ANTHAWN REGAN, JR.

v.

THE STATE OF FLORIDA

Third District Court of Appeal State of Florida

Opinion filed October 30, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1042 Lower Tribunal No. F19-14993 ________________

Anthawn Ragan, Jr., Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.

Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Katryna Santa Cruz, Assistant Attorney General, for appellee.

Before EMAS, LINDSEY and MILLER, JJ.

EMAS, J.

2

I.

INTRODUCTION

Anthawn Ragan, Jr. appeals his judgment and sentence following a jury trial in which he was found guilty of attempted felony murder upon Kevin Burke with a firearm or deadly weapon (Count¹) and attempted premeditated murder upon Kevin Burke with a deadly weapon (Count²).1

However, the jury determined by its verdict that, as to each count, Ragan did “personally carry, display, use, threaten to use, [or] attempt to use, a firearm,” thereby reclassifying each offense from a first-degree felony to a life felony. § 775.087(1)(a), Fla. Stat. (2013) (providing generally for reclassification of a first-degree felony to a life felony if “during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm . . . . ”).

In addition, the jury determined by its verdict that, as to each count, Ragan did “personally discharge a firearm” resulting in “death or great bodily harm” to the victim, thus requiring imposition of a twenty-five-year mandatory minimum under the 10/20/Life statute. See § 775.087(2)(a)3., Fla. Stat. (2013) (requiring imposition of a minimum mandatory sentence of twentyfive years where “during the course of the commission of the felony such person discharged a ‘firearm’ . . . and, as the result of the discharge, death or great bodily harm was inflicted upon any person . . . .”).

As to each count, the trial court imposed concurrent sentences of 37.5 years, with a twenty-five-year mandatory minimum.

2 The “Williams Rule” derives its name from Williams v. State, 110 So. 2d 654 (Fla. 1959), and is codified at section 90.404(2)(a), Florida Statutes (2023). The Williams Rule (sometimes referred to as the “collateral crimes” rule) permits introduction of similar evidence of other crimes, wrongs, or acts when relevant to prove a material fact in issue.

II.

FACTS AND PROCEDURAL HISTORY

On November⁷, 2013, Kevin Burke, the victim, bicycled to a friend’s house where he drank alcohol and ingested cocaine. At about²:00 a.m., Burke left on his bicycle, intending to go home, when a vehicle slowly passed him and stopped. The passenger of the vehicle got out of the car and said, “Where’s the money at?” Burke saw the perpetrator’s arm rising and tried to flee on his bicycle. Several shots were fired, one hitting Burke in the arm, causing him to fall to the ground. The perpetrator walked toward Burke, but

3 Blockburger v. United States, 284 U.S. 299 (1932).

4 Section 90.404(2)(a), Florida Statutes (2023), 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.

Section 90.404(2)(d)1., Florida Statutes (2023), provides:

When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a), paragraph (b), or

(emphasis added). Over defense objection, the trial court admitted the Williams Rule evidence, finding it relevant to the “limited purpose of establishing the identity of who may have committed the crimes charged.” The parties presented opening statements, during which the State made no mention of the November¹ and November 22 shootings that were committed with the same firearm used by Ragan on November 7. Following opening statements, the State called twelve witnesses to testify, including the victim and his wife. Five witnesses testified about the collateral crimes: Commander Mike Gaudio (investigator for November¹, murder of Luis

paragraph (c), no fewer than¹⁰ days before trial, the state shall furnish to the defendant or to the defendant&#x²⁷;s counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used for impeachment or on rebuttal.

The following day of trial, during the testimony of Smith-Young, an eyewitness to the November 22 armed robbery and murder of Hai Vu, the trial court instructed the jury: Ladies and gentlemen, before we go any further, let me remind you of the instruction I gave you a little bit earlier, actually, at the end of the day yesterday. The evidence that you have just observed concerning other crimes[,] wrong or acts allegedly committed by the Defendant will be considered by you for the limited purpose of proving identity, and you should consider it only as it relates to that issue. However, the Defendant is not on

At the conclusion of the State’s case, Ragan moved for a mistrial based on the purported erroneous introduction of the Williams Rule evidence. The trial court denied the motion. The parties presented closing arguments, during which the State addressed the collateral crime testimony and evidence. The State cited the shell casings as corroborating evidence of Burke’s identification of Ragan as the assailant who shot and attempted to rob him. The State also relied on surveillance video from both collateral crimes and still photos taken from those videos to further connect Ragan to the use of the same firearm in all three crimes, and to prove his identity as the perpetrator of the crimes committed upon Kevin Burke. During the defense’s closing argument, defense counsel clarified that Ragan was not on trial for the two collateral crimes and that evidence from those crimes was intended for a “very limited purpose.” Defense counsel later pointed out that the State “lean[ed] so heavily” on evidence from the other two crimes because, without such evidence, there is reasonable doubt. On rebuttal, the State briefly readdressed the purpose for introducing the collateral crimes evidence: if Ragan possessed and shot this particular firearm during the November¹ crime, and Ragan possessed and shot this particular firearm during the November 22 crime, this independent evidence

The jury found Ragan guilty on both counts and the trial court sentenced him to 37.5 years in prison on each count, each with a twentyfive-year mandatory minimum. The sentences for each count were ordered to run concurrently. This appeal followed.

III.

STANDARDS OF REVIEW

The trial court has broad discretion in determining not only the relevance of evidence, but also whether its “probative value is substantially

IV.

ANALYSIS AND DISCUSSION: Ragan raises two arguments on appeal: (1) the trial court committed reversible error in permitting the State to introduce evidence that the firearm used by Ragan in the instant case was allegedly used by Ragan to commit two other homicides because “[t]he quantity and quality of the collateral crimes evidence overwhelmed the evidence of the crimes charged in this case and impermissibly became a feature of the case”; and (2) at least one of the convictions should be vacated because dual convictions for attempted felony murder with a firearm and attempted premeditated murder with a deadly weapon violate double jeopardy under the merger principle.

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A. The Williams Rule Evidence

Section 90.404(2)(a), Florida Statutes (2023), provides for the admission of other crimes, wrongs or acts under certain conditions: (a) 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.

(emphasis added). Such evidence is also known as Williams Rule evidence or collateral crimes evidence. Conde v. State, 860 So. 2d 930, 945 (Fla. 2003). The test for admissibility of Williams Rule evidence is relevancy: “If the proffered evidence is relevant to a material fact in issue, it is admissible even though it points to a separate crime.” Id. at 660. This is so “whether the evidence tends to exculpate or convict, if it is relevant; that is, if it bears a certain relation to the crime charged to the extent that it is relevant to a fact in issue.” Id. at 661 (emphasis in original).

Corner v. State, 868 So. 2d 553, 556 (Fla. 3d DCA 2004) (quoting Williams v. State, 110 So. 2d 654, 659-61 (Fla.1959)). See also Pitts v. State, 263 So. 3d 834, 838 (Fla. 1st DCA 2019) (“Section 90.404(2)(a) establishes the general rule that collateral crime evidence is admissible when relevant to prove a material fact in issue, but is inadmissible when the evidence is relevant solely to prove bad character or propensity.”) (quotation omitted).

B. Dual Convictions and Sentences for Attempted Premeditated

Murder and Attempted Felony of the Same Victim

Ragan contends that dual convictions and sentences for attempted felony murder and attempted premeditated murder arising from a single criminal episode and committed upon a single victim, violates double jeopardy and, relatedly, the merger doctrine. Given recent caselaw, his contention is incorrect. The single homicide rule was first established in Houser v. State, 474 So. 2d 1193 (Fla. 1985). There, the defendant was convicted and sentenced for both DWI manslaughter and vehicular homicide, even though his actions resulted in a single death. On appeal, the defendant contended that double jeopardy principles prohibited imposition of dual convictions for homicide offenses resulting in a single death. The Florida Supreme Court agreed. While acknowledging that the two crimes constitute separate offenses under a Blockburger analysis, the Court held that “only one homicide conviction

5 In 1983, section 775.021(4), Florida Statutes, provided:

Whoever, in the course of one criminal transaction or episode, commits separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

Section 775.021(4) was subsequently amended to add subsection (4)(b), and the 2013 version (applicable to the instant case) includes the following additional language:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute. 3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

SEPARATE CONVICTIONS OF VEHICULAR HOMICIDE AND

FLEEING AND ELUDING CAUSING SERIOUS INJURY OR

DEATH THAT INVOLVE THE SAME VICTIM?

The Court answered that question in the negative, abolishing the “single homicide” rule, first established in Houser, “that dual convictions for offenses resulting from a single death were prohibited in Florida.” Id. at 67. The Court in Maisonet-Maldonado held that the statutory language of section 775.021(4), Florida Statutes (2010), “clearly expresses that offenses which pass the codified Blockburger test should be punished separately and that there is no exception for offenses arising from a single death.” Id. at 69. The only exceptions to the rule, it continued, are those listed in section 775.021(4), Florida Statutes (2010),6 which provides: (4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof

6 The 2010 version of section 775.021(4) construed by the Court in Maisonet- Maldonado is identical to the 2013 version applicable in the instant case.

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

“Under the plain meaning of section 775.021(4)(a), Florida Statutes (1993), a court is required to examine each of a defendant&#x²⁷;s convictions arising out of the same incident to determine whether ‘each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.’” Id. at 70 (quoting Gaber v. State, 684 So. 2d 189, 190 (Fla. 1996)). Courts are to look to the statutory elements of the offenses, not to the “facts of the record,” to determine where one offense “requires proof of an element that the other does not.” Id. If the test is satisfied, the courts turn to whether an exception applies under section 775.021(4)(b)(1)-(3): (b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute. 3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

As applied here, Ragan was convicted of attempted first-degree murder and attempted felony murder, arising from the same criminal episode and committed upon a single victim. We first turn to the statutory elements of each offense (rather than the accusatory pleading or the proof at trial) to determine whether each offense requires proof of an element that the other does not. And since the element of “attempt” is the same for both offenses, our analysis focuses on the elements of the completed offenses of firstdegree premeditated murder and first-degree felony murder. First-Degree Premeditated Murder The three elements of first-degree premeditated murder are set forth in the standard jury instructions: To prove the crime of First-Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt: