APPELLATE DIVISION

CRAIG CALHOUN,

            Appellant,

vs.                                                                   Appeal No. CRC 00-05621 CFANO

STATE OF FLORIDA,

            Appellee.

_________________________________/

Opinion filed _____________________.

Appeal from a decision of the

Joy K. Goodyear, Esq.
Assistant Public Defender
Attorney for Appellant

Erik J. Lombillo, Esq.
Assistant State Attorney
Attorney for Appellee

ORDER AND OPINION

            THIS CAUSE is before the Court on the defendant’s appeal from the verdict, judgment and sentence entered by the Pinellas County Court following a jury verdict of guilty of lewd and lascivious behavior and stalking.  After reviewing the briefs and record, this Court reverses the decision of the trial court denying defendant’s amended motion for new trial and remands for a new trial.

            The defendant was arrested for lewd and lascivious behavior on January 4, 2000, and he entered a plea of not guilty on January 6, 2000.  A Motion for Permission to Amend the Information charging the defendant with stalking was delivered to the Public Defender’s Office on February 21, 2000, but was not filed by the State Attorney’s Office until March 21, 2000, the same date the case was set for trial.  After the jury had been sworn, the trial court granted the motion to amend the information and the case proceeded to trial. 

At trial, the victim, Elizabeth Noble, testified to the following.  On September 1, 1999, at approximately 11:30 p.m., she arrived home from work and parked her car twenty feet from her door.  Within 10 minutes, the defendant, who lived at the same apartment complex as the victim, within close proximity to the victim’s apartment, emerged from his apartment and began smoking a cigarette and pacing in front of the victim’s window while stroking his penis that he had pulled out from the bottom of his shorts.  The victim was able to view the defendant from inside her apartment because the blinds at her window were broken and could not be completely closed.  The defendant then sat on the hood of the victim’s car facing the victim’s window and proceeded to masturbate for between eight (8) to fifteen (15) minutes until ejaculation.  According to the victim, the defendant was fully illuminated by a naked fluorescent tube light located four (4) feet above him.  The victim chose not to call police, but instead told her mother, the landlord, and friends about the incident.

The victim further testified that four days later she saw the defendant peeping inside of her bedroom window as he walked in the direction of the laundry, although he had no laundry with him.  Frightened, the victim went to her mother’s house to do laundry, rather than use the one on the premises.  Within three to four minutes of returning from her mother’s house later that afternoon, the defendant exited his apartment and walked by the victim’s window twice.  Each time he passed the victim’s window he peered inside.  The victim then heard a knock on her door.  Not knowing for sure whether it was the defendant, the victim opened the door a few inches and heard the defendant ask to speak to her.  The victim slammed the door closed and called the police to report that she was being stalked.

The jury returned verdicts of guilty on the charges of lewd and lascivious behavior and stalking.  After the return of the guilty verdicts, defense counsel moved for a new trial which motion was denied.  Defense counsel then filed an Amended Motion for New Trial and a Motion to Dismiss the State’s Amended Information.  On March 9, 2000, the trial court denied the Amended Motion for New Trial, but granted the Motion to Dismiss the State’s Amended Information.  The court then vacated the judgment and sentence on the stalking charge.

The issue in this case is whether the admitted error committed by the trial court in allowing the state to amend the information to include a charge of stalking after the jury was sworn was harmless or reversible error.  The standard for harmless error is set out in State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).  The test places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.  In attempting to show the error was harmless, the state argues that “the prejudicial effect of the several incidents of window peeping and single knock at the door that constituted the stalking charge is far outweighed by the direct witness testimony of the defendant’s lengthy and well lighted exhibition of his lewd and lascivious act on the victim’s car.”  The state goes on to cite Dunlap v. State, 404 So.2d 853 (Fla. 2d DCA 1981) for the proposition that “overwhelming evidence of a defendant’s guilt can render error harmless.”

The state misperceives the standard to be followed within the boundaries of DiGuilio in assessing harmless error.  Our Supreme Court in Long v. State, 494 So.2d 213 (Fla. 1986) has held that the presence of “overwhelming evidence is not the measure of harmless error.”  In evaluating harmless error, the court must determine not if there is overwhelming evidence of guilt, but if it can be said beyond a reasonable doubt that the verdict could not have been effected by the error.  Ciccarelli v. State, 531 So.2d 129, 131 (Fla. 1988).  We find, therefore, that the state has not presented a prima facie case of harmlessness.   Accordingly, if the state has not presented a prima facie case of harmlessness in its argument, the court need go no further.  Id. at 131. 

It is therefore,

ORDERED AND ADJUDGED that this Court reverses the decision of the trial court denying defendant’s amended motion for new trial and remands this case consistent with this opinion.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 4th day of January, 2001.

__________________________
W. DOUGLAS BAIRD
Circuit Judge
Primary Appellate Judge

___________________________
NANCY MOATE LEY
Circuit Judge

___________________________
R. TIMOTHY PETERS
Circuit Judge

Copies furnished to:

Joy K. Goodyear, Esq.
Assistant Public Defender
Criminal Justice Center
14250 49^th Street North
Clearwater, Florida 33762

Erik J. Lombillo, Esq.
Assistant State Attorney
P.O. Box 5028
Clearwater, Florida 34618