IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

†††††††††††

DAVID SOUTHERLAND,

††††††††††† Appellant,

vs.†††††††††††††††††† ††††††††††††††††††††††† ††††††††††† ††††††††††† Appeal No. CRC 00-10387 CFANO

STATE OF FLORIDA,

††††††††††† Appellee.

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Opinion filed March 22, 2001.

Appeal from a decision of the

Pinellas County Court

County Judge Burton Easton

Theresa Fifield-Wilcox

Certified Legal Intern

Robert S. McClure, Esq.

Assistant Public Defendant

Attorneys for Appellant

Melissa McCullough, Esq.

Assistant State Attorney

Attorney for Appellee

ORDER AND OPINION

††††††††††† THIS CAUSE is before the Court on the defendantís appeal from the judgment and sentence entered by the Pinellas County Court following a jury verdict of DUI. †Defendant seeks reversal of his conviction and a new trial based on two grounds: First, over objection, Officers Podraza and Vaughan were allowed to testify that defendant used obscenities and threatened one of the officers with violence.† Second, the trial court summarily denied defendantís Motion for Judgment of Acquittal without hearing argument from defense counsel.† After reviewing the briefs and record, this Court affirms the judgment and sentence.

††††††††††† On February 9, 2000, the St. Petersburg Beach Police received information that there was a possible reckless driver in a silver or gray Jaguar.† At approximately 3:45 p.m., Officer Pedroza pulled over a vehicle matching the description given, which the defendant was driving.† Officer Pedroza asked the defendant to exit the vehicle after smelling alcoholic beverages on the defendantís breath and observing the defendant fumbling his driverís license.† As the defendant exited the rented vehicle, the officer saw a silver blade sticking out of the defendantís back pocket.† At that point, the officer put the defendant up against the car, handcuffed him, patted him down for weapons, and put him in the police car.† The defendant became angry and began using profanity, and threatened to ďkick [Pedrozaís] ass [if he was not let out of the handcuffs].

A search of the defendantís vehicle revealed a fifty (50) milliliter bottle of Grand Marnier liquor that was three quarters empty.† Defendant was subsequently asked to perform field sobriety tests, which he claimed he could not perform because of injuries, although he also refused the ABC test.† Officer Vaughn, the officer in charge of the DUI investigation, testified that the defendant smelled of alcohol, slurred his speech, had glassy eyes, was yelling, and profane.† The defendant was given a second chance to take the field sobriety tests, but refused.† Officer Vaughn read the defendant implied consent at the station, and the defendant refused to take the breath test. The defendant was subsequently charged with DUI.

The defendant raises two issues in his appeal.† First, defendant claims the trial court erred in admitting his post-arrest statements where the statements did not prove a specific element of driving under the influence.† A lay witness may testify to physical appearance or observable intoxication.† Via v. State, 567 So.2d 543 (Fla. 2d DCA 1990).† Furthermore, in City of Orlando, Florida v. Newell, 232 So.2d 413 (Fla. 4th DCA 1970), the court held as admissible an officerís testimony describing that the defendantís acts, conduct, appearance and statements as seen and heard by the officer led him to believe that the defendantís normal faculties were impaired.† In this case, the defendant refused to perform field sobriety tests and to submit to a chemical breath test.† The State, therefore, introduced the officersí statements to show the defendantís normal faculties were impaired.† The officers testified as to the defendantís appearance, the defendantís obscene and threatening statements, and his belligerent and hostile attitude.† These factors are relevant in determining whether the defendant was impaired, and their probative value is not outweighed by the danger of unfair prejudice.† We, therefore, find the defendantís first argument without merit.

Defendantís second issue on appeal is that the trial court erred in denying the defendantís Motion for Judgment of Acquittal without allowing the defendant to present an argument.† We agree that the trial court erred when it denied defendantís motion without giving defense counsel the opportunity to make an argument.† However, we conclude beyond a reasonable doubt, after evaluation of the impact of the error in light of the overall strength of the case and the defenses asserted that the verdict could not have been affected by the error.† See, Heuss v. State, 687 So.2d 823 (Fla. 1996).† The error, therefore, was harmless.†

Furthermore, unless there is an absence of legally sufficient evidence on which to base a guilty verdict, a Motion for Judgment of Acquittal must be denied.† See, Everett v. State, 339 So.2d 704, 706 (Fla. 3rd DCA 1976); Garmise v. State, 311 So.2d 747 (Fla. 3rd DCA 1975). The facts before the trial court were as follows:

        there was evidence of the defendantís alcohol consumption;

        Ms. Shea Alfonso testified that the defendant smelled of alcohol; was driving poorly and acted belligerent;

        the officers testified that the defendant smelled of alcohol; that the defendantís eyes were bloodshot and glassy; that the defendant used a great deal of profanity, and made threatening remarks towards them.

We find that the evidence presented at trial was legally sufficient on which to base a guilty of DUI verdict. Because the State presented legally sufficient evidence at trial, the trial court properly denied the Appellantís Motion for Judgment of Acquittal.† It is therefore,

ORDERED AND ADJUDGED that the judgment and sentence are affirmed.

†††††††††††

DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 22nd day of March, 2000.

††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††† †††††††††††

__________________________
W. DOUGLAS BAIRD
Circuit Judge
Primary Appellate Judge

 

___________________________
NANCY MOATE LEY
Circuit Judge

††††††††††††††††††††††† ††††††††††††††††††††††† ††††††††††† †††††††††††

___________________________
R. TIMOTHY PETERS
Circuit Judge

 

††††††††††††††††††††††† ††††††††††††††††††††††† †††††††††††

Copies furnished to:

The Honorable Thomas B. Freeman

Robert S. McClure, Esq.
Assistant Public Defendant

Melissa McCullough, Esq.
Assistant State Attorney