Since the allegations, Ms. XXXXXX has re-opened her divorce case against Mr. XXXXXX and is asking the court to award her sole parental responsibility, to adjust child support according, and to only allow Mr. XXXXXX supervised visitation with his children should he be released from jail.

At first impression, this may seem normal given the allegations against Mr. XXXXXX by Ms. XXXXXXX. However, it is important to note that Ms. XXXXXX claims to have found the thumb drive of her alleged sexual abuse in 2005. As such, by the time of the divorce in 2013, Ms. XXXXXX should have been well aware of these allegations and yet there wasn’t a single mention of the allegations throughout the entirety of the divorce proceedings. The Court awarded and she agreed to shared custody and responsibility for their then 4 and 8-year-old children. Had these allegations been true and/or supportable, it is likely that these allegations would have been used as leverage in the divorce. They were not. Likewise, it is important to note that Ms. XXXXXX stayed married to a man for eight additional years after he allegedly sexually abused her. This certainly undercuts her credibility and should prevent the Court from finding that they occurred by the required standard of clear and convincing evidence.

Again, Ms. XXXXXX claims to have found the images on a thumb drive in 2005. The first digital camera advanced enough to be used by professionals was made in 1991 by Kodak. ( viewed on August 25, 2021) It wasn’t until 1995 that they became prevalent in the marketplace. It wasn’t until 2003 that camera phones became dominant in the marketplace. ( viewed on August 25, 2021) Even more specific to this case and these allegations, thumb drives were not commercial until 2002. ( viewed on August 25, 2021). It is only in 2002 that laptops began to carry USB ports for such use.

So, how is this history relevant? There is no testimony that Mr. XXXXXX was at the cutting edge of technology between 2003 and 2005. There will not be any evidence as to when the allegedly viewed images were taken. It is highly doubtful that Mr. XXXXXX possessed the technology or the know-how to (1) take digital images of his wife and (2) to transfer those images to a thumb drive in 2005 or earlier. Just as Ms. XXXXXX’s lack of mention of the allegations during her divorce undercuts her credibility, so does the time frame of the allegation undercut her credibility as the technology was in its infancy at that time.

As such, the Court should disallow this evidence because of a failure by the State to prove that they occurred by clear and convincing evidence.

The Evidence is Irrelevant to Prove Anything Other Than Propensity

            Even if the Court believes by clear and convincing evidence that the acts occurred between 2003 and 2005, they are irrelevant to the current charges of sexual battery and video voyeurism against Mr. XXXXXX. In no way does the evidence show any motive of Mr. XXXXXX to commit acts against Ms. XXXXXXX, an opportunity to commit crimes against Ms. XXXXXXX, an intent to commit a crime against Ms. XXXXXXX, preparation to commit a crime against Ms. XXXXXXX, any relevant knowledge element of crimes against Ms. XXXXXXX, the identity of Mr. XXXXXX as the perpetrator of the alleged crimes against Ms. XXXXXXX, or the absence of mistake or accident in the commission of the alleged crimes against Ms. XXXXXXX.

As to motive, it should be clear that evidence of a prior allegation of abuse against Ms. XXXXXX in no way proves any motivation to commit a crime against Ms. XXXXXXX. The undersigned cannot even hypothesize any manner in which it would prove a motive. For an example where a prior crime was relevant to prove motive, in Torres v. State, 834 So.2d 342 (Fla. 3d DCA 2003), evidence of a prior threat to kill the victim of a murder was relevant to show motive and intent. In Jorgenson v. State, 714 So. 2d 423 (Fla. 1998), evidence that the victim had stolen from the defendant in the course of selling drugs for defendant was relevant to prove his motive to kill the victim. In this case, we have no such connection between the alleged crimes. Additionally, they did not occur within a few years of each other as alleged in the State’s Notice as the alleged acts occurred at least 14 years apart.

As to opportunity, it should equally be clear, just on the surface alone, that the prior alleged crimes in no way prove that Mr. XXXXXX had the opportunity to commit crimes against Ms. XXXXXXX. Opportunity does not mean that a defendant has taken advantage of similar situations. This only proves propensity. Thomas v. State, 599 So. 2d 158 (Fla. 1st DCA 1992) (“Even if it may be fair to say that the Georgia episode demonstrates that appellant had previously taken advantage of a similar opportunity to commit a sexual offense on a young girl, the only reasonably permissible inference to be drawn from that fact is the defendant’s propensity to commit an offense, an improper purpose under section 90.404(2)(a)).

Williams Rule evidence has been admissible to prove opportunity when the defendant claimed that the victim was never alone. This opened the door for the State to prove another instance of sexual activity against a sibling where the child was left alone to prove that there were opportunities where the children were left alone. Beasley v. State, 503 So.2d 1347 (Fla. 5th DCA 1987). In this case, Ms. XXXXXXX will likely testify that Mr. XXXXXX was the only adult male in the house that could have committed the offense. As such, opportunity will not be an issue that needs to be proved by Williams Rule evidence.

With regards to intent, it is only relevant when it is a material fact in the case or an essential element of the charge. Likewise, intent does not encompass proof of the state of mind of the defendant. For example, in Coler v. State, 418 So. 2d 238 (Fla. 1982), the Court held that it was reversible error to admit Williams Rule evidence because state of mind is not a material fact in a sexual battery charge, nor is intent an issue. The state of mind that is relevant, is the alleged victim’s state of mind. Whether Ms. XXXXXXX consented to the acts allegedly performed by Mr. XXXXXX is relevant, not whether Mr. XXXXXX intended to commit the acts.

Lastly, the remaining points of relevance under section 90.404(2) can be summarized as proof of a modus operandi. However, even with modus operandi evidence, it must be relevant to prove some material issue or fact in the case. As such, even if the method of operation is so similar and unique as to act as a signature or fingerprint, it still must be relevant to something other than propensity. Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974).

Courts tend to get hung up on whether the alleged acts were sufficiently similar without conducting the relevancy analysis. If the evidence does not prove anything in the instant case, even if the conduct identical and unique, it still is not admissible. For example, evidence that a defendant had worn gloves in a prior sexual battery and in the current sexual battery was not relevant to prove plan. Williams v. State, 592 So. 2d 350 (Fla. 3d DCA 1992). In the instant case, the similarity in the sexual acts and the alleged fact that neither remembers the events occurring, does nothing to prove any relevant issue with regards to the current charges against Mr. XXXXXX.

The Acts Are Not in Any Manner Inextricably Intertwined

            Evidence is inextricably intertwined where it is impossible to give a complete or intelligent account of the crime charged without reference to the other crime. Nickels v. State, 106 So. 479 (1925). The State correctly cites the legal standard against which to judge evidence sought to be entered under the Fla. Stat. 90.402 as “inextricably intertwined.” In Dorsett v. State, 944 So. 2d 1207 (Fla. 3d DCA 2006), the Court listed four factors to be considered: evidence is inextricably intertwined so long as that evidence is necessary to (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).

This type of evidence should be admitted when it is impossible to give a complete or intelligent account of the crime charged without reference to the other crime. Nickels v. State, 106 So.479, 489 (1925). When there is a clear break between the prior conduct and the charged conduct or it is not necessary to describe the charged conduct by describing the prior conduct, evidence of the prior conduct is not admissible on this theory. Wrightman v. State, 982 So.2d 74 (Fla. 2d DCA 2008) (“The assertion that Wightman committed the similar acts of molestation multiple times on different undetermined dates was not necessary for an understanding that the two discrete acts charged in the information took place at any time.”)

With regards to Mr. XXXXXX’s case, the alleged acts are separated by, at a minimum, 14 years. There is no theory of prosecution where it is necessary to relay the allegations against Ms. XXXXXX in order to adequately explain the allegations against Ms. XXXXXXX. Ms. XXXXXX did contact law enforcement after learning of Ms. XXXXXXX’s allegation; so, she is a part of this investigation in a small manner. However, there is nothing about events that occurred prior to 2005 that are necessary to explain events that occurred in 2018 and 2019. It would only be admissible if it were absolutely necessary to adequately describe the alleged acts against Ms. XXXXXX. Griffin v. State, 639 So.2d 966 (Fla. 1994). This is not the case here.

As such, under either theory of admissibility, any evidence of alleged acts by Mr. XXXXXX against Ms. XXXXXX are inadmissible and the State should be forbidden from eliciting any testimony regarding those allegations.


            Lastly, even if this Court were to decide that the evidence of acts against Ms. XXXXXX are either inextricably intertwined with the allegations against Ms. XXXXXXX or somehow relevant Williams Rule evidence under Fla. Stat. 90.404(2), the evidence should nonetheless be excluded under Fla. Stat. 90.403.

Fla. Stat. 90.403 states, in relevant part, that “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.” Under this provision, the Court must weigh the logical strength of the proffered evidence to prove a material fact or issue against the other facts in the record and balance it against the strength of the reason for exclusion. State v. Williams, 992 So.2d 330 (Fla. 3d DCA 2008). In undertaking this balancing, the trial judge may consider the need for the particular evidence, the availability of alternative means of proof, and the likelihood that the jury will follow a limiting instruction by the Court. Id.

In the current prosecution, any alleged acts will only demonstrate an alleged propensity by Mr. XXXXXX to commit sex crimes. The alleged acts do not tend to prove any element of either sexual battery or video voyeurism. The alleged acts do nothing to rebut any possible defense that Mr. XXXXXX may present. It will enflame the passions of the jurors to convict. Because of the highly unfair and prejudicial nature of the allegations, a jury is highly unlikely to follow any limiting instruction the Court may give. For example, if the Court were to instruct the jury that the evidence is only to be considered for the opportunity of Mr. XXXXXX to commit the alleged crime, it is unlikely that a jury will only use such evidence only for that purpose.

In sum, any relevance of such evidence is weak with regards to proving the crimes alleged against Ms. XXXXXXX where the danger of unfair prejudice is strong. Even if relevant, there is no need for this evidence to be presented as Ms. XXXXXXX and the State’s law enforcement witnesses should be able to make a prima facie case against Mr. XXXXXX without any need for Ms. XXXXXX’s testimony. The admission of such evidence would further deprive Mr. XXXXXX of an impartial jury that would only consider the allegations and State’s evidence with regards to Ms. XXXXXXX. To believe otherwise is to go against everything we know about human nature.

WHEREFORE, Defendant respectfully requests this Court to disallow the State from introducing any evidence of any alleged criminal acts against Ms. XXXXXX.

I HEREBY CERTIFY that a true and accurate copy of this Memorandum was provided to the State via e-service on this 26th day of August 2021.





   /s/ Adam L. Bantner, II__________

By: Adam L. Bantner, II

Fla. Bar No. 0030038

1228 E. 7th Ave., Ste. 200

Tampa, FL 33605

813.397.3965 (o) / 813.416.7965 (m)

Attorneys for Defendant