Elcaronwall> Filed 05/owml ' 0912+ ANT ET

RE(11VED.5/6/2013 Il9;l3:31 Thomas D. Hall, Clerk, Supreme �254'ourc

IN T1[E¢ SL-PREME COURT OF FLORIDA

A:.FONSO T.EVERTES JOHNGON, III,

Pet it iorder,

CASE NO. SC13-6LOSTU DCA CASE NO. '>D12-122"i

STA i OF FLOlflDA,

Resporxiet:t .

ON NOTICE TO INVOKF DISCRETTONARY REV[EW

OF A l)ECTSION OE·' THE FfFTH DISTl¢IPT COURT OF APPEA1,

FESPONDENT..'S BRTHF ON J[.]R:gpICTION

PAMELA JO BONDIATTORNEY GENERAL

WESLEY HEIDTDAYTONA R!.:ACH BUREAU CH:EFCRIMINAL APPEsAL5

Fla. Bar # 0773026

PAMELA J. KO-LERASSISTANT A'I'CORNEY G]-NERA:.

Fia. Bar #0775990

444 Seabreeze Blvd,, 5t.h F-.corIJaytona Beach, FL 32118(386) 238 4990/FAX: (386) 2'4H 4997cria.appd.ab3myflorida1 egã: , com

COUNSEL FOR RESPONDHNT

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT

THE OPINION OF THE FIFTH DISTRICT COURT OF APPEAL INTHE CASE SUB JUDICE IS NOT IN EXPRESS AND DIRECTCONFLICT WITH MUIR v. STATE, 987 So. 2d 23Ó (Fla.4th DCA 2008), OR PALMER v. STATE, 978 So. 2d 282(Fla. 4th DCA 2008). . . . . . . . . . . . . . . . . . . 7

CONCLUSION . . . . . . . . . . . .. . . . . . . . . . . . . . 10

DESIGNATION OF E-MAIL ADDRESSES . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 11

TABLE OF KUTHORITIES

C.ASES:

DHRS v. National Adoption Counseling Service, Inc.,498 So. 2d 888 (Fla. 1986) . . . . . . . . . . . . . . . . . 7

Gamble v. State,492 So. 2d 1132 (Fla. 5th DCA 1986) . . . . . . . . . . . 8,9

Johnson v. State,108 So. 3d 707 (Fla. 5th DCA 2013) . . . . . . . . . . passim

Larzelere v. State,676 So. 2d 394 (Fla. 1996) . . . . . . . . . . . . . . . . 10

Lott v. State,695 So. 2d 1239 (Fla. 1997) . . . . . . . . . . . . . . . . 9

Muir v. State,987 So. 2d 230 (Fla. 4th DCA 2008) . . . . . . . . . . passim

Palmer v. State,978 So. 2d 282 (Fla. 4th DCA 2008) . . . . . . . . . . passim

Reaves v. State,485 So. 2d 829 (Fla. 1986) . . . . . . . . . . . . . . . . . 7

Rogers v. State,511 So. 2d 526 (Fla. 1987) . . . . . . . . . . . . . . . . 10

OTHER ÄUTHORITIES:

Art. V, § 3(b) (3), Fla. Const . . . . . . . . . . . . . . . . . 7

Fla. R. App. P. 9.030(a) (2) (A) (iv) . . . . . . . . . . . . . . 7

11

STATEMENT OF THE CASE AND FACTS

The Fifth District court's opinion in Johnson v. State, 108

So. 3d 707 (Fla. 5th DCA 2013), sets forth the following relevant

facts:

Appellant challenges his conviction foraggravated battery with a deadly weapon orbodily harm of his then girlfriend, Ms.Finnie, who sustained a stab wound to her handduring an altercation between the two. Thedefense theory was that Ms. Finnie had beenthe aggressor in the confrontation. Severalwitnesses testified on behalf of the State:the victim, her son, and police whoinvestigated the incident.

The defense offered the testimony of thevictim's cousin, Mr. Bass. He testified thatthe victim told him after the incident that"she had a knife waiting for [Appellant]sitting in the windowsill." Mr. Bass alsotestified that Ms. Finnie advised him that shecould not remember how she was injured becauseit happened so fast. The defense attempted tointroduce testimony from Mr. Bass related tohis knowledge of Ms. Finnie's character fortruthfulness. In a proffer made outside thepresence of the jury, Mr. Bass testified tothe following, upon questioning by defensecounsel:

Q. So do you-have you ever spokenwith other family members concerningMiss Finnie?

A. Spoken with them in terms ofregards to what?

Q. Her truth, veracity, anythingalong those lines.

A. Yes.

Q. Okay. And outside of the family,like other members of you-all'scommunity grouping, have you evertalked to any of those people andher name comes up?

1

A. Yes.

Q. And have-as far as her reputationwithin the community, in speakingwith these people, what is that?

A. She's simply like a day-and-nightperson. On the one hand, she's oneway, people would think that shewas, you know, a good person, but onthe other hand, you know, she's gota real deep, dark side.

Q. Well, I guess you were lookingfor her - you know, things along thelines of her truth, veracity.

A. Right. She's a - she's a verygood liar.

Q. Okay.

A. And -

Q. So that would be, no, she doesn'thave good truth or veracity?

A. No, she doesn't.

Q. And this opinion - I mean, it'snot based on just gossip or rumorsthat these people and that you haveabout her general reputation; isthat true?

A. Is it just

Q. No. Is it just - I mean, it's notbased on gossip

A. No. No, it's -

Q. - and rumors?

A. - based on firsthand knowledge.

Q. Okay.

When cross-examined during the proffer abouthis knowledge of Ms. Finnie's reputation, thefollowing occurred:

2

Q. Now, you said you've hadthi---you've talked about [Ms.Finnie] with other people. Who?

A. What,do you mean?

Q. Give me names of people you'vetalked to about [Ms. Finnie] and herreputation in the community. I neednames, who you've talked to.

A. Well, I've spoken with my auntabout her.

Q. What's her name?

A. Her name's Lily Finnie.

Q. That's your aunt?

A. Yes.

Q. Okay. Who else?

A. I spoke with my cousin about her,Carleetha Lamons.

Q. Okay.

A. I spoke with Shauna's ex.

Q. Who's that?

A. Marcus. Marcus Phillips.

Q. All those people you'redescribing, they're relatives orpeople in the same group of peoplethat run together, right?

A. Well, my - my mother also. Mymother, my aunt, my grandmother, mycousin - all of these are familymembers .

Q. And these conversations you'vehad, what are - tell me theconversations.

A. Well, how nasty [Ms. Finnie]could be.

3

Q. Nasty?

A. Yes.

Q. Okay.

Q. Have you talked to these peopleabout her reputation fortruthfulness or that she's nasty?

A. Both.

Q. You sit there around the kitchenand say you know what [Ms. Finnie's]reputation amongst the community isfor dishonesty. That's not true, isit?

A. Sir, this is a family member andwe deal with her on a daily basis.

Q. A family member?

A. Right. And we deal with her on adaily basis.

The trial court excluded the profferedtestimony, concluding that Appellant failed toestablish a sufficient predicate because thewitness did not have sufficient broad-basedknowledge from the community concerning thevictim's reputation. The trial judge said:

I do not believe a sufficientpredicate has been laid for thereputation evidence. There's notbeen any evidence in a broad sectionof the community, and simply talkingamongst family members is notsufficient; and, therefore, I'm notgoing to allow the reputationtestimony.

Appellant argues that the trial court ' shouldhave permitted the testimony of Mr. Bass.Specifically, Appellant argues that anyperceived deficiency in the predicate goes to

4

the weight of the testimony, rather than itsadmissibility. We disagree and affirm.

Id. at 708-709. The Fifth District Court of Appeal had originally

per curiam affirmed Petitioner's judgment and sentence, but granted

Petitioner's motion for a written opinion. Id. at 708.

Petitioner filed a notice to invoke the discretionary

jurisdiction of this Court. The Respondent's brief on jurisdiction

follows.

5

SUMMARY OF ARGUMENT

This Court should decline to accept jurisdiction in the

instant case. While the Fifth District Court of Appeals indicated

Johnson "might be in conflict with" with Muir v. State, 987 So. 2d

230 (Fla. 4th DCA 2008), and Palmer v. State, 978 So. 2d 292 (Fla.

4th DCA 2008), there is no express and direct conflict with these

cases on the face of the decision under review.

6

ARGUMENT

THE OPINION OF THE FIFTH DISTRICT COURT OFAPPEAL IN THE CASE SUB JUDICE IS NOT IN EXPRESSAND DIRECT CONFLICT WITH MUIR v. STATE, 987 So.2d 230 (Fla. 4th DCA 2008), OR PALMER v. STATE,978 So. 2d 282 (Fla. 4th DCA 2008).

Under Article V, Section 3 (b) (3) of the Florida Constitution

and Florida Rule of Appellate Procedure 9.030(a) (2) (A) (iv), this

Court may review any decision of a district court of appeal that

expressly and directly conflicts with a decision of another

district court of appeal or of the Supreme Court on the same

question of law. In Reaves v. State, 485 So. 2d 829 (Fla. 1986),

this Court said that the conflict between decisions must be express

and direct, i.e., it must appear within the four corners of the

majority decision. Additionally, this Court has held that inherent

or so-called "implied" conflict may not serve as a basis for this

Court's jurisdiction. DHRS v. National Adoption Counseling Service,

Inc., 498 So. 2d 888, 889 (Fla. 1986).

The Fifth District Court of Appeal addressed Petitioner's

claim of conflict in Johnson as follows:

Appellant places primary reliance on twodecisions from our sister court, with which heurges we are in conflict: Muir v. State, 987So. 2d 230 (Fla. 4th DCA 2008); Palmer v.State, 978 So. 2d 282 (Fla. 4th DCA 2008) .These decisions are at the center ofAppellant's request for a written opinion andasserted belief that further review might beavailable. We initially dismissed the specterof conflict because the relatively briefopinions do not set forth the substance of thecross examinations wherein the state attemptedto "undermine the predicate." Without thosefacts, the opinions are not particularlyinstructive. Appellant interprets these

7

decisions to stand for the proposition thatany challenges to the foundation for this formof evidence fall within the exclusive provinceof the jury, rather than the trial judge,because the challenges go to the weight andnot the admissibility of the evidence. Inother words, once the impeachment witnessmakes the conclusory assertion that he isfamiliar with the witness's reputation forveracity in the community, the evidence mustbe admitted, despite the effectiveness ofchallenges to "undermine the predicate."Appellant's interpretation finds some supportin the language of the opinions. If this iswhat. was intended in these decisions, theopinions offer no analysis or authority tosupport such a proposition, which is clearlycontrary to section 90.105 and controllingprecedent. We thus acknowledge that ourdecision today might be in conflict withPalmer and Muir, although it is in harmonywith an earlier decision from the same court,Gonzalez, 871 So. 2d 1010.FN1.

FN1. Gamble v. State, 492 So. 2d 1132 (Fla.5th DCA 1986) , also cited by Appellant isdistinguishable. Gamble simply stands for theproposition that an impeachment witness'stestimony is not inadmissible because hecannot remember who he talked to in thecommunity. In this case, the basis forexcluding the witness was that the witnessonly talked to family members. The function ofthe trial judge in evaluating the foundationis to determine factually whether theimpeachment witness really knows the witness'sreputation and whether that reputation isamong associates or from the community of thewitness who is the subject of the impeachment.

Id. at 711 (emphasis added) . This Court should decline to accept

jurisdiction because the opinions in Muir and Palmer can be

distinguished from the instant case, not only because of the dearth

of facts contained in the two one-paged opinions, but also because

the refusal to allow the introduction of the victim's family

member's reputation testimony was, at worst, harmless error. As

8

noted by the Fifth District Court, the witness's lack of good

character and the fact that his testimony on other matters was

clearly rejected by the jury in finding Petitioner guilty as

charged established any error was harmless beyond a reasonable

doubt .

If. Petitioner is correct and the holdings. in Muir and Palmer

were that the trial court has no business in determining whether

the foundation for the admission of reputation evidence has been

met once the witness conclusively asserts he or she is aware of the

defendant's reputation for veracity in the community1, then Muir

and Palmer are in conflict with the well established law of

Florida. As this Court explained in Lott v. State, 695 So. 2d 1239

(Fla. 1997) :

Pursuant to section 90.609, Florida Statutes(1993), a party may use character evidence toattack the credibility of a witness if theevidence relates to the witness's reputationfor truthfulness. However, a foundation mustfirst be laid to establish that the persontestifying as to the witness's reputation is

1Respondent would also dispute that any such conclusorytestimony was obtained from the witness in this case as thequestion asked was whether he had spoken to other family members or"members of you-all's community grouping" regarding the victim's"truth, veracity, anything along those lines." Id. at 708.Moreover, when the attorney attempted to have the witness explainwho "you-all's community grouping" was, the witness only namedmembers of the family and the victim's ex-boyfriend. Id.Accordingly, there never was any testimony in the instant case thatthe witness was aware of the victim's reputation for truthfulnessin the community (or neighborhood); yet another basis fordistinguishing Johnson from Muir and Palmer. Muir, 987 So. 2d at230 ("Do you know what Mr. Ward's reputation 1s In yourneighborhood for truth or dishonesty or honesty?" [Answer]: "It'spretty bad."); Palmer, 978 So. 2d at 283 (same).

9

aware of the witness's reputation fortruthfulness in the community. Charles W.Ehrhardt, Florida Evidence § 405.1 (1995 ed.).Reputation evidence must be sufficientlybroad-based and should not be predicated on"mere personal opinion, fleeting encounters,or rumor." Rogers v. State, 511 So. 2d 526,530 (Fla. 1987).

Id. at 1242 (emphasis added). This Court has also explained that

the "community from which the reputation testimony is drawn [must

be] sufficiently broad to provide the witness with adequate

knowledge to give a reliable assessment." Larzelere v. State, 676

So. 2d 394, 399 (Fla. 1996). In. light of the well established law

in Florida, the holdings of the district court in Muir and Palmer

could not have been that a trial court would have no role in making

a determination regarding the sufficiency of the foundation for the

admission of reputation evidence as proposed by Petitioner.

Accordingly, this Court should decline to accept conflict

jurisdiction.

CONCLUSION

Based on the arguments and authorities presented herein,

Respondent respectfully requests this Honorable Court decline to

accept jurisdiction in this case.

10

DESIGNATION OF E-MAIL ADDRESSES

I HEREBY DESIGNATE the following e-mail addresses for the

purpose of service of all documents required to be served pursuant

to Rule 2.516 in this proceeding: Primary E-Mail Address:

crimappdab@myfloridalegal.com; Secondary E-Mail Address:

pamela.koller@myfloridalegal.com.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above and

foregoing Respondent's Brief on Jurisdiction has been delivered via

e-mail to counsel for Petitioner, Mark Miller, Esquire, at

mark@millerappellate.com this 6th day of May, 2013.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that the size and style of type used in this

brief is 12-point Courier New, in compliance with Fla. R. App. P.

9.210 (a) (2).

.Respectfully submitted,

PAMELA JO BONDIATTORNEY GENERAL

/s/Wesley HeidtWESLEY HEIDTDAYTONA BEACH BUREAU CHIEFCRIMINAL APPEALSFla. Bar No. 0773026

/s/Pamela J. KollerPAMELA J. KOLLERASSISTANT ATTORNEY GENERALFla. Bar. No. 0775990OFFICE OF THE ATTORNEY GENERAL444 Seabreeze BoulevardSuite 500Daytona Beach, Florida 32118(386) 238-4990/ 238-4997 (fax)crimappdab@myfloridalegal.com

11

108 So.3d 707 Page 1 of 7

108 So.3d 707, 38 Fla. L. Weekly D493

Briefs and Other Related DocumentsJudges and Attorneys

District Court of Appeal of Florida,Fifth District.

Alfonso Levertes JOHNSON, Appellant,v.

STATE of Florida, Appellee.

No. 5D12-1221.March 1, 2013.

Background: Defendant was convicted in the Circuit Court, St. Johns County, Wendy W. Berger, J.,of aggravated battery with a deadly weapon or bodily harm. Defendant appealed.

Holdings: The District Court of Appeal, Torpy, J., held that:{1). trial court did not abuse its discretion in excluding proffered testimony about victim's allegedreputation for dishonesty; and£21 any error in excluding that testimony was harmless.

Affirmed.

West Headnotes

[1] KeyCite Citing References for this Headnote

c»410 Witnessesc»410II Competency

n,410II(A) Capacity and Qualifications in Generalc=410k37 Knowledge or Means of Knowledge of Facts

tw410k37(4) k. Character or reputation. Most Cited Cases

Under hearsay exception for evidence of reputation of a person's character in the communityn the"community" must be sufficiently broad-based so that the reputation evidence is not merely based onfleeting encounters, or rumor. West's F.S.A. 4 90.803(21).

]21 KeyCite Citina References for this Headnote

c�523410Witnesseso»410IV Credibility and Impeachment

Cm410IV(B) Character and Conduct of Witnesso»410k353 Competency of Impeaching Witnesses as to Character or Reputation

o»410k355 k. Knowledge or means of knowledge of impeaching witness. Most Cited Cases

Trial court did not abuse its discretion, in aggravated battery prosecution involving altercation withdefendant's then-girlfriend in which the defense theorized that girlfriend had been the aggressor, inexcluding proffered testimony of girlfriend's cousin about girlfriend's alleged reputation fordishonesty; source of the purported reputation was limited to members of girlfriend's family, asopposed to "associates" or the "community," and it was unclear whether cousin was truly familiar withgirlfriend's reputation in the community or among her associates. West's F.S.A. QG 90.609, 90.803L211.

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108 So.3d707 Page20f7

JJ]. KeyCite Citina References for this Headnote

o=110 Criminal Lawo=110XXIV Review

110XXIV(Q) Harmless and Reversible Error110k1170.5 WitnessesO*110k1170.5(1) k. In general Most Cited Cases

Any error in excluding proffered testimony by cousin of defendant's girlfriend as to girifriend'salleged reputation for dishonesty was harmless in aggravated battery prosecution involvingaltercation with girlfriend in which the defense theorized that girlfriend had been the aggressor¿cousin was permitted to testify that girlfriend told him after charged incident that "she had a knifewaiting for [defendant] sitting in the windowsill" and that she could not remember how she sustainedstab wound to her hand because it happened so fast, jury obviously rejected that testimony, andcousin admitted to eight prior convictions, four of which were felonies and four of which involveddishonesty. West's F.S.A. 44 90.609, 90.803(21).

*707 Mark Miller of App. Law Office of Mark Miller, P.A., Stuart, for Appellant.

*708 Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant AttorneyGeneral, Daytona Beach, for Appellee.

ON MOTION FOR WRITTEN OPINION

TORPY, J.We grant the motion for written opinion, withdraw our prior disposition without opinion, and

substitute this opinion in its stead. The sole issue on appeal is whether the trial court abused itsdiscretion in excluding the testimony of a witness who would have testified concerning the victim'scharacter for truthfulness. We conclude that the trial court did not abuse its discretion when itexcluded the testimony based on an inadequate foundation. Alternatively, we conclude that any errorwas harmless.

Appellant challenges his conviction for aggravated battery with a deadly weapon or bodily harm ofhis then girlfriend, Ms. Finnie, who sustained a stab wound to her hand during an altercation betweenthe two. The defense theory was that Ms. Finnie had been the aggressor in the confrontation. Severalwitnesses testified on behalf of the State: the victim, her son, and police who investigated theincident.

The defense offered the testimony of the victim's cousin, Mr. Bass. He testified that the victim toldhim after the incident that "she had a knife waiting for [Appellant] sitting in the windowsill." Mr. Bassalso testified that Ms. Finnie advised him that she could not remember how she was injured becauseit happened so fast. The defense attempted to introduce testimony from Mr. Bass related to hisknowledge of Ms. Finnie's character for truthfulness. In a proffer made outside the presence of thejury, Mr. Bass testified to the following, upon questioning by defense counsel:

Q. So do you-have you ever spoken with other family members concerning Miss Finnie?

A. Spoken with them in terms of regards to what?

Q. Her truth, veracity, anything along those lines.

A. Yes.

Q. Okay. And outside of the family, like otheY members of you-all's community grouping, have youever talked to any of those people and her name comes up?

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108 So.3d 707 Page 3 of 7

A. Yes.

Q. And have-as far as her reputation within the community, in speaking with these people, what isthat?

A. She's simply like a day-and-night person. On the one hand, she's one way, people would thinkthat she was, you know, a good person, but on the other hand, you know, she's got a real deep,dark side.

Q. Well, I guess you were looking for her-you know, things along the lines of her truth, veracity.

A. Right. She's a-she's a very good liar.

Q. Okay.

A. And-

Q. So that would be, no, she doesn't have good truth or veracity?

A. No, she doesn't.

Q. And this opinion-I mean, it's not based on just gossip or rumors that these people and that youhave about her general reputation; is that true?

A. Is it just

Q. No. Is it just-I mean, it's not based on gossip

A. No. No, it's-

Q. -and rumors?

A. -based on firsthand knowledge.

*709 Q. Okay.

When cross-examined during the proffer about his knowledge of Ms. Finnie's reputation, thefollowing occurred:

Q. Now, you said you've had thi---you've talked about [Ms. Finnie] with other people. Who?

A. What do you mean?

Q. Give me names of people you've talked to about [Ms. Finnie] and her reputation in thecommunity. I need names, who you've talked to.

A. Well, I've spoken with my aunt about her.

Q. What's her name?

A. Her name's Lily Finnie.

Q. That's your aunt?

A. Yes.

Q. Okay. Who else?

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108 So.3d 707 Page 4 of 7

A. I spoke with my cousin about her, Carleetha Lamons.

Q. Okay.

A. I spoke with Shauna's ex.

Q. Who's that?

A. Marcus. Marcus Phillips.

Q. All those people you're describing, they're relatives or people in the same group of people thatrun together, right?

A. Well, my-my mother also. My mother, my aunt, my grandmother, my cousin-all of these arefamily members.

Q. And these conversations you've had, what are-tell me the conversations.

A. Well, how nasty [Ms. Finnie] could be.

Q. Nasty?

A. Yes..

Q. Okay.

Q. Have you talked to these people about her reputation for truthfulness or that she's nasty?

A. Both.

Q. You sit there around the kitchen and say you know what [Ms. Finnie's] reputation amongst thecommunity is for dishonesty. That's not true, is it?

A. Sir, this is a family member and we deal with her on a daily basis.

Q. A family member?

A. Right. And we deal with her on a daily basis.

The trial court excluded the proffered testimony, concluding that Appellant failed to establish asufficient predicate because the witness did not have sufficient broad-based knowledge from thecommunity concerning the victim's reputation. The trial judge said:

I do not believe a sufficient predicate has been laid for the reputation evidence. There's not beenany evidence in a broad section of the community, and simply talking amongst family members isnot sufficient; and, therefore, I'm not going to allow the reputation testimony.

Appellant argues that the trial court should have permitted the testimony of Mr. Bass. Specifically,Appellant argues that any perceived deficiency in the predicate goes to the weight of the testimony,rather than its admissibility. We disagree and affirm.

jl]. ± Character evidence of the sort here may only be introduced in one form-reputation. §90.609, Fla. Stat. (2012). This form of evidence is thought to be reliable because it is the "product ofwhat is generally discussed in the community." Charles W. Ehrhardt, Florida Evidence § 405.1 (2012).Reputation evidence is just that-evidence of one's reputation in the community for a particular

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108 So.3d 707 Page 5 of 7

character *710 trait. It is not the personal opinion of the testifying witness or evidence of specificacts of untruthfulness. Because this form of evidence is hearsay by its very nature, its admission iscontrolled by section 90.803(21), Florida Statutes, which is the hearsay exception for reputationtestimony. Ehrhardt, supra, § 609.1. Section 90.803(21) only permits evidence of reputation "amongassociates or in the community." The "community" must be "sufficiently broad-based" so that thereputation evidence is not merely based on "'fleeting encounters, or rumor.'" Lott v. State, 695So.2d 1239, 1242 (Fia.1997) (quoting Rocers v. State, 511 So.2d 526, 530 (Fla.1987)).

The proponent of reputation evidence must "lay the foundation that the witness is aware of theperson's reputation in the community." Ehrhardt, supra, § 609.1. The party opposing the introductionof the evidence has the right to test the sufficiency of the foundation through cross-examination. Id.The factual determination of whether the impeachment witness is sufficiently familiar with thereputation of the witness is a preliminary question of fact to be determined by the trial judge basedon a preponderance of the evidence, pursuant to section 90.105. Ehrhardt, supra, § 105.1. In thisregard, the trial judge's function is the same for this form of evidence as other forms of evidence thatrequire a factual foundation for admission. See, e.g., Coney v. State, 653 So.2d 1009, 1012(Fla.1995) (whether hearsay qualifies as dying declaration is preliminary question for judge); see alsoEhrhardt, supra, § 609.1 ("[T]o be admissible, the trial judge must find that the witness is in factaware of the person's reputation and not the impression of one or two individuals or the personalopinion of the witness."); Fe//er v. State, 637 So.2d 911, 916 (Fla.1994) (reliability of hearsayevidence function of court prior to admission, not jury); Marlano v. State, 933 So.2d 111, 113 (Fla.4th DCA 2006) (whether statement was excited utterance is question for court); Ehrhardt, supra, §702.1 (whether witness is qualified as expert is preliminary question of fact for trial judge prior toadmission of expert's opinion). We review these preliminary determinations under an abuse ofdiscretion standard. Lott, 695 So.2d at 1242.

Accordingly, appellate courts have upheld the exclusion of character-for-truthfulness evidencewhen the source of the hearsay is too narrow or where the testifying witness does not actually knowthe person's reputation in the community. See, e.g., Ibar v. State, 938 So.2d 451, 469 (Fla.2006)(evidence inadmissible when based on conversation with family members and employee of stateattorney's office); Lott, 695 So.2d at 1242 (exclusion of character evidence was within trial court'sdiscretion where it was based on witness's and his family's experiences, rather than broad-basedcommunity knowledge); Larze/ere v. State, 676 So.2d 394, 400 (Fla.1996) (no abuse of discretion indenying testimony derived from limited period of time, limited number of people, and narrow sectionof community); Gonza/ez v. State, 871 So.2d 1010, 1011 (Fla. 4th DCA 2004) (reputation withinfamily too narrow segment of community; source of evidence must be sufficiently broad to enhanceits reliability); W/s/nsk/ v. State, 508 So.2d 504, 505 (Fla. 4th DCA 1987) (reputation must be basedon more than three or four persons); Fike v. State, 455 So.2d 628, 629 (Fla. 5th DCA 1984)(reputation of witness among criminal defense lawyers too narrow).

[2] Here, the trial court was well within its discretion in excluding the proffered testimony. Thequestions used to develop the foundation for this testimony were inartful at best. What was meant by*711 "community grouping" is unclear, but a fair reading of the entire testimony supports the trialcourt's conclusion that the source of the purported reputation was limited to the victim's family.Although one's reputation within one's family might be logically probative, it is simply not admissibleunder section 90.803(21) because family members are neither "associates" nor the "community." SeeIbar, 938 So.2d at 469 (evidence inadmissible when based on conversation with family members andemployee of state attorney's office); Gonzalez, 871 So.2d at 1011 (reputation within family toonarrow segment of community; source of evidence must be sufficiently broad to enhance itsreliability). Even assuming Mr. Bass's proffered testimony was sufficiently based on the relevantcommunity, his answers were confusing, inconsistent at times, and unresponsive. It is unclear fromthe testimony whether Mr. Bass was offering reputation evidence based on rumor or his personalopinion about Ms. Finnie's veracity from his "firsthand knowledge." The trial judge was in the bestposition to evaluate this testimony and make a preliminary finding of fact whether the witness wastruly familiar with the reputation of the victim in the "community" or among her "associates," as thestatute requires. We cannot disturb this firiding under our standard of review.

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108 So.3d 707 Page 6 of 7

Appellant places primary reliance on two decisions from our sister court, with which he urges weare in conflict: Muir v. State, 987 So.2d 230 (Fla. 4th DCA 2008); Palmer v. State, 978 So.2d 282(Fla. 4th DCA 2008). These decisions are at the center of Appellant's request for a written opinion andasserted belief that further review might be available. We initially dismissed the specter of conflictbecause the relatively brief opinions do not set forth the substance of the cross examinations whereinthe state attempted to "undermine the predicate." Without those facts, the opinions are notparticularly instructive. Appellant interprets these decisions to stand for the proposition that anychallenges to the foundation for this form of evidence fall within the exclusive province of the jury,rather than the trial judge, because the challenges go to the weight and not the admissibility of theevidence. In other words, once the impeachment witness makes the conclusory assertion that he isfamiliar with the witness's reputation for veracity in the community, the evidence must be admitted,despite the effectiveness of challenges to "undermine the predicate." Appellant's interpretation findssome support in the language of the opinions. If this is what was intended in these decisions, theopinions offer no analysis or authority to support such a proposition, which is clearly contrary tosection 90.105 and controlling precedent. We thus acknowledge that our decision today might be inconflict with Palmer and Muir, although it is in harmony with an earlier decision from the same court,Gonza/ez, 871 So.2d 1010.FN1

FN1. Gamble v. State, 492 So.2d 1132 (Fla. 5th DCA 1986), also cited by Appellant isdistinguishable. Gamble simply stands for the proposition that an impeachment witness'stestimony is not inadmissible because he cannot remember who he talked to in thecommunity. In this case, the basis for excluding the witness was that the witness onlytalked.to family members. The function of the trial judge in evaluating the foundation isto determine factually whether the impeachment witness really knows the witness'sreputation and whether that reputation is among associates or from the community ofthe witness who is the subject of the impeachment.

j_U Lastly, we address the State's alternative contention that any error here was harmless. Mr.Bass was permitted to testify regarding the statements made to him by Ms. Finnie. These statements,if *722 believed, would have clearly contradicted Ms. Finnie's testimony. Obviously, the jury rejectedthis testimony, perhaps because Mr. Bass was not the model of good character himself. He admittedthat he had been convicted of eight crimes, four of which were felonies and four of which were crimesinvolving dishonesty. Under the facts of this case, the addition of Mr. Bass's view on the character ofthe victim would have added nothing to enhance his credibility and not changed the outcome.FN2

FN2. The persuasive effect of reputation evidence on juries is unclear. When presentedproperly, the evidentiary presentation is very brief and seemingly lacking in substance.Although theoretically reliable, the notion that unsubstantiated gossip may be consideredas evidence is counterintuitive.

AFFIRMED.

ORFINGER, C.J., and EVANDER, J., concur.

Fla.App. 5 Dist.,2013.Johnson v. State108 So.3d 707, 38 Fla. L. Weekly D493

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