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Filing # 107564602 E-Filed 05/15/2020 07:02:27 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR OSCEOLA COUNTY
STATE OF FLORIDA CASE NO.: 49-2019-CF-003738-O
Plaintiff, 49-2019-CF-004126-O
v. DIVISION: 201
CHRISTOPHER J. OTERO-RIVERA, and
ANGEL LUIS RIVERA,
Defendants.
STATE’S SUPPLEMENTAL NOTICE OF INTENT TO INTRODUCE EVIDENCE OF
OTHER CRIMES, WRONGS OR ACTS REGARDING THE MURDER OF NICOLE
MONTALVO & SUPPORTING MEMORANDUM OF LAW
COMES NOW, the State of Florida, by and through the undersigned Designated
Assistant State Attorney, presenting this Memorandum of Law in Support of the State’s Notice
of Intent to Introduce Evidence of Other Crimes, Wrongs or Acts Regarding the Murder of
Nicole Montalvo (“Notice”), stating as follows:
1. On October 23, 2019, law enforcement was asked to conduct a welfare check on Nicole
Yvonne Montalvo whom friends and family believed was missing. Law enforcement located
human remains, subsequently identified as those of Ms. Montalvo, on the property located at
3925 Hixon Avenue in St. Cloud, Florida on October 24, 2019. Defendant and Co-Defendant,
his father Angel Rivera, were both residing on that property when Ms. Montalvo’s remains were
found and for at least several months beforehand.
2. The investigation into Ms. Montalvo’s death resulted in circumstantial evidence that
Defendant and Co-Defendant Rivera murdered Nicole Montalvo. The Osceola County grand
jury indicted Defendant for Second Degree Murder and other offenses on March 5, 2020. The
State filed an Information charging Co-Defendant Rivera with Second Degree Murder and other
offenses on April 20, 2020.
3. On March 20, 2020, Assigned State Attorney Brad King filed the State’s Notice
outlining the specific incidents and “other crimes, wrongs or acts” the State intends to introduce
to establish Defendant and Co-Defendant’s motive and intention to kill Nicole Montalvo. In
sum, that Notice lays out Defendant’s Domestic Violence Battery on Nicole Montalvo on June 6,2016, his Kidnapping, Robbery, and Battery of Nicole Montalvo on October 4, 2018, and Ms.
Montalvo’s seeking and being granted an injunction against Defendant in October of 2018.
4. So that the Court may engage in the most complete and thorough legal analysis
necessary to reach the correct determination on the admissibility of this evidence, the State
hereby notices the Court and Defendant of its intention to call the following witnesses, listing
also the testimony and specific evidence it intends to admit through each at the hearing on this
Motion and at trial, as follows:
a. Elaine Montalvo—Mts. Montalvo will testify she was the mother of victim Nicole
Montalvo and mother-in-law of Defendant. Mrs. Montalvo will testify to calling
emergency services on behalf of Nicole on the night of June 6, 2016 and in response to
Nicole’s request for help following Defendant’s Domestic Violence Battery on her. She
will testify to spontaneous statements Nicole made to her upon arriving at her residence
and to the injuries on Nicole’s person she observed when she arrived.
Mrs. Montalvo will also testify to contact she had with Nicole on the early morning hours
of October 4, 2018 when Nicole returned to her residence following a Kidnapping, Battery,
and Robbery at the hands of Defendant and Defendant’s then girlfriend Toni Rocker.
Specifically, Ms. Montalvo will testify to excited utterances Nicole made to her in the
home and to her observation of injuries she observed on Nicole’s body.
Finally, Ms. Montalvo will testify to Nicole’s seeking and being granted an injunction
against Defendant in October of 2018, as well as to Nicole filing for divorce from
Defendant shortly thereafter. The State intends to admit the following exhibits through the
testimony of Elaine Montalvo:
i. Certified Petition for Dissolution of Marriage signed and dated December
18, 2018 and filed February 4, 2019 in 49-2019-DR-484-DC.
ii. Certified "Service Worksheet and Return of Service" in 49-2019-DR-484-
DC.
iii. Composite photographs of victim Nicole Montalvo taken by law
enforcement on June 6, 2016 documenting her injuries.
iv. Certified medical records documenting Nicole Montalvo's treatment at the
St. Cloud Regional Medical Center on October 4, 2018.v. CDR containing audio of 911 call of Elaine Montalvo made on June 6,
2016 regarding Nicole Montalvo's being battered by co-defendant
Christopher Otero-Rivera.
b. Brittany Hemmerich—Ms. Hemmerich will testify she was present at the residence
Nicole Montalvo shared with Defendant on June 6, 2016 when she witnessed Defendant
headbutt Nicole, grab her by the hair, and strike her several times in the face before
fleeing the scene prior to law enforcement’s arrival.
c. Deputy Lucas Castillo—Deputy Castillo will testify to responding to a call for
service regarding Domestic Violence Battery at 4700 Citrus Dr. in St. Cloud, Florida on
June 6, 2016. He will state he met with Nicole Montalvo that morning and testify to
excited utterances Nicole made in his presence regarding the Battery, as well as to the
injuries on Nicole’s body he observed.
d. Christina Montalvo—Ms. Montalvo will testify she was the sister of victim Nicole
Montalvo and sister-in-law of Defendant. Ms. Christina Montalvo will testify she was
present at her residence where she lived with Nicole and her parents in the early morning
hours of October 4, 2018 when Nicole arrived home following her Kidnapping and
Battery at the hands of Defendant and Toni Rocker. Ms. Montalvo will testify to excited
utterances made by Nicole Montalvo in her presence, to Nicole’s demeanor, and to the
injuries she observed on Nicole’s person. Christina Montalvo will also testify to calling
911 to obtain assistance for Nicole that night. The State intends to admit the following
exhibits during Christina Montalvo’s testimony:
i. CDR containing the audio recording of the 911 call of Christina Montalvo
made on October 4, 2018 regarding Nicole Montalvo's Kidnapping by
Defendant Christopher Otero-Rivera and Toni Rocker.
ii. Composite photographs of Nicole Montalvo's injuries from her kidnapping
on October 4, 2018.
e. Tammy Ervin & Amy Godoy!—Court reporters called solely to authenticate the audio
! The State will request a stipulation to admission of these items in an attempt to avoid the testimony of these
essentially ministerial witnesses.recording and transcript of the hearing on Nicole Montalvo’s Petition for Domestic
Violence Injunction in 49-2018-DR-04250-OS. The State intends to admit the following
exhibits during the testimony of Ms. Ervin and Ms. Godoy.
i. CDR containing audio recording of injunction hearing in 49-2018-DR-
4250-OS.
ii. Certified transcript of injunction hearing in 49-2018-DR-4250-O.
f. Ashley Ferrell—Ms. Ferrell will testify to representing victim Nicole Montalvo at the
hearing on her Petition for Domestic Violence Injunction in 49-2018-DR-04250-OS. She
will testify to Defendant’s presence at the hearing and his waiver of a proceeding based
upon the petition written and filed by Nicole Montalvo. The State intends to admit the
following exhibits during the testimony of Ms. Ferrell:
i. Certified Petition for Domestic Violence Injunction in 49-2018-DR-
04250-OS filed by Nicole Montalvo on October 5, 2018.
ii. Certified Final Judgment of Domestic Violence Injunction in 49-2018-
DR-04250-OS signed and filed by the Court October 16, 2018.
g. Deputy Robert Hansell, Jr.—Deputy Hansell will testify he responded to 1576
Cypress Woods Circle in St. Cloud on October 4, 2018 in reference to a Robbery call.
He will describe making contact with victim Nicole Montalvo at her residence, testifying
to injuries he observed and excited utterances she made regarding who had inflicted those
injuries and how they were sustained. Deputy Hansell will also testify that Defendant
and Toni Rocker arrived on scene at Nicole Montalvo’s residence while he was present
and that he participated in a search of the vehicle Ms. Rocker was driving that led to
finding items in the vehicle belonging to Nicole Montalvo. The State intends to admit the
following exhibits during the testimony of Deputy Hansell:
i. Composite photographs of the injuries he observed on victim Nicole
Montalvo upon his arrival at the scene.
ii. Composite photographs of text messages sent by Defendant to victim
Nicole Montalvo’s phone prior to and after the Kidnapping and Battery.
iii. Composite photographs of items of evidence belonging to victim Nicole
Montalvo recovered from the vehicle driven by Toni Rocker and in which
Defendant was a passenger.h. Detective Gabriel Davila—Detective Davila will testify to responding to 1576
Cypress Woods Circle in St. Cloud on October 4, 2018 as the on-call detective in the
Robbery Unit. He will testify to meeting victim Nicole Montalvo shortly before
Defendant and Toni Rocker drove up to Ms. Montalvo’s residence and were stopped.
Detective Davila will testify to his participation in the search of the vehicle in which
Defendant was riding and the discovery of items belonging to Nicole Montalvo.
Detective Davila will also testify to conducting an interview with Defendant regarding
the Kidnapping, and to his obtaining Defendant’s cell records from the night of the
incident and his “mapping” of them. The State intends to admit the following exhibits
during the testimony of Detective Davila:
i. CDR containing the audio-recorded interview of Defendant
Christopher Otero-Rivera conducted on October 4, 2018.
ii. Call detail records associated with the phone belonging to Defendant
Christopher Otero-Rivera on October 3-4, 2018.
iii. Cell phone mapping from call detail records associated with the phone
belonging to Defendant Christopher Otero-Rivera on October 3-4,
2018.
i. Dustin Gonzalez—Mr. Gonzalez will testify to being incarcerated with Defendant
at the end of 2018 and as to his discussions with Defendant regarding Defendant’s
Kidnapping and Battery of Nicole Montalvo on October 3-4, 2018. He will also testify
to Defendant’s soliciting him to plant narcotics on Nicole Montalvo in order to damage
her credibility and obtain custody of his child in exchange for arranging for Co-
Defendant Rivera to pay Mr. Gonzalez’s bond for release. Mr. Gonzalez will also testify
to Angel Rivera’s similar solicitation that also included an offer to kill Ms. Montalvo for
additional money. Finally, Mr. Gonzalez will testify Defendant told him he was present
when Toni Rocker attacked Nicole Montalvo, put a knife to her throat, and threatened her
over the custody of their child in common.
j. Edward Moffitt—Mr. Moffitt will testify he was an Assistant State Attorney for the
Ninth Judicial Circuit on July 19, 2019 when Defendant entered his plea to Tampering
with a Witness to Hinder Communication to Law Enforcement, Unlawful Possession of a
Stolen Credit or Debit Card, and Domestic Violence Battery. Mr. Moffitt will testify tothe factual basis he provided to the Court for that plea in Defendant’s presence and to
Defendant’s silence and acceptance of the facts as read. The State intends to admit the
following exhibits during the testimony of Edward Moffitt.
i. Certified transcript of the plea hearing for Defendant Christopher
Otero-Rivera in 49-2018-CF-3532-OS.
k. Aaron Rivas—Mr. Rivas will testify he acted as Defendant’s initial probation officer
once Defendant entered his plea on July 19, 2019. Mr. Rivas will simply establish the
terms of Defendant’s probation, including his being required to wear an ankle monitor
equipped with GPS to track Defendant’s movements around the property located at 3925
Hixon Avenue.
5. In addition to this evidence the State will introduce at the hearing on this Notice, the
State will introduce evidence that Defendant’s GPS monitor was found in and around areas of
the property at 3925 Hixon Avenue where portions of Nicole Montalvo’s remains were found in
the days following her disappearance.
6. The State now comes forward with the applicable law upon which this Court may rely
in admitting this evidence at trial.
MEMORANDUM OF LAW
“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401,
Fla. Stat. (2017). However, “[rjelevant 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.” § 90.403. The Florida Supreme Court
has stated the following in reference to the admissibility of evidence generally turning on the
issue of relevance:
Our initial premise is the general canon of evidence that any fact relevant to prove
a fact in issue is admissible into evidence unless its admissibility is precluded by
some specific rule of exclusion. Viewing the problem at hand from this
perspective, we begin by thinking in terms of a rule of admissibility as contrasted
to a rule of exclusion.Williams v. State, 110 So.2d 654, 658 (Fla. 1959). This is true even if the evidence consists of a
criminal defendant’s other crimes or bad acts, so long as the evidence “is probative of a material
issue other than the bad character of the accused.” LaMarca v. State, 785 So.2d 1209, 1212 (Fla.
2001) (citing Hunter v. State, 660 So.2d 244, 251 (Fla. 1995)). Evidence of other crimes or bad
acts is specifically “admissible when relevant to prove a material fact in issue, including, but not
limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident ....” § 90.404(2)(a). While weighing the relevance of any
evidence, the court must of course weigh the prejudicial effect of such evidence against its
probative value. § 90.403. However, “[a]ll of the evidence presented in a prosecution
‘prejudices’ the defendant; thus, the pertinent question is whether that prejudice is so unfair that
it should be deemed unlawful.” Lamarca, 785 So.2d at 1213 (citing Wournos v. State, 644 So.2d
1000, 1007 (Fla. 1994)).
The Florida Supreme Court laid out the considerations a trial court must address prior to
admitting Williams Rule evidence in its opinion in Robertson v. State, 829 So.2d 901 (Fla.
2002):
Before admitting Williams rule evidence, it is incumbent upon the trial court to
make multiple determinations, including 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. As the above-
mentioned requirements suggest, the determination of whether evidence properly
may be admitted as Williams rule evidence is a highly individualized, factually
intensive inquiry.
Robertson, 829 So.2d at 907-08 (internal citations omitted). When it comes to proof, “the trial
court must find that the State has proved that the defendant committed the collateral acts by clear
and convincing evidence.” McLean v. State, 934 So.2d 1248, 1256 (Fla. 2006).
Parties seeking to exclude similar fact evidence often direct the court to pervasive case
law holding that, when using such evidence to prove identity, there must be similarity between
the prior acts and the offense for which the criminal defendant is on trial. See Drake v. State,
400 So.2d 1217, 1219 (Fla. 1981) (“There must be identifiable points of similarity which
pervade the compared factual situations . . . in order for the similar facts to be relevant the points
of similarity must be so unusual as to point to the defendant.”); Kulling v. State, 827 So.2d 311,314 (Fla. 2d DCA 2002) (“The characteristics of the crime must be so unique as to constitute
‘fingerprint’ evidence.”) (citing State v. Savino, 567 So.2d 892, 894 (Fla. 1990)). This strict
similarity is not required, however, when the similar fact evidence is admitted to prove a
defendant’s motive or intent to commit the crimes charged. Torres v. State, 834 So.2d 342, 344
(Fla. 3d DCA 2003) (“While courts are strict when requiring similarity when collateral crimes
are used to prove identity, the same is not the case when they are used to prove motive.”) (citing
Finney v. State, 660 So.2d 674, 681-82 (Fla. 1995) (“Overall similarity between the facts of the
two offenses generally is necessary before the other crime evidence is considered relevant to the
issue of identity. However, such is not the case when other crime evidence is used to prove
motive.”)); Burgal v. State, 740 So.2d 82, 83 (Fla. 3d DCA 1999) (“{T]he prior incidents of
domestic violence by defendant-appellant Burgal against the victim were properly admitted into
evidence to prove motive, intent, and premeditation.”) (emphasis added). Thus, there are a
number of Florida appellate decisions affirming the admission of a defendant’s prior acts of
domestic violence against a particular victim to allow the state to prove the defendant’s motive
or intent to commit the crime.
In State v. Wright, 74 So.3d 503 (Fla. 2d DCA 2011), the state sought a writ of certiorari
to quash the trial court’s order precluding the state from admitting evidence of “Wright’s prior
acts of domestic violence against the victim” in the defendant’s trial for kidnapping with intent to
terrorize the same victim. Wright, 74 So.3d at 504. The victim specifically testified, at a hearing
on defendant’s objection to the state’s notices of intent to admit such evidence, “in detail about
the prior acts of domestic violence as well as threats Wright made against her on prior
occasions.” Jd. at 505. Additionally, the victim “testified about an incident in which she and
Wright were arguing in the car and Wright refused to let her out of the car for several hours.” Id.
The Second District Court of Appeal granted the State’s petition for the writ, holding the trial
court’s order prohibiting the evidence “departed from the essential requirements of the law.” Id.
at 504. Citing the Florida Supreme Court’s holding in Dennis v. State, 817 So.2d 741 (Fla.
2002), the Wright Court concluded that “the evidence of Wright’s prior acts of domestic violence
and threats is relevant to the issues of motive and intent.”? Wright, 74 So.3d at 506.
? It is potentially significant that the victim in Wright had “sought and obtained an injunction for protection against
domestic violence.” Wright, 74 So.3d at 504. Ms. Montalvo had also sought and been granted a similar domestic
violence injunction against Defendant. However, the Wright Court indicated that the facts had not yet beenThe Supreme Court’s holding in Dennis provides additional support for this Court’s
admission of testimony and evidence concerning Defendant’s prior batteries on victim Nicole
Montalvo. In Dennis, the defendant was convicted of First Degree Murder and sentenced to
death for killing his ex-girlfriend Timwanika Lumpkins. Dennis, 817 So.2d at 744. One of
Dennis’s arguments on appeal was that the trial court erred “in admitting collateral evidence that
he stalked, threatened, and assaulted Lumpkins” prior to her death. /d. at 761. The Supreme
Court noted that this evidence came from several of Lumpkins’ family members and friends who
recounted incidents in which Dennis would stalk Lumpkins . . . [and] [iJn sum, the evidence
depicted the turbulent and sometimes violent relationship between Dennis and Lumpkins.” /d. at
761-62. Citing Sexton v. State, 697 So.2d 833, 836-37 (Fla. 1997), the Court noted that
“{e]vidence of ‘other crimes’ is not limited to other crimes with similar facts.” Dennis, 817
So.2d at 762. After noting the “broad discretion” held by the trial court in making such
determinations of admissibility, the Court held that “[a]lthough certainly prejudicial, the
evidence of the nature of Dennis’s relationship with the victim was relevant to establish Dennis’s
motive.” Id.
The admissibility of prior acts of domestic violence is also clear from the Third District
Court of Appeal’s decision in Brown v. State, 611 So.2d 540 (Fla. 3rd DCA 1992). Like the
courts in Wright and Dennis, the Brown Court confronted a defendant’s appeal of the trial court’s
admission of testimony of prior bad acts. Specifically, that the victim “and defendant had a
rocky relationship, that there were problems with [Brown’s] jealousy, and that [Brown] did not
want anyone else in the house.” Brown, 611 So.2d at 542. The victim also testified that “the
defendant had threatened to kill her if he caught her with another man.” Jd. The Brown court
affirmed the admission of this testimony, concluding it was “proper evidence of motive, intent,
and premeditation.” Jd. (citing King v. State, 436 So.2d 50 (Fla. 1983), cert. denied, 466 U.S.
909, 104 S.Ct. 1690, 80 L.Ed.2d 163 (Fla.1984); Hyer v. State, 462 So.2d 488 (Fla. 2d DCA
1984); Goldstein v. State, 477 So.2d 903 (Fla. 4th DCA 1984)).
The State will introduce clear and convincing evidence that on June 6, 2016, Defendant
got upset with Nicole Montalvo for drinking one of his beers. His response was to headbutt Ms.
Montalvo, grab and pull her hair, and strike her in the face several times before fleeing the
developed at trial, making it unclear if the Second District Court of Appeal was affirming the admission of the
injunction or merely commenting upon it.residence and police. There will also be evidence from multiple sources that not even two years
later, on the night of October 3rd and into the early morning hours of October 4, 2018, Defendant
and Toni Rocker lured Nicole Montalvo to a dark area and physically battered her and threatened
her with a knife for the express purposes of forcing Ms. Montalvo to give Defendant custody of
their child in common and taking her money. Florida law explained through the holdings in
Wright, Dennis, and Brown make it clear these prior acts are relevant and admissible to prove
Defendant’s motive and intent to kill Nicole Montalvo as he is alleged to have done in the
Amended Information. These precedents are not the only law, however, establishing the
admissibility of Defendant’s prior batteries and abuse of Nicole Montalvo.
“Admissible evidence of uncharged crimes falls into two categories: ‘similar fact’
evidence and ‘dissimilar fact’ evidence.” Truehill v. State, 211 So.3d 930, 945 (Fla. 2017)
(quoting Victorino v. State, 23 So.3d 87, 98 (Fla. 2009)). The Truehill Court went on to explain
the basis for admitting dissimilar fact evidence:
Dissimilar fact evidence is governed by section 90.402 and has been described as
. .. evidence of uncharged crimes which are inseparable from the crime charged,
or evidence which is inextricably intertwined with the crime charged, is not
Williams Rule evidence. It is admissible under section 90.402 because “it is a
relevant and inseparable part of the act which is in issue . . . It is necessary to
admit the evidence to adequately describe the deed.”
Truehill, 211 So.3d at 945 (quoting Griffin v. State, 639 So.2d 966, 968 (Fla. 1994)). In other
words, such evidence is admissible if probative of guilt because “the State is entitled to present
evidence which paints an accurate picture of the events surrounding the crime charged.” Griffin,
639 So.2d at 970 (citing Smith v. State, 365 So.2d 704, 707 (Fla. 1978), cert. denied 444 U.S.
885, 100 S. Ct. 177, 62 L.Ed. 2d 115 (1979)). “Evidence is inextricably intertwined if it is
necessary to “(1) ‘adequately describe the deed,’ (2) provide an intelligent account of the
crime(s) charged, (3) establish the entire context out of which the charged crime(s) arose, or (4)
adequately describe the events leading up to the charged crime(s).” Dorsett v. State, 944 So.2d
1207, 1213 (Fla. 3d DCA 2006) (citations omitted). However, “once the relevancy of the
evidence is determined, the trial court must also balance whether the probative value of the
relevant evidence is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, or needless presentation of cumulative evidence.” Truehill, 211
So.3d at 945 (citing Wright v. State, 19 So.3d 277, 296 (Fla. 2009)) (emphasis added).
10Defendant’s murder and dismemberment of his ex-wife Nicole Montalvo, along with his
burial of those body parts on the property at 3925 Hixon Avenue where he resides, is logical and
can only be described in the context of both his prior abuse of Nicole, he and his family’s desire
for custody of their child in common, and his home confinement and corresponding GPS
monitoring at the time of the murder. This is particularly true of Defendant and Toni Rocker’s
Kidnapping and Battery of the victim in 2018. The evidence will show Defendant committed the
2018 acts to which he pled in part to obtain custody of his son Elijah and to intimidate Nicole
Montalvo into giving him custody. While in custody for those crimes, Defendant made
statements to multiple inmates indicating he hated the victim and wanted to kill her, threats that
escalated after Defendant was served with divorce papers by the victim in the jail in February of
2019. Defendant’s conspiracy with his father and Co-Defendant Angel Rivera to have Nicole
Montalvo arrested, discredit her, and win custody of the child Elijah are directly related and
inseparable from Defendant anticipating Nicole’s testimony in the trial for the kidnapping. The
same is true of Co-Defendant Rivera’s January 21, 2019 offer of money to Dustin Gonzalez to
kill Nicole Montalvo or otherwise make her disappear. Defendant’s GPS monitor will also
provide significant evidence of Defendant’s guilt by showing Defendant was moving in and
around the areas of the 3925 Hixon Avenue property where the victim’s body was found on the
night she was murdered and the day immediately after. This evidence is clearly probative of
guilt and, without explanation, would allow the jury to speculate why Defendant was on
community control and wearing said monitor with such speculation possibly being worse than
the truth of the crimes he committed and for which the court sentenced him. The very location
of the murder and Defendant’s attempting to burn and hide Nicole Montalvo’s remains on the
property where Defendant and Co-Defendant Rivera live only make sense if the jury understands
Defendant could not leave the property as a condition of his court-ordered community control.
Absent evidence of the 2018 crimes, Defendant’s conduct while in custody for them, and
Defendant’s plea to them, the jury will not understand Defendant’s motive to murder Nicole
Montalvo and why the murder occurred where and when it did. In short, such evidence is
necessary to provide an intelligent account of the crimes charged.
The State’s evidence of Defendant’s 2016 Domestic Violence Battery and 2018
Kidnapping of Nicole Montalvo is also not more prejudicial than probative under the law
established in Florida appellate decisions. In Truehill, the Florida Supreme Court affirmed the
11admission of “eighteen uncharged crimes.” Truehill, 211 So.3d at 945. While many of these
crimes consisted of “the use of the victim’s bankcard,” id., they also included Defendant’s
escape from jail, a vehicle theft, two simple robberies, an attempted armed robbery and a
completed armed robbery, and an attempted murder spanning a three-day period. Id. at 945-46.
Admission of all of this evidence was affirmed. /d. at 946-48. Similarly, in Griffin the Florida
Supreme Court affirmed the admission of burglaries and testimony the defendant was driving
around looking to rob unsuspecting individuals prior to murdering a police officer, concluding
such evidence was “relevant and not unduly prejudicial.” Griffin, 639 So.2d at 970. Finally, in
Wuornos v. State, 644 So.2d 1000 (Fla. 1994), the Florida Supreme Court affirmed the state’s
admission of evidence regarding five other homicides committed by the defendant, rejecting the
defendant’s contention that “the nature of the similar crimes evidence was so disturbing that the
relevance was outweighed by the potential for prejudice.” Wuornos, 644 So.2d at 1007.
The State intends to introduce evidence that Defendant beat and pulled the hair of Nicole
Montalvo in 2016, and that in 2018 Defendant lured her to a dark location and struck her again
while his co-defendant held a knife to the victim’s throat. While certainly painting a prejudicial
picture of Defendant, these acts pale in comparison to those found not too prejudicial by the
Courts in Truehill, Wright, and Wuornos. “All evidence of a crime, including that of the murder
in question, ‘prejudices’ the defense case.” Wuornos, 644 So.2d at 1007. Like those decisions,
however, any prejudice from the evidence of Defendant’s crimes does not outweigh its probative
value and should therefore be admitted.
WHEREFORE, the State asks this Court to GRANT the State’s request to admit evidence
of Defendant’s prior incidents of domestic violence against victim to prove Defendant’s motive
and intent to murder Nicole Montalvo on October 21, 2019.
12BRAD KING
STATE ATTORNEY
FIFTH JUDICIAL CIRCUIT
/s/Matthew Ryan Williams
M. Ryan Williams
Designated Assistant State Attorney
Fifth Judicial Circuit
Florida Bar No. 028645
425 N. Orange Ave.
Box 63
Orlando, FL 32801
rwilliams@sao5.org
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the above has been furnished to Migdalia Perez,
counsel for Co-Defendant Christopher Otero-Rivera, and Frank Bankowitz, counsel for Co-
Defendant Angel Rivera, by electronic service this 15th day of May, 2020.
M. Ryan Williams
M. Ryan Williams
Designated Assistant State Attorney
Preview
Filing # 107564602 E-Filed 05/15/2020 07:02:27 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR OSCEOLA COUNTY STATE OF FLORIDA CASE NO.: 49-2019-CF-003738-O Plaintiff, 49-2019-CF-004126-O v. DIVISION: 201 CHRISTOPHER J. OTERO-RIVERA, and ANGEL LUIS RIVERA, Defendants. STATE’S SUPPLEMENTAL NOTICE OF INTENT TO INTRODUCE EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS REGARDING THE MURDER OF NICOLE MONTALVO & SUPPORTING MEMORANDUM OF LAW COMES NOW, the State of Florida, by and through the undersigned Designated Assistant State Attorney, presenting this Memorandum of Law in Support of the State’s Notice of Intent to Introduce Evidence of Other Crimes, Wrongs or Acts Regarding the Murder of Nicole Montalvo (“Notice”), stating as follows: 1. On October 23, 2019, law enforcement was asked to conduct a welfare check on Nicole Yvonne Montalvo whom friends and family believed was missing. Law enforcement located human remains, subsequently identified as those of Ms. Montalvo, on the property located at 3925 Hixon Avenue in St. Cloud, Florida on October 24, 2019. Defendant and Co-Defendant, his father Angel Rivera, were both residing on that property when Ms. Montalvo’s remains were found and for at least several months beforehand. 2. The investigation into Ms. Montalvo’s death resulted in circumstantial evidence that Defendant and Co-Defendant Rivera murdered Nicole Montalvo. The Osceola County grand jury indicted Defendant for Second Degree Murder and other offenses on March 5, 2020. The State filed an Information charging Co-Defendant Rivera with Second Degree Murder and other offenses on April 20, 2020. 3. On March 20, 2020, Assigned State Attorney Brad King filed the State’s Notice outlining the specific incidents and “other crimes, wrongs or acts” the State intends to introduce to establish Defendant and Co-Defendant’s motive and intention to kill Nicole Montalvo. In sum, that Notice lays out Defendant’s Domestic Violence Battery on Nicole Montalvo on June 6,2016, his Kidnapping, Robbery, and Battery of Nicole Montalvo on October 4, 2018, and Ms. Montalvo’s seeking and being granted an injunction against Defendant in October of 2018. 4. So that the Court may engage in the most complete and thorough legal analysis necessary to reach the correct determination on the admissibility of this evidence, the State hereby notices the Court and Defendant of its intention to call the following witnesses, listing also the testimony and specific evidence it intends to admit through each at the hearing on this Motion and at trial, as follows: a. Elaine Montalvo—Mts. Montalvo will testify she was the mother of victim Nicole Montalvo and mother-in-law of Defendant. Mrs. Montalvo will testify to calling emergency services on behalf of Nicole on the night of June 6, 2016 and in response to Nicole’s request for help following Defendant’s Domestic Violence Battery on her. She will testify to spontaneous statements Nicole made to her upon arriving at her residence and to the injuries on Nicole’s person she observed when she arrived. Mrs. Montalvo will also testify to contact she had with Nicole on the early morning hours of October 4, 2018 when Nicole returned to her residence following a Kidnapping, Battery, and Robbery at the hands of Defendant and Defendant’s then girlfriend Toni Rocker. Specifically, Ms. Montalvo will testify to excited utterances Nicole made to her in the home and to her observation of injuries she observed on Nicole’s body. Finally, Ms. Montalvo will testify to Nicole’s seeking and being granted an injunction against Defendant in October of 2018, as well as to Nicole filing for divorce from Defendant shortly thereafter. The State intends to admit the following exhibits through the testimony of Elaine Montalvo: i. Certified Petition for Dissolution of Marriage signed and dated December 18, 2018 and filed February 4, 2019 in 49-2019-DR-484-DC. ii. Certified "Service Worksheet and Return of Service" in 49-2019-DR-484- DC. iii. Composite photographs of victim Nicole Montalvo taken by law enforcement on June 6, 2016 documenting her injuries. iv. Certified medical records documenting Nicole Montalvo's treatment at the St. Cloud Regional Medical Center on October 4, 2018.v. CDR containing audio of 911 call of Elaine Montalvo made on June 6, 2016 regarding Nicole Montalvo's being battered by co-defendant Christopher Otero-Rivera. b. Brittany Hemmerich—Ms. Hemmerich will testify she was present at the residence Nicole Montalvo shared with Defendant on June 6, 2016 when she witnessed Defendant headbutt Nicole, grab her by the hair, and strike her several times in the face before fleeing the scene prior to law enforcement’s arrival. c. Deputy Lucas Castillo—Deputy Castillo will testify to responding to a call for service regarding Domestic Violence Battery at 4700 Citrus Dr. in St. Cloud, Florida on June 6, 2016. He will state he met with Nicole Montalvo that morning and testify to excited utterances Nicole made in his presence regarding the Battery, as well as to the injuries on Nicole’s body he observed. d. Christina Montalvo—Ms. Montalvo will testify she was the sister of victim Nicole Montalvo and sister-in-law of Defendant. Ms. Christina Montalvo will testify she was present at her residence where she lived with Nicole and her parents in the early morning hours of October 4, 2018 when Nicole arrived home following her Kidnapping and Battery at the hands of Defendant and Toni Rocker. Ms. Montalvo will testify to excited utterances made by Nicole Montalvo in her presence, to Nicole’s demeanor, and to the injuries she observed on Nicole’s person. Christina Montalvo will also testify to calling 911 to obtain assistance for Nicole that night. The State intends to admit the following exhibits during Christina Montalvo’s testimony: i. CDR containing the audio recording of the 911 call of Christina Montalvo made on October 4, 2018 regarding Nicole Montalvo's Kidnapping by Defendant Christopher Otero-Rivera and Toni Rocker. ii. Composite photographs of Nicole Montalvo's injuries from her kidnapping on October 4, 2018. e. Tammy Ervin & Amy Godoy!—Court reporters called solely to authenticate the audio ! The State will request a stipulation to admission of these items in an attempt to avoid the testimony of these essentially ministerial witnesses.recording and transcript of the hearing on Nicole Montalvo’s Petition for Domestic Violence Injunction in 49-2018-DR-04250-OS. The State intends to admit the following exhibits during the testimony of Ms. Ervin and Ms. Godoy. i. CDR containing audio recording of injunction hearing in 49-2018-DR- 4250-OS. ii. Certified transcript of injunction hearing in 49-2018-DR-4250-O. f. Ashley Ferrell—Ms. Ferrell will testify to representing victim Nicole Montalvo at the hearing on her Petition for Domestic Violence Injunction in 49-2018-DR-04250-OS. She will testify to Defendant’s presence at the hearing and his waiver of a proceeding based upon the petition written and filed by Nicole Montalvo. The State intends to admit the following exhibits during the testimony of Ms. Ferrell: i. Certified Petition for Domestic Violence Injunction in 49-2018-DR- 04250-OS filed by Nicole Montalvo on October 5, 2018. ii. Certified Final Judgment of Domestic Violence Injunction in 49-2018- DR-04250-OS signed and filed by the Court October 16, 2018. g. Deputy Robert Hansell, Jr.—Deputy Hansell will testify he responded to 1576 Cypress Woods Circle in St. Cloud on October 4, 2018 in reference to a Robbery call. He will describe making contact with victim Nicole Montalvo at her residence, testifying to injuries he observed and excited utterances she made regarding who had inflicted those injuries and how they were sustained. Deputy Hansell will also testify that Defendant and Toni Rocker arrived on scene at Nicole Montalvo’s residence while he was present and that he participated in a search of the vehicle Ms. Rocker was driving that led to finding items in the vehicle belonging to Nicole Montalvo. The State intends to admit the following exhibits during the testimony of Deputy Hansell: i. Composite photographs of the injuries he observed on victim Nicole Montalvo upon his arrival at the scene. ii. Composite photographs of text messages sent by Defendant to victim Nicole Montalvo’s phone prior to and after the Kidnapping and Battery. iii. Composite photographs of items of evidence belonging to victim Nicole Montalvo recovered from the vehicle driven by Toni Rocker and in which Defendant was a passenger.h. Detective Gabriel Davila—Detective Davila will testify to responding to 1576 Cypress Woods Circle in St. Cloud on October 4, 2018 as the on-call detective in the Robbery Unit. He will testify to meeting victim Nicole Montalvo shortly before Defendant and Toni Rocker drove up to Ms. Montalvo’s residence and were stopped. Detective Davila will testify to his participation in the search of the vehicle in which Defendant was riding and the discovery of items belonging to Nicole Montalvo. Detective Davila will also testify to conducting an interview with Defendant regarding the Kidnapping, and to his obtaining Defendant’s cell records from the night of the incident and his “mapping” of them. The State intends to admit the following exhibits during the testimony of Detective Davila: i. CDR containing the audio-recorded interview of Defendant Christopher Otero-Rivera conducted on October 4, 2018. ii. Call detail records associated with the phone belonging to Defendant Christopher Otero-Rivera on October 3-4, 2018. iii. Cell phone mapping from call detail records associated with the phone belonging to Defendant Christopher Otero-Rivera on October 3-4, 2018. i. Dustin Gonzalez—Mr. Gonzalez will testify to being incarcerated with Defendant at the end of 2018 and as to his discussions with Defendant regarding Defendant’s Kidnapping and Battery of Nicole Montalvo on October 3-4, 2018. He will also testify to Defendant’s soliciting him to plant narcotics on Nicole Montalvo in order to damage her credibility and obtain custody of his child in exchange for arranging for Co- Defendant Rivera to pay Mr. Gonzalez’s bond for release. Mr. Gonzalez will also testify to Angel Rivera’s similar solicitation that also included an offer to kill Ms. Montalvo for additional money. Finally, Mr. Gonzalez will testify Defendant told him he was present when Toni Rocker attacked Nicole Montalvo, put a knife to her throat, and threatened her over the custody of their child in common. j. Edward Moffitt—Mr. Moffitt will testify he was an Assistant State Attorney for the Ninth Judicial Circuit on July 19, 2019 when Defendant entered his plea to Tampering with a Witness to Hinder Communication to Law Enforcement, Unlawful Possession of a Stolen Credit or Debit Card, and Domestic Violence Battery. Mr. Moffitt will testify tothe factual basis he provided to the Court for that plea in Defendant’s presence and to Defendant’s silence and acceptance of the facts as read. The State intends to admit the following exhibits during the testimony of Edward Moffitt. i. Certified transcript of the plea hearing for Defendant Christopher Otero-Rivera in 49-2018-CF-3532-OS. k. Aaron Rivas—Mr. Rivas will testify he acted as Defendant’s initial probation officer once Defendant entered his plea on July 19, 2019. Mr. Rivas will simply establish the terms of Defendant’s probation, including his being required to wear an ankle monitor equipped with GPS to track Defendant’s movements around the property located at 3925 Hixon Avenue. 5. In addition to this evidence the State will introduce at the hearing on this Notice, the State will introduce evidence that Defendant’s GPS monitor was found in and around areas of the property at 3925 Hixon Avenue where portions of Nicole Montalvo’s remains were found in the days following her disappearance. 6. The State now comes forward with the applicable law upon which this Court may rely in admitting this evidence at trial. MEMORANDUM OF LAW “Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2017). However, “[rjelevant 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.” § 90.403. The Florida Supreme Court has stated the following in reference to the admissibility of evidence generally turning on the issue of relevance: Our initial premise is the general canon of evidence that any fact relevant to prove a fact in issue is admissible into evidence unless its admissibility is precluded by some specific rule of exclusion. Viewing the problem at hand from this perspective, we begin by thinking in terms of a rule of admissibility as contrasted to a rule of exclusion.Williams v. State, 110 So.2d 654, 658 (Fla. 1959). This is true even if the evidence consists of a criminal defendant’s other crimes or bad acts, so long as the evidence “is probative of a material issue other than the bad character of the accused.” LaMarca v. State, 785 So.2d 1209, 1212 (Fla. 2001) (citing Hunter v. State, 660 So.2d 244, 251 (Fla. 1995)). Evidence of other crimes or bad acts is specifically “admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ....” § 90.404(2)(a). While weighing the relevance of any evidence, the court must of course weigh the prejudicial effect of such evidence against its probative value. § 90.403. However, “[a]ll of the evidence presented in a prosecution ‘prejudices’ the defendant; thus, the pertinent question is whether that prejudice is so unfair that it should be deemed unlawful.” Lamarca, 785 So.2d at 1213 (citing Wournos v. State, 644 So.2d 1000, 1007 (Fla. 1994)). The Florida Supreme Court laid out the considerations a trial court must address prior to admitting Williams Rule evidence in its opinion in Robertson v. State, 829 So.2d 901 (Fla. 2002): Before admitting Williams rule evidence, it is incumbent upon the trial court to make multiple determinations, including 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. As the above- mentioned requirements suggest, the determination of whether evidence properly may be admitted as Williams rule evidence is a highly individualized, factually intensive inquiry. Robertson, 829 So.2d at 907-08 (internal citations omitted). When it comes to proof, “the trial court must find that the State has proved that the defendant committed the collateral acts by clear and convincing evidence.” McLean v. State, 934 So.2d 1248, 1256 (Fla. 2006). Parties seeking to exclude similar fact evidence often direct the court to pervasive case law holding that, when using such evidence to prove identity, there must be similarity between the prior acts and the offense for which the criminal defendant is on trial. See Drake v. State, 400 So.2d 1217, 1219 (Fla. 1981) (“There must be identifiable points of similarity which pervade the compared factual situations . . . in order for the similar facts to be relevant the points of similarity must be so unusual as to point to the defendant.”); Kulling v. State, 827 So.2d 311,314 (Fla. 2d DCA 2002) (“The characteristics of the crime must be so unique as to constitute ‘fingerprint’ evidence.”) (citing State v. Savino, 567 So.2d 892, 894 (Fla. 1990)). This strict similarity is not required, however, when the similar fact evidence is admitted to prove a defendant’s motive or intent to commit the crimes charged. Torres v. State, 834 So.2d 342, 344 (Fla. 3d DCA 2003) (“While courts are strict when requiring similarity when collateral crimes are used to prove identity, the same is not the case when they are used to prove motive.”) (citing Finney v. State, 660 So.2d 674, 681-82 (Fla. 1995) (“Overall similarity between the facts of the two offenses generally is necessary before the other crime evidence is considered relevant to the issue of identity. However, such is not the case when other crime evidence is used to prove motive.”)); Burgal v. State, 740 So.2d 82, 83 (Fla. 3d DCA 1999) (“{T]he prior incidents of domestic violence by defendant-appellant Burgal against the victim were properly admitted into evidence to prove motive, intent, and premeditation.”) (emphasis added). Thus, there are a number of Florida appellate decisions affirming the admission of a defendant’s prior acts of domestic violence against a particular victim to allow the state to prove the defendant’s motive or intent to commit the crime. In State v. Wright, 74 So.3d 503 (Fla. 2d DCA 2011), the state sought a writ of certiorari to quash the trial court’s order precluding the state from admitting evidence of “Wright’s prior acts of domestic violence against the victim” in the defendant’s trial for kidnapping with intent to terrorize the same victim. Wright, 74 So.3d at 504. The victim specifically testified, at a hearing on defendant’s objection to the state’s notices of intent to admit such evidence, “in detail about the prior acts of domestic violence as well as threats Wright made against her on prior occasions.” Jd. at 505. Additionally, the victim “testified about an incident in which she and Wright were arguing in the car and Wright refused to let her out of the car for several hours.” Id. The Second District Court of Appeal granted the State’s petition for the writ, holding the trial court’s order prohibiting the evidence “departed from the essential requirements of the law.” Id. at 504. Citing the Florida Supreme Court’s holding in Dennis v. State, 817 So.2d 741 (Fla. 2002), the Wright Court concluded that “the evidence of Wright’s prior acts of domestic violence and threats is relevant to the issues of motive and intent.”? Wright, 74 So.3d at 506. ? It is potentially significant that the victim in Wright had “sought and obtained an injunction for protection against domestic violence.” Wright, 74 So.3d at 504. Ms. Montalvo had also sought and been granted a similar domestic violence injunction against Defendant. However, the Wright Court indicated that the facts had not yet beenThe Supreme Court’s holding in Dennis provides additional support for this Court’s admission of testimony and evidence concerning Defendant’s prior batteries on victim Nicole Montalvo. In Dennis, the defendant was convicted of First Degree Murder and sentenced to death for killing his ex-girlfriend Timwanika Lumpkins. Dennis, 817 So.2d at 744. One of Dennis’s arguments on appeal was that the trial court erred “in admitting collateral evidence that he stalked, threatened, and assaulted Lumpkins” prior to her death. /d. at 761. The Supreme Court noted that this evidence came from several of Lumpkins’ family members and friends who recounted incidents in which Dennis would stalk Lumpkins . . . [and] [iJn sum, the evidence depicted the turbulent and sometimes violent relationship between Dennis and Lumpkins.” /d. at 761-62. Citing Sexton v. State, 697 So.2d 833, 836-37 (Fla. 1997), the Court noted that “{e]vidence of ‘other crimes’ is not limited to other crimes with similar facts.” Dennis, 817 So.2d at 762. After noting the “broad discretion” held by the trial court in making such determinations of admissibility, the Court held that “[a]lthough certainly prejudicial, the evidence of the nature of Dennis’s relationship with the victim was relevant to establish Dennis’s motive.” Id. The admissibility of prior acts of domestic violence is also clear from the Third District Court of Appeal’s decision in Brown v. State, 611 So.2d 540 (Fla. 3rd DCA 1992). Like the courts in Wright and Dennis, the Brown Court confronted a defendant’s appeal of the trial court’s admission of testimony of prior bad acts. Specifically, that the victim “and defendant had a rocky relationship, that there were problems with [Brown’s] jealousy, and that [Brown] did not want anyone else in the house.” Brown, 611 So.2d at 542. The victim also testified that “the defendant had threatened to kill her if he caught her with another man.” Jd. The Brown court affirmed the admission of this testimony, concluding it was “proper evidence of motive, intent, and premeditation.” Jd. (citing King v. State, 436 So.2d 50 (Fla. 1983), cert. denied, 466 U.S. 909, 104 S.Ct. 1690, 80 L.Ed.2d 163 (Fla.1984); Hyer v. State, 462 So.2d 488 (Fla. 2d DCA 1984); Goldstein v. State, 477 So.2d 903 (Fla. 4th DCA 1984)). The State will introduce clear and convincing evidence that on June 6, 2016, Defendant got upset with Nicole Montalvo for drinking one of his beers. His response was to headbutt Ms. Montalvo, grab and pull her hair, and strike her in the face several times before fleeing the developed at trial, making it unclear if the Second District Court of Appeal was affirming the admission of the injunction or merely commenting upon it.residence and police. There will also be evidence from multiple sources that not even two years later, on the night of October 3rd and into the early morning hours of October 4, 2018, Defendant and Toni Rocker lured Nicole Montalvo to a dark area and physically battered her and threatened her with a knife for the express purposes of forcing Ms. Montalvo to give Defendant custody of their child in common and taking her money. Florida law explained through the holdings in Wright, Dennis, and Brown make it clear these prior acts are relevant and admissible to prove Defendant’s motive and intent to kill Nicole Montalvo as he is alleged to have done in the Amended Information. These precedents are not the only law, however, establishing the admissibility of Defendant’s prior batteries and abuse of Nicole Montalvo. “Admissible evidence of uncharged crimes falls into two categories: ‘similar fact’ evidence and ‘dissimilar fact’ evidence.” Truehill v. State, 211 So.3d 930, 945 (Fla. 2017) (quoting Victorino v. State, 23 So.3d 87, 98 (Fla. 2009)). The Truehill Court went on to explain the basis for admitting dissimilar fact evidence: Dissimilar fact evidence is governed by section 90.402 and has been described as . .. evidence of uncharged crimes which are inseparable from the crime charged, or evidence which is inextricably intertwined with the crime charged, is not Williams Rule evidence. It is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue . . . It is necessary to admit the evidence to adequately describe the deed.” Truehill, 211 So.3d at 945 (quoting Griffin v. State, 639 So.2d 966, 968 (Fla. 1994)). In other words, such evidence is admissible if probative of guilt because “the State is entitled to present evidence which paints an accurate picture of the events surrounding the crime charged.” Griffin, 639 So.2d at 970 (citing Smith v. State, 365 So.2d 704, 707 (Fla. 1978), cert. denied 444 U.S. 885, 100 S. Ct. 177, 62 L.Ed. 2d 115 (1979)). “Evidence is inextricably intertwined if it is necessary to “(1) ‘adequately describe the deed,’ (2) provide an intelligent account of the crime(s) charged, (3) establish the entire context out of which the charged crime(s) arose, or (4) adequately describe the events leading up to the charged crime(s).” Dorsett v. State, 944 So.2d 1207, 1213 (Fla. 3d DCA 2006) (citations omitted). However, “once the relevancy of the evidence is determined, the trial court must also balance whether the probative value of the relevant evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.” Truehill, 211 So.3d at 945 (citing Wright v. State, 19 So.3d 277, 296 (Fla. 2009)) (emphasis added). 10Defendant’s murder and dismemberment of his ex-wife Nicole Montalvo, along with his burial of those body parts on the property at 3925 Hixon Avenue where he resides, is logical and can only be described in the context of both his prior abuse of Nicole, he and his family’s desire for custody of their child in common, and his home confinement and corresponding GPS monitoring at the time of the murder. This is particularly true of Defendant and Toni Rocker’s Kidnapping and Battery of the victim in 2018. The evidence will show Defendant committed the 2018 acts to which he pled in part to obtain custody of his son Elijah and to intimidate Nicole Montalvo into giving him custody. While in custody for those crimes, Defendant made statements to multiple inmates indicating he hated the victim and wanted to kill her, threats that escalated after Defendant was served with divorce papers by the victim in the jail in February of 2019. Defendant’s conspiracy with his father and Co-Defendant Angel Rivera to have Nicole Montalvo arrested, discredit her, and win custody of the child Elijah are directly related and inseparable from Defendant anticipating Nicole’s testimony in the trial for the kidnapping. The same is true of Co-Defendant Rivera’s January 21, 2019 offer of money to Dustin Gonzalez to kill Nicole Montalvo or otherwise make her disappear. Defendant’s GPS monitor will also provide significant evidence of Defendant’s guilt by showing Defendant was moving in and around the areas of the 3925 Hixon Avenue property where the victim’s body was found on the night she was murdered and the day immediately after. This evidence is clearly probative of guilt and, without explanation, would allow the jury to speculate why Defendant was on community control and wearing said monitor with such speculation possibly being worse than the truth of the crimes he committed and for which the court sentenced him. The very location of the murder and Defendant’s attempting to burn and hide Nicole Montalvo’s remains on the property where Defendant and Co-Defendant Rivera live only make sense if the jury understands Defendant could not leave the property as a condition of his court-ordered community control. Absent evidence of the 2018 crimes, Defendant’s conduct while in custody for them, and Defendant’s plea to them, the jury will not understand Defendant’s motive to murder Nicole Montalvo and why the murder occurred where and when it did. In short, such evidence is necessary to provide an intelligent account of the crimes charged. The State’s evidence of Defendant’s 2016 Domestic Violence Battery and 2018 Kidnapping of Nicole Montalvo is also not more prejudicial than probative under the law established in Florida appellate decisions. In Truehill, the Florida Supreme Court affirmed the 11admission of “eighteen uncharged crimes.” Truehill, 211 So.3d at 945. While many of these crimes consisted of “the use of the victim’s bankcard,” id., they also included Defendant’s escape from jail, a vehicle theft, two simple robberies, an attempted armed robbery and a completed armed robbery, and an attempted murder spanning a three-day period. Id. at 945-46. Admission of all of this evidence was affirmed. /d. at 946-48. Similarly, in Griffin the Florida Supreme Court affirmed the admission of burglaries and testimony the defendant was driving around looking to rob unsuspecting individuals prior to murdering a police officer, concluding such evidence was “relevant and not unduly prejudicial.” Griffin, 639 So.2d at 970. Finally, in Wuornos v. State, 644 So.2d 1000 (Fla. 1994), the Florida Supreme Court affirmed the state’s admission of evidence regarding five other homicides committed by the defendant, rejecting the defendant’s contention that “the nature of the similar crimes evidence was so disturbing that the relevance was outweighed by the potential for prejudice.” Wuornos, 644 So.2d at 1007. The State intends to introduce evidence that Defendant beat and pulled the hair of Nicole Montalvo in 2016, and that in 2018 Defendant lured her to a dark location and struck her again while his co-defendant held a knife to the victim’s throat. While certainly painting a prejudicial picture of Defendant, these acts pale in comparison to those found not too prejudicial by the Courts in Truehill, Wright, and Wuornos. “All evidence of a crime, including that of the murder in question, ‘prejudices’ the defense case.” Wuornos, 644 So.2d at 1007. Like those decisions, however, any prejudice from the evidence of Defendant’s crimes does not outweigh its probative value and should therefore be admitted. WHEREFORE, the State asks this Court to GRANT the State’s request to admit evidence of Defendant’s prior incidents of domestic violence against victim to prove Defendant’s motive and intent to murder Nicole Montalvo on October 21, 2019. 12BRAD KING STATE ATTORNEY FIFTH JUDICIAL CIRCUIT /s/Matthew Ryan Williams M. Ryan Williams Designated Assistant State Attorney Fifth Judicial Circuit Florida Bar No. 028645 425 N. Orange Ave. Box 63 Orlando, FL 32801 rwilliams@sao5.org CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above has been furnished to Migdalia Perez, counsel for Co-Defendant Christopher Otero-Rivera, and Frank Bankowitz, counsel for Co- Defendant Angel Rivera, by electronic service this 15th day of May, 2020. M. Ryan Williams M. Ryan Williams Designated Assistant State Attorney