Elisamuel Caballero-Quinones v. Kyle T. Wilder, Wilder Outdoors LLC and Sheriff Grady C. Judd in His Official Capacity as Sheriff of Polk County, Florida

SIXTH DISTRICT COURT OF APPEAL
                           STATE OF FLORIDA
                          _____________________________

                              Case No. 6D2023-4106
                    Lower Tribunal No. 2020CA-000514-0000-00
                        _____________________________

                          ELISAMUEL CABALLERO-QUINONES,

                                       Appellant,

                                             v.

   KYLE T. WILDER, WILDER OUTDOORS, LLC, and SHERIFF GRADY JUDD, in his
                 official capacity as Sheriff of Polk County,

                                       Appellees.

                          _____________________________

                    Appeal from the Circuit Court for Polk County.
                              William D. Sites, Judge.

                                     April 17, 2026

MIZE, J.

      Appellant, Elisamuel Caballero-Quinones (“Plaintiff”), appeals the trial

court’s final judgment and its order denying Plaintiff’s motion for new trial. Plaintiff

asserts that the trial court erred by excluding the deposition testimony of the

organizational representative 1 of Appellee, Sheriff Grady Judd (the “Sheriff”),

concerning the Sheriff’s office’s investigation of the car accident that is the subject



      1
          See Fla. R. Civ. P. 1.310(b)(6).
of this case. Because we agree that the legal grounds relied upon by the trial court

to exclude the representative’s deposition testimony did not support exclusion of the

testimony, we reverse the final judgment and remand for a new trial.

      In reversing the final judgment, we reject the Sheriff’s argument that we

should affirm the trial court under the tipsy coachman doctrine because the

representative’s deposition testimony was properly excludable under Section

90.403, Florida Statutes (“Rule 403”). The trial court did not perform a Rule 403

analysis, and we conclude that an appellate court cannot conduct such an analysis in

the first instance in order to affirm a trial court under the tipsy coachman doctrine.

This holding places us in conflict with two decisions of the First District, Childers

v. State, 936 So. 2d 585 (Fla. 1st DCA 2006), and Mizell v. State, 350 So. 3d 97 (Fla.

1st DCA 2022). Accordingly, pursuant to Article V, Section 3(b)(4) of the Florida

Constitution, we certify this decision to be in direct conflict with those decisions.

                       Background and Procedural History

      Plaintiff is a mail carrier for the United States Postal Service. On the date of

the incident that gave rise to this case, he was stopped at a red light in a busy

intersection in his mail truck. On the opposite side of the intersection, facing

Plaintiff, Polk County Sheriff’s Deputy Edwin Harvey (“Deputy Harvey”) was

driving through the intersection in his police vehicle while on duty with the Sheriff’s

Office. Detective Harvey had received an emergency call and activated his lights



                                           2
and sirens to pass a red light and proceed through the intersection. When he went

through the intersection, he collided with Kyle Wilder (“Wilder”) who was driving

his truck through the intersection past a green light on Plaintiff’s lefthand side. The

impact between Deputy Harvey’s police vehicle and Wilder’s truck caused the truck

to crash into Plaintiff’s mail truck. The impact rendered the mail truck inoperable,

and Plaintiff sustained injuries.

      Plaintiff filed suit against the Sheriff’s office, alleging that the Sheriff’s office

was vicariously liable for the negligence of Deputy Harvey. 2 The primary dispute

in the case was whether the collision was caused by Wilder’s failure to yield to the

police vehicle or by Deputy Harvey’s failure to act with sufficient caution when he

passed through a red light to cross the intersection.

      During the litigation, Plaintiff took the deposition of Lieutenant Anthony

Allaire (“Lieutenant Allaire”) as the organizational representative of the Sheriff’s

Office pursuant to Florida Rule of Civil Procedure 1.310(b)(6). Lieutenant Allaire

had previously worked as a member of the Sheriff’s Office’s traffic safety board, the

panel which evaluated Deputy Harvey’s actions in the collision on behalf of the

Sheriff’s office. In his testimony, Lieutenant Allaire explained that the traffic safety

board utilized a points system for evaluating collisions—it would assess points and




      2
       Plaintiff also sued Wilder and Wilder’s LLC but later dismissed both of them
from the case. Neither Wilder nor Wilder’s LLC have appeared in this appeal.

                                            3
then send those points to the involved officer’s commander to impose discipline.

The points were based off various factors, such as past incidents, the circumstances

of the collision, seatbelt use, the use of emergency lights and sirens, whether the

collision caused injury or damage, and whether the collision was a “preventable

crash.” He explained that a “preventable crash” was “a crash where the agency

member operating the vehicle could have done something to -- on his part or his

operation of the vehicle to avoid the crash.” If the officer could not have reasonably

done anything to prevent the crash from occurring, then the crash was not a

preventable crash.

      Lieutenant Allaire testified that the traffic safety board determined that

Deputy Harvey’s collision was a preventable crash and the crash was Deputy

Harvey’s fault. According to Lieutenant Allaire, the board “felt that he didn’t exert

enough caution when he entered the intersection . . . he could have been a little more

cautious when proceeding through and possibly could have seen there was another

situation presenting itself that could have caused a crash.” The traffic safety board

assessed points against Deputy Harvey, who then received a suspension for violating

agency policy by failing to yield and getting into a preventable crash which caused

injury and property damage. In his deposition, Lieutenant Allaire also testified that

the Sheriff’s deputy who initially investigated the collision also determined that

Deputy Harvey was at fault for the collision and issued Deputy Harvey a traffic



                                          4
citation for failure to yield at an intersection. Lieutenant Allaire testified that, in

fact, every department of the Sheriff’s office that evaluated the collision determined

that the collision was preventable and that it was Deputy Harvey’s fault.

      The Sheriff’s office filed a motion in limine to exclude Lieutenant Allaire’s

testimony, arguing that it contained hearsay, was a subsequent remedial measure,

was irrelevant, and that its prejudicial effect would outweigh its probative value.

The Sheriff’s office also argued that whether something was a “preventable crash”

was “a much higher standard than will be applied by the jury on the issue of

liability.” The trial court held a hearing on the motion in limine. While it appears

that the trial court orally granted the motion at the hearing, the trial court never

entered an order on the motion. When the parties appeared for trial, they then

disagreed on the details and effect of the trial court’s ruling on the motion in limine.

As a result, the parties argued about the motion in limine again, both before and

during the trial. Before the trial, the discussion between the parties and the court did

not touch upon the basis for the trial court’s ruling but merely concerned the scope

of the ruling. That discussion resulted in the trial court ordering Plaintiff not to

mention Lieutenant Allaire’s testimony or the Sheriff’s office’s investigation of the

collision during the trial without first asking the trial court’s permission.

      Near the end of the defense’s case-in-chief, during a break in Deputy Harvey’s

testimony, Plaintiff’s counsel informed the court that Plaintiff would now seek to



                                           5
use Lieutenant Allaire’s deposition testimony in rebuttal to Deputy Harvey’s

testimony. Plaintiff’s counsel asserted that Deputy Harvey’s testimony was that

Deputy Harvey was not at fault for the collision, and so the door had been opened

for Plaintiff to introduce Lieutenant Allaire’s testimony that the Sheriff’s Office

determined that Deputy Harvey was “at fault for this crash and that this was a

preventable crash.” In response, the Sheriff’s counsel asserted that the trial court’s

previous ruling at the hearing on the motion in limine ruling had been based on three

grounds: (1) Lieutenant Allaire’s testimony was hearsay; (2) the Sheriff’s office’s

investigation about which Lieutenant Allaire testified was a subsequent remedial

measure; and (3) Lieutenant Allaire’s testimony was not relevant. The Sheriff’s

counsel argued that these grounds were correct and that Lieutenant Allaire’s

testimony should be excluded. Plaintiff’s counsel responded by arguing that: (1)

Lieutenant Allaire’s organizational representative testimony that Deputy Harvey

was at fault for the accident was the official position of the Sheriff’s office in the

case and should be admitted; (2) Lieutenant Allaire’s testimony should be admitted

as an admission against interest by the Sheriff’s office; (3) while the discipline that

Deputy Harvey received was a subsequent remedial measure, the investigation itself

and the Sheriff’s office’s conclusion that the collision was preventable and that

Deputy Harvey was at fault was not a subsequent remedial measure; (4) the Sheriff’s

office’s investigation and its conclusion that Deputy Harvey was at fault for the



                                          6
collision was relevant evidence that the jury could consider in determining whether

Deputy Harvey was negligent. Plaintiff’s counsel also specified that Plaintiff only

intended to offer Lieutenant Allaire’s testimony that he conducted the investigation

for the traffic safety board and that the board found that Deputy Harvey was at fault

for the collision. Plaintiff’s counsel did not intend to offer any testimony concerning

the fact that Deputy Harvey received a traffic citation or concerning any discipline

that Deputy Harvey received.

       After hearing the parties’ arguments, the trial court ruled that the Sheriff’s

office’s investigation about which Lieutenant Allaire testified was protected by the

accident report privilege and, therefore, Lieutenant Allaire’s testimony was not

admissible. The trial court also indicated during its discussions with the parties and

its ruling that it believed that the Sheriff’s office investigation was a subsequent

remedial measure and that Lieutenant Allaire’s testimony was evidence of a traffic

citation.

       After the trial court’s ruling, Deputy Harvey completed the rest of his

testimony. At the conclusion of the trial, the jury returned a verdict finding that

Deputy Harvey was not negligent. Plaintiff moved for a new trial on the ground that

the trial court erred by not admitting Lieutenant Allaire’s deposition testimony

because the testimony was an admission against interest. The Sheriff filed a

response arguing that: (1) Lieutenant Allaire’s testimony was protected by the



                                          7
accident report privilege; (2) Lieutenant Allaire’s testimony was inadmissible

evidence of a traffic citation; (3) the Sheriff’s office’s investigation about which

Lieutenant Allaire testified was a subsequent remedial measure; and (4) the

probative value of Lieutenant Allaire’s testimony was substantially outweighed by

the danger of unfair prejudice. The trial court denied the motion for new trial in an

unelaborated order and entered a final judgment in favor of the Sheriff. This appeal

followed.

                                      Analysis

      “Admissibility of evidence is within the sound discretion of the trial court,

and the trial court’s ruling will not be disturbed on appellate review unless there is

an abuse of discretion.” Smith v. State, 415 So. 3d 278, 291 (Fla. 6th DCA 2025)

(quoting Joseph v. State, 336 So. 3d 218, 234 (Fla. 2022)). “However, a court’s

discretion is limited by the evidence code and a court’s erroneous interpretation of

the evidence code is subject to de novo review.” Barcomb v. State, 68 So. 3d 412,

414 (Fla. 4th DCA 2011).        A trial court’s interpretation of statutes creating

evidentiary privileges is likewise subject to de novo review. Orosco v. Rodriguez,

376 So. 3d 92, 94 (Fla. 6th DCA 2023) (“[A] trial court’s interpretation and

application of a statute is reviewed de novo.”). In this case, the trial court’s




                                          8
interpretation of the evidence code and statutory privileges concerning accident

reports and traffic citations were all erroneous. 3

I.    The Accident Report Privilege

      As detailed above, the trial court found that Lieutenant Allaire’s testimony

about the Sheriff’s office’s investigation was inadmissible under the accident report




      3
         At the outset, we note that the discussion in the trial court concerning
whether Lieutenant Allaire’s testimony was an “admission against interest” was a
red herring. A party’s own out-of-court statement that is offered against the party is
a hearsay exception, as is an out-of-court statement made by a person specifically
authorized by a party to make a statement concerning the subject of the statement. §
90.803(18)(a), (c), Fla. Stat. However, Lieutenant Allaire’s deposition testimony
was not hearsay and so no hearsay exception was necessary for the testimony to be
admitted. Florida Rule of Civil Procedure 1.330(a)(2) provides that the deposition
of a party or a party’s organizational representative designated under Rule
1.310(b)(6) may be used by an adverse party for any purpose “as though the witness
were then present and testifying.” (emphasis added). Therefore, the deposition of
party’s organizational representative may be used by an adverse party in trial as if
the deposition was live testimony. Since Lieutenant Allaire’s deposition testimony
was equivalent to live in-court testimony, it was not hearsay and no hearsay
exception was necessary for the deposition to be introduced and utilized at trial. See
Kelley v. Webb, 676 So. 2d 538, 540 (Fla. 5th DCA 1996); LaTorre By & Through
LaTorre v. First Baptist Church of Ojus, Inc., 498 So. 2d 455, 458 (Fla. 3d DCA
1986); Canales v. Compania de Vapores Realma, S.A., 564 So. 2d 1212, 1214 (Fla.
3d DCA 1990); Borden Dairy Co. of Ala., LLC v. Kuhajda, 152 So. 3d 763, 766
(Fla. 1st DCA 2014); Castaneda ex rel. Cardona v. Redlands Christian Migrant
Ass’n, Inc., 884 So. 2d 1087, 1091-92 (Fla. 4th DCA 2004). Of course, any hearsay
statements within Lieutenant Allaire’s deposition testimony would be excludable as
hearsay absent some applicable hearsay exception, but Lieutenant Allaire’s
testimony itself was not hearsay and required no hearsay exception to be admissible.
On appeal, the Sheriff’s office no longer contends that Lieutenant Allaire’s
testimony was hearsay or that the testimony was not relevant.

                                            9
privilege. The accident report privilege is contained within section 316.066, Florida

Statutes, which provides in pertinent part:

      (1)(a) A Florida Traffic Crash Report, Long Form must be completed
      and submitted to the department within 10 days after an investigation
      is completed by the law enforcement officer who in the regular course
      of duty investigates a motor vehicle crash that:

             1. Resulted in death of, personal injury to, or any indication of
             complaints of pain or discomfort by any of the parties or
             passengers involved in the crash;

             2. Involved a violation of s. 316.061(1) or s. 316.193;

             3. Rendered a vehicle inoperable to a degree that required a
             wrecker to remove it from the scene of the crash; or

             4. Involved a commercial motor vehicle.

      (b) The Florida Traffic Crash Report, Long Form must include:

             1. The date, time, and location of the crash.

             2. A description of the vehicles involved.

             3. The names and addresses of the parties involved, including all
             drivers and passengers, and the identification of the vehicle in
             which each was a driver or a passenger.

             4. The names and addresses of witnesses.

             5. The name, badge number, and law enforcement agency of the
             officer investigating the crash.

             6. The names of the insurance companies for the respective
             parties involved in the crash.

      ...

      (4) Except as specified in this subsection, each crash report made by a
      person involved in a crash and any statement made by such person to
      a law enforcement officer for the purpose of completing a crash

                                         10
      report required by this section shall be without prejudice to the
      individual so reporting. Such report or statement may not be used as
      evidence in any trial, civil or criminal. However, subject to the
      applicable rules of evidence, a law enforcement officer at a criminal
      trial may testify as to any statement made to the officer by the person
      involved in the crash if that person's privilege against self-incrimination
      is not violated.

(emphasis added).

      The “plain meaning of the statute is always the starting point in statutory

interpretation.” Alachua Cnty. v. Watson, 333 So. 3d 162, 169 (Fla. 2022). In this

case, we need not go farther than that starting point, as the text of section 316.066 is

clear and unambiguous. Section 316.066 provides that a crash report made by a

person involved in a crash and any statement made to a law enforcement officer for

the purpose of completing a crash report required by section 316.066 may not be

used as evidence in any trial. Neither the traffic safety board’s investigation nor

Lieutenant Allaire’s testimony about the investigation was a crash report made

pursuant to section 316.066, and neither the investigation nor Lieutenant Allaire’s

testimony was a statement made to a law enforcement officer for the purpose of

completing such a crash report. None of the testimony of Lieutenant Allaire that

Plaintiff sought to introduce mentioned any crash report prepared pursuant to section

316.066 or any statement made to a law enforcement officer for the purpose of

completing a crash report pursuant to section 316.066. For this reason, the trial court




                                          11
erred in excluding the deposition testimony of Lieutenant Allaire under the accident

report privilege.

II.    The Traffic Citation Privilege

       Section 316.650(9), Florida Statutes, provides that traffic “citations shall not

be admissible evidence in any trial, except when used as evidence of falsification,

forgery, uttering, fraud, or perjury, or when used as physical evidence resulting from

a forensic examination of the citation.” This provision makes only traffic citations

inadmissible at trial – it does not make inadmissible the results of any investigation

involving a person that received a traffic citation or the results of any investigation

that relied in some part on a traffic citation. None of the testimony of Lieutenant

Allaire that Plaintiff sought to introduce mentioned any traffic citation. Plaintiff’s

counsel specifically conceded that Plaintiff would not seek to introduce any portion

of Lieutenant Allaire’s testimony in which Lieutenant Allaire mentioned the traffic

citation issued to Deputy Harvey. For this reason, the trial court erred in excluding

the deposition testimony of Lieutenant Allaire under the traffic citation privilege.

III.   Subsequent Remedial Measures

       The subsequent remedial measures privilege is contained in section 90.407,

Florida Statutes, which provides in pertinent part:

       Evidence of measures taken after an injury or harm caused by an event,
       which measures if taken before the event would have made injury or
       harm less likely to occur, is not admissible to prove negligence, the



                                          12
      existence of a product defect, or culpable conduct in connection with
      the event.

      The Sheriff argues that Lieutenant Allaire’s testimony was properly excluded

under section 90.407 because the purpose of the Sheriff’s office’s investigation was

to determine whether to take remedial measures, including whether to discipline

Deputy Harvey. However, section 90.407 makes evidence of subsequent remedial

measures inadmissible, not evidence of investigations that were conducted to

determine whether to take subsequent remedial measures or reports that resulted

from such investigations. See Castaneda ex rel. Cardona v. Redlands Christian

Migrant Ass’n, Inc., 884 So. 2d 1087, 1093 (Fla. 4th DCA 2004) (holding that the

portion of a memorandum written by a party’s employee concerning the cause of an

accident for which the party was sued was improperly excluded as evidence of a

subsequent remedial measure). None of the testimony of Lieutenant Allaire that

Plaintiff sought to introduce mentioned any discipline imposed against Deputy

Harvey or any other remedial measure taken by the Sheriff’s office. Plaintiff’s

counsel specifically conceded that Plaintiff would not seek to introduce any portion

of Lieutenant Allaire’s testimony in which Lieutenant Allaire mentioned that Deputy

Harvey was disciplined. 4 For this reason, the trial court erred in excluding the


      4
        Since Plaintiff did not seek to introduce any portion of Lieutenant Allaire’s
testimony in which Lieutenant Allaire mentioned that Deputy Harvey was
disciplined, we need not, and do not, decide whether employee discipline is a
subsequent remedial measure, i.e., a measure taken after the relevant event that, “if
taken before the event would have made injury or harm less likely to occur.”

                                         13
deposition testimony of Lieutenant Allaire as evidence of a subsequent remedial

measure.

IV.   The Tipsy Coachman Doctrine and Section 90.403, Florida Statutes

      The trial court did not conduct a Rule 403 analysis during the trial below. We

do not have a transcript of the hearing on the motion in limine. However, the Sheriff

conceded in his Answer Brief that the trial court did not grant the motion in limine

based on Rule 403. Additionally, when the parties discussed the hearing on the

motion in limine at the trial, the Sheriff’s counsel provided a list of the three grounds

upon which the trial court based its ruling at the hearing, which did not include Rule

403. Because the Sheriff conceded below and on appeal that the trial court’s limine

ruling was not based on Rule 403, we do not find the record insufficient to

demonstrate that the trial court did not base its exclusion of Lieutenant Allaire’s

testimony on Rule 403. 5 See Creative Hardscapes, LLC v. Prawdzik, 397 So. 3d 163,



      5
         The Sheriff likewise does not contend that the trial court based its ruling
excluding Lieutenant Allaire’s testimony on any other ground which could serve as
a basis to affirm the trial court. As noted above, while the Sheriff’s office argued
below that Lieutenant Allaire’s testimony was hearsay and not relevant, the Sheriff
no longer makes these arguments on appeal. Nor could he. The testimony was
obviously relevant and, for the reasons explained supra in note 3, it was not hearsay.
While the Sheriff does not argue on appeal that Lieutenant Allaire’s testimony was
not relevant, we note Judge Wozniak’s assertion that Lieutenant Allaire’s testimony
was in fact not relevant. However, we simply cannot reconcile this assertion with
the relevance standard. Lieutenant Allaire’s deposition was the organizational
deposition for the Sheriff’s office. Thus, his testimony that Deputy Harvey was at
fault for the accident and could have prevented the accident was the testimony of the
defendant in the lawsuit. The defendant admitting that it was at fault for an accident

                                           14
169 (Fla. 6th DCA 2024) (finding that the record was not insufficient to determine

that the trial court did not base its ruling on a particular legal ground even without a

transcript of the relevant hearing where both parties contended that the trial court did

not reach that issue).

      Having conceded that the trial court did not exclude Lieutenant Allaire’s

testimony under Rule 403, the Sheriff argues that we should affirm the trial court’s

ruling under the tipsy coachman doctrine because Lieutenant Allaire’s deposition

testimony was in fact properly excludable under Rule 403. We decline to do so,

however, because we conclude that where a trial court has not conducted a Rule 403

analysis, an appellate court cannot do so in the first instance.

      “Under the tipsy coachman doctrine, where the trial court reaches the right

result, but for the wrong reasons, an appellate court can affirm the decision only if

there is any theory or principle of law in the record which would support the ruling.”

Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010) (quoting Robertson v. State, 829 So.

2d 901, 906 (Fla. 2002) (internal quotations omitted, emphasis in original)); see also

Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“The



and that it could have prevented the accident is certainly “evidence tending to prove”
negligence by the defendant, even if it is not dispositive of that question, just as a
defendant’s testimony that it was not at fault and could not have prevented an
accident would tend to disprove negligence. § 90.401, Fla. Stat. Under the
governing standard, the defendant’s own determination that it was at fault for a car
accident and that it could have prevented the accident is just obviously relevant to
whether the defendant was negligent with respect to that accident.

                                          15
written final judgment by the trial court could well be wrong in its reasoning, but the

decision of the trial court is primarily what matters, not the reasoning used. . . . Even

when based on erroneous reasoning, a conclusion or decision of a trial court will

generally be affirmed if the evidence or an alternative theory supports it.”).

      The tipsy coachman doctrine flows naturally from the presumption of

correctness. Applegate, 377 So. 2d at 1152 (“In appellate proceedings the decision

of a trial court has the presumption of correctness and the burden is on the appellant

to demonstrate error.”).      An appellant cannot overcome the presumption of

correctness and demonstrate error if there is some reason that the trial court’s

judgment was in fact correct, even if that reason was not argued to the trial court or

the appellate court. See Cohen v. Mohawk, Inc., 137 So. 2d 222, 225 (Fla. 1962) (“It

should be kept in mind that the judgment of the trial court reached the district court

clothed with a presumption in favor of its validity. . . .Accordingly, if upon the

pleadings and evidence before the trial court, there was any theory or principle of

law which would support the trial court’s judgment in favor of the plaintiffs, the

district court was obliged to affirm that judgment. (internal citations omitted,

emphasis in original)); Chase v. Cowart, 102 So. 2d 147, 150 (Fla. 1958) (on

rehearing, discussing the appellant’s objection to the Court having affirmed on a

ground not raised by the appellee, “This is easily explained. Decrees and judgments

in cases which come to an appellate court for review are presumed to be correct and



                                           16
free from error. We are required to uphold the lower court if valid grounds exist

therefor. While the grounds or reasoning used by the trial court or chancellor are

frequently helpful to an appellate court on review, they are not controlling. The

decision of the appellate court must be made, not on the basis of whether the trial

court or chancellor traveled the proper route, used proper reasoning, or laid his

conclusion on proper grounds, but rather on whether his conclusion is correct or

incorrect.”); State v. Hankerson, 65 So. 3d 502, 505 (Fla. 2011), as revised on denial

of reh’g, (June 30, 2011) (“[B]ecause a trial court’s ruling must be affirmed where

the record supports any legal basis for the judgment, an appellee may raise an

argument on appeal that was not raised in the trial court so long as the argument has

a reasonable basis in the record.”); Beans v. Beans, 407 So. 3d 483, 491 n.8 (Fla. 1st

DCA 2024), reh’g denied, (Apr. 30, 2025) (“The ‘principle of preservation’ is not

in play when an appellate court affirms. . . . [T]he theories or reasons assigned by

the lower court as its basis for the order or judgment appealed from are not in any

way controlling on appeal and the Appellate Court will make its own determination

as to the correctness of the decision of the lower court.” (quoting In re Yohn’s Est.,

238 So. 2d 290, 295 (Fla. 1970) (internal alterations omitted))); Freeman v. State,

373 So. 3d 1255, 1257 n.2 (Fla. 1st DCA 2023) (“[A]n appellee need not present to

the trial court the grounds on which the appellate court affirms the trial court’s ruling.

. . . And an appellee need not present to the appellate court the grounds for affirming



                                           17
the judgment of the trial court. . . . Indeed, the appellate court may affirm even when

the appellee does not serve an answer brief.” (citing Dade Cnty. Sch. Bd. v. Radio

Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) and MacNeill v. O’Neal, 238 So. 2d

614, 615 (Fla. 1970))); Hicks v. State, 277 So. 3d 153, 156 n.3 (Fla. 1st DCA 2019)

(“Nor can we accept the dissent’s view that we are acting unfairly by ‘sua sponte

raising new issues.’ There is a difference between raising new grounds for reversal

(which we should not do) and affirming based on any basis the record supports

(which we must do). It is the appellant’s burden to show we must reverse, and he

cannot meet that burden without overcoming all bases for affirmance.” (cleaned

up)); State v. Pitts, 936 So. 2d 1111, 1133 (Fla. 2d DCA 2006) (stating that under

the tipsy coachman doctrine, an appellate court should affirm the trial court “even if

the specific grounds articulated by the trial court were erroneous” and “even if the

specific basis for affirmance has not been articulated by the appellee” (citations

omitted)); State v. Sims, 110 So. 3d 113, 116 (Fla. 1st DCA 2013) (“An appellate

court has authority to consider an argument not made on appeal as an alternative

basis for affirmance.” (citing Dade Cnty. Sch. Bd., 731 So. 2d 638)); Jaworski v.

State, 804 So. 2d 415, 419 (Fla. 4th DCA 2001), on reh’g, (Dec. 26, 2001) (“As an

appellate court, however, we are obligated to entertain any basis to affirm the

judgment under review, even one the appellee has failed to argue.”).




                                          18
      However, “[t]he key to the application of [the tipsy coachman doctrine] is that

there must have been support for the alternative theory or principle of law in the

record before the trial court.” Robertson, 829 So. 2d at 906-07. “In the absence of

support in the trial court record, the ‘tipsy coachman’ doctrine does not apply.”

Porter v. Porter, 913 So. 2d 691, 694 (Fla. 3d DCA 2005); see also Hankerson, 65

So. 3d at 505 (“A trial court’s ruling should be upheld if there is any legal basis in

the record which supports the judgment.” (emphasis added)); Guglielmo v. DOC

Zephyrhills C I/ Div. of Risk Mgmt., 418 So. 3d 656, 666 (Fla. 1st DCA 2025)

(“Although the ‘tipsy-coachman’ doctrine allows this Court to affirm a trial court

judgment that is ‘right for the wrong reason,’ the record must support the theory or

argument.”).

      The question in this case is whether the record supports this court employing

Rule 403 to affirm the trial court’s decision to exclude Lieutenant Allaire’s

testimony. We conclude that the nature of Rule 403 is such that where the trial court

did not perform a Rule 403 analysis, an appellate court cannot conduct such an

analysis in the first instance in order to affirm a trial court under the tipsy coachman

doctrine.

      Rule 403 provides that “Relevant evidence 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.” §



                                          19
90.403, Fla. Stat. (2025). Whether to exclude evidence under Rule 403 is inherently

and necessarily a discretionary decision by a trial court. Eugene v. State, 53 So. 3d

1104, 1112 n.3 (Fla. 4th DCA 2011) (“[W]hether evidence is admissible under

section 90.403, Florida Statutes (2008), is a discretionary ruling of a trial court.”);

State v. McClain, 525 So. 2d 420, 422 (Fla. 1988) (“This statute compels the trial

court to weigh the danger of unfair prejudice against the probative value. In applying

the balancing test, the trial court necessarily exercises its discretion.”); Taylor v.

State, 855 So. 2d 1, 22 (Fla. 2003) (“[A] large measure of discretion rests in the trial

judge to determine whether the probative value of the evidence is substantially

outweighed by its prejudicial effect.”). That is why a trial court’s decision of

whether or not to exclude evidence under Rule 403 is reviewed by an appellate court

for abuse of discretion. State v. Gerry, 855 So. 2d 157, 159-60 (Fla. 5th DCA 2003).

      In determining whether to exclude evidence under Rule 403, the trial court

“must weigh the proffered evidence against the other facts in the record and balance

it against the strength of the reason for exclusion.” McClain, 525 So. 2d at 422

(quoting 1 Charles W. Ehrhardt, Florida Evidence, § 403.1 100-03 (2d ed. 1984));

see also Gerry, 855 So. 2d at 160 (“[A] balancing test must be utilized where the

probative value for the party seeking to introduce the evidence is weighed against

the danger of unfair prejudice to the party who objects to the introduction of the

evidence.”). To conduct this balancing test, the trial court considers “the need for



                                          20
the evidence; the tendency of the evidence to suggest an improper basis to the jury

for resolving the matter, e.g., an emotional basis; the chain of inference necessary to

establish the material fact; and the effectiveness of a limiting instruction.” Taylor,

855 So. 2d at 22 (quoting McClain, 525 So. 2d at 422).

       The nature of a court exercising discretion based on the specific facts and

evidence at issue in a case dictates “that the same item of evidence may be admissible

in one case and not in another, depending upon the relation of that item to the other

evidence.” McClain, 525 So. 2d at 422. And the nature of discretion itself is such

that there may be cases in which a trial court could choose to admit or exclude an

item of evidence under Rule 403, and either decision would be within its discretion.

After all, if there is never more than one right answer, then there is no discretion.

See Tran v. Toyota Motor Corp., 420 F.3d 1310, 1315-16 (11th Cir. 2005) (“Under

the abuse of discretion standard of review there will be occasions in which we affirm

the [trial] court even though we would have gone the other way had it been our call.”

(quoting Rasbury v. Internal Revenue Serv., 24 F.3d 159, 168 (11th Cir. 1994)

(internal alterations omitted))); United States v. Kelly, 888 F.2d 732, 745 (11th Cir.

1989) (“The abuse of discretion standard has been described as allowing a range of

choice for the [trial] court . . .”).

       Because a decision of whether to exclude evidence under Rule 403 is

inherently a discretionary decision of a trial court based on the specific facts and



                                          21
evidence at issue in a case, it is not appropriate for an appellate court to make this

decision in the first instance. The record before the appellate court cannot support

such a decision because the appellate court simply cannot know which way the trial

court would have exercised its discretion. We may be able to determine whether a

decision to exclude evidence would have been within the trial court’s discretion, but

we cannot determine whether the trial court would have actually exercised its

discretion in that manner. 6

      Moreover, not only are we unable to determine how the trial court would have

exercised its discretion, but we are also not in the same position as the trial court

would be to exercise that discretion ourselves – because when the trial court

considers all of the evidence and facts in a case to perform the balancing test required

by Rule 403, that will necessarily include consideration of evidence and facts that

the trial court is uniquely positioned to evaluate, such as live testimony that has




      6
         Judge Wozniak asserts that any ruling by the trial judge under Rule 403
admitting Lieutenant Allaire’s testimony would in fact have been an abuse of
discretion, and that such a ruling on remand consequently “would be fertile for
reversal.” We simply disagree that, on this record, we can conclude that no
reasonable trial judge that conducted a Rule 403 analysis would have admitted
Lieutenant Allaire’s testimony. The case relied upon by Judge Wozniak, Kutner v.
State, Dep’t of Highway Safety & Motor Vehicles, 568 So. 2d 973 (Fla. 3d DCA
1990), did not involve testimony of the defendant’s organizational representative in
which the defendant admitted fault for the car accident that was the subject of the
lawsuit. A defendant’s own admission that it could have prevented an accident and
that it was at fault for the accident is certainly highly probative of whether the
defendant was negligent with respect to the accident.

                                          22
occurred in the case and the jury’s reaction to particular witnesses and items of

evidence. We are simply not in the same position as a trial court to conduct a Rule

403 balancing determination in the first instance.        Appellate courts review

discretionary decisions as to the admission of evidence; we do not make such

decisions in the first instance.

      Because an appellate court cannot determine from the record whether the trial

court would have exercised its discretion to exclude particular evidence under Rule

403, and an appellate court cannot conduct an analysis in the first instance in the

same manner as a trial court would, we conclude that where a trial court has not

performed a Rule 403 analysis to exclude a particular item of evidence, the record

cannot support affirming a trial court’s decision to exclude the evidence based on

Rule 403. Since the record does not support excluding the evidence under Rule 403,

we cannot apply the tipsy coachman doctrine to affirm the trial court’s exclusion of

evidence on that basis. See Webster v. Body Dynamics, Inc., 27 So. 3d 805, 809 n.

12 (Fla. 1st DCA 2010).

      We find support for our decision in the Florida Supreme Court’s decision in

Robertson. 829 So. 2d 901. In Robertson, the Supreme Court declined to employ

the tipsy coachman doctrine to affirm the admission of evidence concerning prior

crimes of the defendant under section 90.404(2), Florida Statues, also known as the

Williams rule, in part, because the trial court did not make the determinations



                                        23
necessary for the evidence to be admitted under the Williams rule, which included

both factual findings and discretionary determinations, such as “whether the

prejudicial effect of the prior crime substantially outweighs its probative value.” Id.

at 907-08. 7

      We also find support for our conclusion in the decisions of our sister courts

holding that grounds for affirmance that require factual findings by a trial court

cannot serve as a basis to affirm under the tipsy coachman doctrine where the trial

court did not make the required factual findings. See, e.g., Featured Props., LLC v.

BLKY, LLC, 65 So. 3d 135, 137 (Fla. 1st DCA 2011) (“[W]e cannot employ the tipsy

coachman rule where a lower court has not made factual findings on an issue and it

would be inappropriate for an appellate court to do so.” (quoting Bueno v. Workman,

20 So. 3d 993, 998 (Fla. 4th DCA 2009) (internal alterations, quotations omitted)));

Ruiz v. Policlinica Metropolitana, C.A., 260 So. 3d 1081, 1091 (Fla. 3d DCA 2018)



      7
         Judge Wozniak asserts that “Robertson plainly stands for the rule that an
appellate court cannot undertake a tipsy coachman analysis to affirm a trial court’s
ruling when the inquiry is fact-intensive and there is no development in the record
of those facts.” Robertson does not say that, plainly or otherwise. Robertson does
state that it was improper for a district court to employ the tipsy coachman doctrine
to affirm the admission of evidence under the Williams rule, in part, because the trial
court did not make the determinations necessary for the evidence to be admitted
under the Williams rule, including “whether the prejudicial effect of the prior crime
substantially outweighs its probative value.” Robertson, 829 So. 2d at 907-08. This
appears to be why the Fifth District also relied on Robertson in concluding that the
tipsy coachman doctrine could not be employed to affirm the exclusion of evidence
under Rule 403 where the trial court never conducted a Rule 403 analysis. Gerry,
855 So. 2d at 163 n.5.

                                          24
(The tipsy coachman doctrine “is inapplicable where a lower court has not made

factual findings on an issue.” (quoting Harris v. State, 238 So. 3d 396, 403 (Fla. 3d

DCA 2018) (internal quotations omitted))). Just as an appellate court is not equipped

to make factual findings in the first instance, an appellate court likewise is not

equipped to exercise discretion regarding the admission or exclusion of evidence in

the first instance.

       We finally note that our decision is in accord with the Fifth District and at

least one decision of the First District, but is in conflict with two other decisions of

the First District. 8 In Gerry, the Fifth District, also relying on Robertson, concluded

that there was no support in the record to employ the tipsy coachman doctrine to

affirm a trial court’s exclusion of evidence under Rule 403 where the trial court

“never engaged in the weighing process under section 90.403 to determine whether



       8
        Our decision is also in accord with the United States Supreme Court, which,
applying the federal version of Rule 403, has held, in a unanimous opinion written
by Justice Clarence Thomas, that an appellate court should not conduct a Rule 403
analysis where the trial court has not done so. Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 386-87 (2008) (“The Court of Appeals, upon concluding
that such evidence was not per se irrelevant, decided that it was relevant in the
circumstances of this case and undertook its own balancing under Rule 403. But
questions of relevance and prejudice are for the [trial court] to determine in the first
instance. Rather than assess the relevance of the evidence itself and conduct its own
balancing of its probative value and potential prejudicial effect, the Court of Appeals
should have allowed the [trial court] to make these determinations in the first
instance, explicitly and on the record. With respect to evidentiary questions in
general and Rule 403 in particular, a [trial] court virtually always is in the better
position to assess the admissibility of the evidence in the context of the particular
case before it.” (internal citations omitted)).

                                          25
the evidence should be excluded.” 855 So. 2d at 163 n.5. Likewise, in Webster, the

First District declined to apply the tipsy coachman doctrine to affirm a trial court’s

exclusion of evidence under Rule 403 because “[t]he weighing contemplated by

section 90.403 is for the trial court, in the first instance, and here the trial court ruled

the subsequent ban altogether irrelevant, so that no weighing took place below.” 27

So. 3d at 809 n.12.

       In two decisions issued prior to and after Webster, respectively, the First

District took a different position. In Childers v. State, the First District, sitting en

banc, applied the tipsy coachman doctrine to affirm the trial court’s exclusion of

evidence under Rule 403 even though the trial court had not made any determination

under Rule 403. 936 So. 2d 585, 592-93 (Fla. 1st DCA 2006). The court did so

without engaging in any discussion as to the propriety of employing the tipsy

coachman doctrine to affirm under Rule 403 where the trial court made no

determination as to whether the evidence should have been excluded under Rule 403.

Id. On rehearing, then-Chief Judge Kahn expressed his disagreement with the

court’s use of the tipsy coachman doctrine to affirm the exclusion of evidence under

Rule 403 based on similar reasoning to that which we articulated above. Childers v.

State, 936 So. 2d 619, 637 (Fla. 1st DCA 2006) (Kahn, C.J., dissenting). Judge Kahn

asserted that “If any one statute on the books in Florida, and particularly any statute

in the Evidence Code, begs the exercise of sound discretion by a trial judge, it is



                                            26
section 90.403.” Id. He also noted that the appellate court’s application of Rule 403

in the first instance resulted in that determination not being subject to appellate

review by any court under any standard:

      By its application of the “tipsy coachman” rule in the present case, the
      majority has essentially applied a trial court standard of discretion in a
      case where the trial court never exercised discretion itself. As a result,
      this court’s application of its own discretion under section 90.403 is not
      subject to review under any standard and, arguably, the whole purpose
      of the statute has been defeated because the trial court has never made
      the critical, initial consideration. One struggles to understand how this
      court can weigh in on an abuse of discretion question in the absence of
      a trial court’s exercise of discretion.

Id. Judge Kahn felt sufficiently strong about the issue that he urged the certification

of the following question of great public importance:

      May a district court of appeal utilize the “tipsy coachman” doctrine by
      applying section 90.403, Florida Statutes, in a case where the trial court
      has never exercised its discretion concerning the admissibility of the
      particular evidence in question?

Id. at 638. Judge Kahn was correct that if an appellate court were to employ the

tipsy coachman doctrine by applying Rule 403 where the trial court has not done so,

the appellate court’s determination would not be subject to appellate review by any

court, absent the rare case in which the Florida Supreme Court possessed and chose

to exercise jurisdiction over the case.

      While Webster was issued by the First District after Childers and may

potentially create doubt as to whether Childers remains the law of the First District,

the First District relied on Childers in Mizell v. State, a case issued after Webster, to

                                           27
again apply the tipsy coachman doctrine to affirm a trial court’s exclusion of

evidence under Rule 403 where the trial court did not make any determination as to

whether the evidence should be excluded under Rule 403. 350 So. 3d at 102. Thus,

the most recent decision from the First District on this issue reaffirms Childers’s

holding that an appellate court can apply the tipsy coachman doctrine to affirm a

trial court’s exclusion of evidence under Rule 403 where the trial court did not make

any determination as to whether the evidence should be excluded under Rule 403.

The Mizell court reaffirmed Childers’s holding without discussing Webster or

examining the propriety of employing the tipsy coachman doctrine to affirm under

Rule 403 where the trial court did not conduct any analysis under Rule 403. See 350

So. 3d at 102. For the reasons stated herein, we respectfully disagree with the Mizell

and Childers courts on this point, and, as a result, pursuant to Article V, Section

3(b)(4) of the Florida Constitution, we certify this decision to be in direct conflict

with those decisions.

                                    Conclusion

      The legal grounds relied upon by the trial court to exclude Lieutenant Allaire’s

deposition testimony did not support exclusion of the testimony. For the reasons

detailed above, the record does not support employing the tipsy coachman doctrine

to affirm the trial court’s exclusion of Lieutenant Allaire’s testimony under Rule

403. For these reasons, the final judgment is reversed, and this case is remanded for



                                         28
a new trial. At the new trial, if the Sheriff objects to the admission of Lieutenant

Allaire’s deposition testimony under Rule 403, the trial court may conduct a Rule

403 analysis to determine whether all or any portion(s) of Lieutenant Allaire’s

testimony should be excluded.

      REVERSED and REMANDED; CONFLICT CERTIFIED.

GANNAM, J., concurs.
WOZNIAK, J., concurs in part and dissents in part, with opinion.

                       _____________________________


 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING
          AND DISPOSITION THEREOF IF TIMELY FILED

                       _____________________________


WOZNIAK, J., concurring in part, dissenting in part.

      I agree with the majority insofar as it concludes that the trial court’s stated

reasons for excluding Lt. Allaire’s testimony were incorrect; the testimony does not

fall squarely within the accident report privilege of section 316.066(4), Florida

Statutes (2023), the subsequent remedial measure exclusion of section 90.407,

Florida Statutes (2023), or the traffic citation exclusion of section 316.650(9),

Florida Statutes (2023). However, I would still affirm under the tipsy coachman

doctrine because Lt. Allaire’s testimony in this admittedly fully developed record

was excludable as irrelevant under sections 90.401 and 90.402, Florida Statutes



                                        29
(2023), or even if relevant, excludable under section 90.403, Florida Statutes (2023).

Accordingly, I decline to join the majority’s opinion to the extent that it concludes

to the contrary.

       I begin by addressing relevancy and section 90.403, then move on to explain

why the tipsy coachman doctrine applies to permit affirmance.

       It is axiomatic that “[i]n order to be admissible, evidence must be relevant.

That is, the evidence must ‘tend[ ] to prove or disprove a material fact.’ § 90.401,

Fla. Stat. (2012).” Okafor v. State, 225 So. 3d 768, 773 (Fla. 2017) (quoting Davis

v. State, 207 So. 3d 177 (Fla. 2016)). Consequently, irrelevant evidence is

inadmissible. Even if evidence is relevant, several rules of evidence, such as section

90.403, still prohibit the introduction of such evidence. The first step of a section

90.403 analysis is a relevance inquiry. See § 90.403, Fla. Stat. (making relevant

evidence “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”). Only if evidence is indeed relevant is the

balancing test employed to determine whether its probative value is outweighed by

its unfairly prejudicial effect.

       I do not believe that Lt. Allaire’s testimony clears this first step of relevance.

Lt. Allaire, as a member of the traffic safety board, investigated Dep. Harvey’s

conduct in the underlying accident. The traffic safety board determined, as the



                                           30
majority notes, that the collision was a “preventable crash.” This determination, Lt.

Allaire explained, is assigned “where the agency member operating the vehicle could

have done something to -- on his part of his operation of the vehicle [--] to avoid the

crash.” It is this determination and explanation that Caballero-Quinones sought to

bring before the jury. Unclear, however, is how such a post-accident determination,

using a standard inapplicable to a negligence query, 9 could tend to “prove or

disprove a material fact” to a jury determining negligence. Presumably, the same

facts available to the jury were also available to the traffic safety board; the

determination made by the traffic safety board following its investigation is nothing

other than its own characterization of those facts. It neither proves nor disproves any

fact properly before the jury.

      Even if, however, such a determination could be relevant, the danger of unfair

prejudice is both readily apparent and abundant and would outweigh any potential

probative value. The jury was empaneled for the sole purpose of determining the

Sheriff’s Office’s negligence. Doubtless this purpose would have been abrogated by

the jury’s substitution of the traffic safety board’s conclusion for its own. Indeed, I




      9
         “[C]ould have done something” is not equivalent to a finding that a
defendant failed to exercise reasonable care under the circumstances and that such a
failure caused the damages at issue.


                                          31
do not see how any proper exercise of discretion could lead to Lt. Allaire’s testimony

being admitted. 10

      Caballero-Quinones, for his part, argues only that there is nothing “unfairly

prejudicial about” Lt. Allaire’s testimony; he fails to elaborate beyond this

proclamation. Indeed, the record is devoid of any argument in opposition to applying

section 90.403. Caballero-Quinones filed no response to the Sheriff’s Office’s

motion in limine, which raised section 90.403; no transcript of the motion in limine

hearing    exists;   and   Caballero-Quinones’s   argument     wherein    he   sought

reexamination of the trial court’s earlier ruling was primarily confined to whether

Lt. Allaire’s testimony was an admission under section 90.803(18), which would be

dispositive only insofar as the trial court had excluded such evidence because it

constituted hearsay. But, Caballero-Quinones now receives a windfall: a new trial.

On remand, should the trial court now properly exclude the evidence under section

90.403, then there is no functional difference between the first and second trials—



      10
         I find persuasive Kutner v. State, Department of Highway Safety & Motor
Vehicles, 568 So. 2d 973, 974 (Fla. 3d DCA 1990), wherein the Third District
determined that the trial court properly excluded evidence of an administrative
disciplinary proceeding against a trooper, finding that “the probative value of such
proceedings was substantially outweighed by the danger of unfair prejudice. §
90.403, Fla. Stat. (1989).” Here, like the plaintiff in Kutner, Caballero-Quinones was
injured in an accident involving a police vehicle. Then, the officer driving, Dep.
Harvey, was found to be at fault for the accident and in violation of agency policy—
because he could have done something—as a result of an administrative proceeding
or assessment. Unremarkably, as in Kutner, the evidence should have been excluded
under section 90.403.

                                         32
the exact same evidence would be presented to the jury in both. If, on the other hand,

the trial court admits the evidence, then such a ruling would be fertile ground for

reversal.

      Having concluded that application of section 90.403 would mandate exclusion

of Lt. Allaire’s deposition testimony, I turn now to explain why the tipsy coachman

doctrine applies. The doctrine is available if the trial court ruled correctly, even if

for the wrong reasons, “as long as the evidence or an alternative theory supports the

ruling.” Muhammad v. State, 782 So. 2d 343, 359 (Fla. 2001); see Caso v. State, 524

So. 2d 422, 424 (Fla. 1988) (“A conclusion or decision of a trial court will generally

be affirmed, even when based on erroneous reasoning, if the evidence or an

alternative theory supports it.” (first citing Applegate v. Barnett Bank of

Tallahassee, 377 So. 2d 1150 (Fla. 1979); and then citing Cohen v. Mohawk,

Inc., 137 So. 2d 222 (Fla. 1962))). Here, the facts were sufficiently developed for a

section 90.403 analysis (an alternative theory to affirm the trial court’s ruling), as

both parties conceded at oral argument. Although the trial court did not expressly

undertake that analysis, the alternative theory would sustain the trial court’s

exclusion of Lt. Allaire’s deposition.

      I would break no new ground by affirming by application of a tipsy coachman

analysis. See Childers v. State, 936 So. 2d 585 (Fla 1st DCA 2006) (en banc)

(affirming under tipsy coachman analysis the trial court’s exclusion of evidence



                                          33
where trial court’s basis for exclusion was incorrect but exclusion was proper under

section 90.403); Mizell v. State, 350 So. 3d 97, 102 (Fla. 1st DCA 2022) (“While the

trial court did not rely on section 90.403, and this rationale, we may consider this

logic and legal authority in affirming the judgment.” (citing Childers, 936 So. 2d at

593-96)). Indeed, tipsy coachman has been used to affirm rulings involving the

exercise of a trial court’s discretion on fact-intensive decisions, so long as the record

has been fully developed. See, e.g., Koonce v. State, 425 So. 3d 6 (Fla. 4th DCA

2025) (affirming, by application of tipsy coachman, admission of testimony of prior

sexual offenses; admission was supported by section 90.404(2) although that statute

was not argued by state); Riley v. State, 293 So. 3d 34 (Fla. 2d DCA 2020)

(affirming, by application of tipsy coachman, trial court’s direct criminal contempt

order although trial court had improperly relied solely on unverified statements by

bailiffs; evidence showed that trial court had itself observed defendant’s

noncompliance with court’s instruction, thus supporting contempt order); Ruff v.

State, 115 So. 3d 1023 (Fla. 4th DCA 2013) (affirming, by application of tipsy

coachman, the admission of statement to co-worker as a spontaneous statement,

which argument was first presented on appeal).

      The majority’s analysis of Robertson v. State, 829 So. 2d 901 (Fla. 2002),

does not change my conclusion. In Robertson, the Florida Supreme Court considered

an appellate court’s affirmance of the admission of testimony on alternative fact-



                                           34
intensive Williams rule grounds. The decision turned on whether the record was fully

developed such that the appellate court could properly make a Williams rule 11

determination and affirm by application of the tipsy coachman doctrine, with the

supreme court concluding it was not. Robertson plainly stands for the rule that an

appellate court cannot undertake a tipsy coachman analysis to affirm a trial court’s

ruling when the inquiry is fact-intensive and there is no development in the record

of those facts. It would be, in my opinion, pointless to reverse a judgment rendered

following a four-day jury trial where no new facts are contemplated to be produced

on remand.



      11
           The Williams rule is codified in section 90.404(2)(a), Florida Statutes:

            Similar fact evidence of other crimes, wrongs, or acts is
      admissible when relevant to prove a material fact in issue, such as 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.

       The Williams rule requires the trial court to make “multiple determinations”
before admitting Williams rule evidence; this “highly individualized, factually
intensive inquiry” requires consideration of

             whether the defendant committed the prior crime, whether the
      prior crime meets the similarity requirements necessary to be relevant
      as set forth in our prior case law, whether the prior crime is too remote
      so as to diminish its relevance, and finally, whether the prejudicial
      effect of the prior crime substantially outweighs its probative value.

      Robertson, 829 So. 2d at 907-08. This fact intensive inquiry is required to
protect a defendant’s due process right not to be convicted of an uncharged crime.
Morgan v. State, 146 So. 3d 508, 512 (Fla. 5th DCA 2014).

                                           35
      Separately, I write to call the Legislature’s attention to the chilling effect the

majority’s ruling will have on internal reviews. Public policy should favor candid

self-reflection, but allowing admission of the traffic safety board’s conclusion opens

the door to undesirable consequences. What motive will any employer have to

engage in honest and forthright post-incident investigations if the outcome can be

used against it at trial? The purpose of self-investigation, in addition to any

disciplinary measures, is to provide the employer with information it can use to hone

its focus to better prevent such accidents in the future—an outcome that benefits

society. For this reason, the Legislature may wish to consider a statutory amendment

to clarify that internal investigations are not subject to admission at trial.

                         _____________________________


Justin Bleakley, of Martinez Manglardi, P.A., Kissimmee, for Appellant.

Barbara W. Davis, of Barbara W. Davis, Attorney at Law, Lakeland, for Appellee,
Sheriff Grady Judd, in his official capacity as Sheriff of Polk County.

No Appearance for Appellees, Kyle T. Wilder and Wilder Outdoors, LLC.




                                           36