Third District Court of Appeal State of Florida
Opinion filed July 29, 2026. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-2141 Lower Tribunal No. F20-5503A ________________
Adrian Edward Cosby, Appellant,
vs.
State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, William Altfield, Judge.
Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
James Uthmeier, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for appellee.
Before SCALES, C.J., and FERNANDEZ and MILLER, JJ.
SCALES, C.J. Appellant Adrian E. Cosby appeals his convictions for first-degree
felony murder, attempted felony murder, and attempted robbery. The sole
issue on appeal is whether the trial court abused its discretion in admitting
into evidence, over Cosby’s objection, a photograph of Cosby brandishing a
9mm handgun. We affirm.
I. Relevant Facts
On April 7, 2020, Sergio Berben (a high school student selling
aftermarket sneakers) and his girlfriend, Andrea Lacayo, drove to an address
in Southwest Miami-Dade County. Berben stopped his vehicle at the
address, an abandoned house, and George Walton1 emerged from an alley
near this house, approached Berben’s vehicle, and engaged Berben in
conversation about the sneakers.
At that point, Cosby approached Berben’s vehicle from the rear,
removed a gun from his jacket, and began firing at Berben and Lacayo.
Berben was hit in the arm and survived. Lacayo, though, sustained a fatal
stomach wound. Both Berben and Lacayo were shot with a 9-millimeter gun
that was not recovered.
The following day, as part of a neighborhood canvass, the police
arrived at the Cosby family home and asked the family questions about the
1 Walton was separately tried and convicted.
2 incident. Afterwards, the Cosby family had a meeting inside the home which
was captured on Cosby’s mother’s cellphone video. The video shows Walton
and Cosby deleting items from Walton’s cellphone.2
A forensic investigation of Walton’s cellphone revealed that, on the day
of the shooting, 161 items had been deleted; on this night after the shooting,
Walton and Cosby deleted an additional 541 items. One of these deleted
items was the photograph in question, a selfie, taken approximately two
months earlier. The photograph depicted Cosby and Walton posing with
9mm guns.
Within its case-in-chief, over Cosby’s objection, the State showed the
jury the deleted photograph as part of its panoply of evidence against Cosby.
This evidence included video footage from neighborhood surveillance
cameras and video footage from inside the home from Cosby’s mother’s
cellphone; Cosby’s clothing and 9mm ammunition found in Cosby’s bedroom
under a search warrant; Berben’s identification of Cosby; Instagram
messages regarding the arranging of the sneakers sale; and the forensic
data extracted from Walton’s phone, which included the deleted photograph.
Ultimately, the jury convicted Cosby of the felony murder of Lacayo, the
2 Cosby and Walton were sharing Walton’s cellphone after Cosby had lost his cellphone.
3 attempted felony murder of Berben, and the attempted robbery of both
victims. The trial court sentenced Cosby to life imprisonment for the felony
murder and attempted murder counts, and to twenty-five years for the
attempted robbery, with the sentences to run concurrently. Cosby timely
appealed, raising the single issue of the relevance and prejudicial effect of
the photograph.
II. Analysis
Relying on several cases holding that it is error to admit firearm
photographs into evidence absent a link between the firearm and the crime,3
Cosby asserts the photograph was inadmissible under section 90.401
(relevance) and section 90.403 (unfair prejudice) of the Florida Statutes
(2024) because, purportedly, there was no link between the 9mm gun
depicted in the photograph and the 9mm gun used in the shooting. In other
words, Cosby argues that the probative value of the photograph was
3 See, e.g., Agatheas v. State, 77 So. 3d 1232, 1236, 1239 (Fla. 2011) (holding that testimony about a 45-caliber gun found in defendant’s backpack when he was arrested five years after a murder was inadmissible when the murder had been committed with a 38-caliber gun. Thus, “the only possible relevance of the 45-caliber revolver would be to demonstrate Agatheas’s bad character and propensity.”); Green v. State, 27 So. 3d 731, 738 (Fla. 2d DCA 2010) (holding that the trial court erred by admitting into evidence three firearms found in defendant’s home that were of the same caliber of firearms used in a shooting, because these firearms were not connected to the shooting and, therefore, unfair prejudice outweighed probative value).
4 outweighed by the prejudice to Cosby of suggesting he had a violent
character.
The State persuasively argues that this case is more closely analogous
to cases in which courts found a sufficient link between the evidence and the
underlying crime. See, e.g., Delhall v. State, 95 So. 3d 134, 155 (Fla. 2012)
(holding no abuse of discretion in admitting evidence of a 9mm cartridge
found in the defendant’s backpack in his car where the 9mm cartridge used
in the shooting was from a different manufacturer; the matched caliber and
the defendant’s admission transporting the murder weapon in his car found
to be the “necessary nexus”); Holloway v. State, 114 So. 3d 296, 297 (Fla.
4th DCA 2013) (holding that a link existed between ammunition found in
defendant’s home and a firearm used (and not recovered) in a shooting, one
factor being the temporal proximity of the discovery of the ammunition and
the crime); Johnson v. State, 93 So. 3d 1066, 1068-69 (Fla. 4th DCA 2012)
(holding that admitting into evidence photographs of a firearm owned by
defendant not of the same caliber as the firearm used in the shooting was
not unfairly prejudicial).
Specifically, the State asserts the following establishes a clear nexus
between the challenged photograph and the crimes charged: (i) the evidence
was undisputed that the victims were shot with a 9mm gun that was not
5 recovered; (ii) 9mm ammunition was found in Cosby’s room; (iii) the
photograph the State introduced showed Cosby posing with a 9mm gun; (iv)
the trial court found the gun in the photograph “consistent” with the
unrecovered gun used in the shooting; (v) the photograph was intentionally
deleted from Walton’s phone by Cosby and Walton the night after the crime;
and (vi) the photograph, a selfie, was taken two months before the shooting
and, therefore, was not remote in time from the charged crime.
When it comes to weighing evidentiary issues and admitting evidence,
trial judges are generally granted broad discretion. Poole v. State, 151 So.
3d 402, 414 (Fla. 2014); Hernandez v. State, 979 So. 2d 1013
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Third District Court of Appeal State of Florida
Opinion filed July 29, 2026. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D24-2141 Lower Tribunal No. F20-5503A ________________
Adrian Edward Cosby, Appellant,
vs.
State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, William Altfield, Judge.
Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
James Uthmeier, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for appellee.
Before SCALES, C.J., and FERNANDEZ and MILLER, JJ.
SCALES, C.J. Appellant Adrian E. Cosby appeals his convictions for first-degree
felony murder, attempted felony murder, and attempted robbery. The sole
issue on appeal is whether the trial court abused its discretion in admitting
into evidence, over Cosby’s objection, a photograph of Cosby brandishing a
9mm handgun. We affirm.
I. Relevant Facts
On April 7, 2020, Sergio Berben (a high school student selling
aftermarket sneakers) and his girlfriend, Andrea Lacayo, drove to an address
in Southwest Miami-Dade County. Berben stopped his vehicle at the
address, an abandoned house, and George Walton1 emerged from an alley
near this house, approached Berben’s vehicle, and engaged Berben in
conversation about the sneakers.
At that point, Cosby approached Berben’s vehicle from the rear,
removed a gun from his jacket, and began firing at Berben and Lacayo.
Berben was hit in the arm and survived. Lacayo, though, sustained a fatal
stomach wound. Both Berben and Lacayo were shot with a 9-millimeter gun
that was not recovered.
The following day, as part of a neighborhood canvass, the police
arrived at the Cosby family home and asked the family questions about the
1 Walton was separately tried and convicted.
2 incident. Afterwards, the Cosby family had a meeting inside the home which
was captured on Cosby’s mother’s cellphone video. The video shows Walton
and Cosby deleting items from Walton’s cellphone.2
A forensic investigation of Walton’s cellphone revealed that, on the day
of the shooting, 161 items had been deleted; on this night after the shooting,
Walton and Cosby deleted an additional 541 items. One of these deleted
items was the photograph in question, a selfie, taken approximately two
months earlier. The photograph depicted Cosby and Walton posing with
9mm guns.
Within its case-in-chief, over Cosby’s objection, the State showed the
jury the deleted photograph as part of its panoply of evidence against Cosby.
This evidence included video footage from neighborhood surveillance
cameras and video footage from inside the home from Cosby’s mother’s
cellphone; Cosby’s clothing and 9mm ammunition found in Cosby’s bedroom
under a search warrant; Berben’s identification of Cosby; Instagram
messages regarding the arranging of the sneakers sale; and the forensic
data extracted from Walton’s phone, which included the deleted photograph.
Ultimately, the jury convicted Cosby of the felony murder of Lacayo, the
2 Cosby and Walton were sharing Walton’s cellphone after Cosby had lost his cellphone.
3 attempted felony murder of Berben, and the attempted robbery of both
victims. The trial court sentenced Cosby to life imprisonment for the felony
murder and attempted murder counts, and to twenty-five years for the
attempted robbery, with the sentences to run concurrently. Cosby timely
appealed, raising the single issue of the relevance and prejudicial effect of
the photograph.
II. Analysis
Relying on several cases holding that it is error to admit firearm
photographs into evidence absent a link between the firearm and the crime,3
Cosby asserts the photograph was inadmissible under section 90.401
(relevance) and section 90.403 (unfair prejudice) of the Florida Statutes
(2024) because, purportedly, there was no link between the 9mm gun
depicted in the photograph and the 9mm gun used in the shooting. In other
words, Cosby argues that the probative value of the photograph was
3 See, e.g., Agatheas v. State, 77 So. 3d 1232, 1236, 1239 (Fla. 2011) (holding that testimony about a 45-caliber gun found in defendant’s backpack when he was arrested five years after a murder was inadmissible when the murder had been committed with a 38-caliber gun. Thus, “the only possible relevance of the 45-caliber revolver would be to demonstrate Agatheas’s bad character and propensity.”); Green v. State, 27 So. 3d 731, 738 (Fla. 2d DCA 2010) (holding that the trial court erred by admitting into evidence three firearms found in defendant’s home that were of the same caliber of firearms used in a shooting, because these firearms were not connected to the shooting and, therefore, unfair prejudice outweighed probative value).
4 outweighed by the prejudice to Cosby of suggesting he had a violent
character.
The State persuasively argues that this case is more closely analogous
to cases in which courts found a sufficient link between the evidence and the
underlying crime. See, e.g., Delhall v. State, 95 So. 3d 134, 155 (Fla. 2012)
(holding no abuse of discretion in admitting evidence of a 9mm cartridge
found in the defendant’s backpack in his car where the 9mm cartridge used
in the shooting was from a different manufacturer; the matched caliber and
the defendant’s admission transporting the murder weapon in his car found
to be the “necessary nexus”); Holloway v. State, 114 So. 3d 296, 297 (Fla.
4th DCA 2013) (holding that a link existed between ammunition found in
defendant’s home and a firearm used (and not recovered) in a shooting, one
factor being the temporal proximity of the discovery of the ammunition and
the crime); Johnson v. State, 93 So. 3d 1066, 1068-69 (Fla. 4th DCA 2012)
(holding that admitting into evidence photographs of a firearm owned by
defendant not of the same caliber as the firearm used in the shooting was
not unfairly prejudicial).
Specifically, the State asserts the following establishes a clear nexus
between the challenged photograph and the crimes charged: (i) the evidence
was undisputed that the victims were shot with a 9mm gun that was not
5 recovered; (ii) 9mm ammunition was found in Cosby’s room; (iii) the
photograph the State introduced showed Cosby posing with a 9mm gun; (iv)
the trial court found the gun in the photograph “consistent” with the
unrecovered gun used in the shooting; (v) the photograph was intentionally
deleted from Walton’s phone by Cosby and Walton the night after the crime;
and (vi) the photograph, a selfie, was taken two months before the shooting
and, therefore, was not remote in time from the charged crime.
When it comes to weighing evidentiary issues and admitting evidence,
trial judges are generally granted broad discretion. Poole v. State, 151 So.
3d 402, 414 (Fla. 2014); Hernandez v. State, 979 So. 2d 1013, 1016 (Fla. 3d
DCA 2008) (“The admissibility of evidence lies within the sound discretion of
the trial court. The trial court’s discretion is broad, and the decision to admit
evidence will not be reversed unless there is a clear abuse of discretion.”)
(citation omitted). Given the aggregation of facts connecting the photograph
to the charged crimes, coupled with our deferential standard of review, we
cannot say that the trial court abused its discretion in admitting the
photograph.4
4 The State makes the alternate argument that, even if the trial court did err by admitting the photograph, in light of the overwhelming evidence against Cosby, such error was harmless beyond a reasonable doubt. Because of our holding, we need not, and therefore do not, reach the harmless error issue.
6 Affirmed.