Criminal Court: APPELLATE PROCEDURE
– Preservation of Error – trial judge’s misstatement to jury was not properly
preserved for appeal – no specific or contemporaneous objection was ever lodged
– even if preserved, misstatement would be harmless in light of correction,
curative instruction, and evidence adduced – Conviction affirmed.
Matthews v. State, No. 01-19588 (
Criminal Court: CRIMINAL LAW – Jury Trial/Evidence – sufficiency
of evidence – prosecution for violation of injunction for protection against
domestic violence and criminal mischief – testimony of ex-wife and friend
that appellant approached and tried to talk to ex-wife upon leaving sports
bar was sufficient evidence to prove prima facie case for violating injunction
– testimony of ex-wife that appellant reached for knife, bent over near her
car, after which she heard tires deflating and saw appellant fleeing, and
testimony of friend concerning appellant’s admission to slashing ex-wife’s
tires, was sufficient to prove prima facie case for criminal mischief – Conviction
affirmed. Matthews v. State,
No. 01-19588 (
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF
vs. APPEAL NO: CRC01-19588CFANO
Opinion filed April _____, 2003.
Appeal from a decision of the
Amy M. Williams, Judge.
Robert L. Hambrick, Esquire
Attorney for Appellant.
Thea Dalklaitsis, Esquire
Assistant State Attorney.
ORDER AND OPINION
In the lower court, Matthews was convicted by jury verdict of violating an injunction for protection against domestic violence and criminal mischief. He was sentenced to 270 days in county jail and ordered to pay $200 in restitution. On appeal, Matthews argues that the trial judge’s misstatement of the charges prior to jury selection tainted the jury panel and caused him undue prejudice. He also asserts that the evidence adduced at trial was insufficient to support the verdicts. We affirm.
The record reflects that prior to jury selection, the trial judge inadvertently informed the jury that Matthews was charged with battery and criminal mischief. Matthews was actually charged with violating an injunction for protection against domestic violence and criminal mischief. After the trial judge misspoke, defense counsel approached the bench and directed the trial judge’s attention to the error. In response, the trial judge corrected herself, told the panel that she misspoke, and apprised the panel of the true charges. After consulting with Matthews, defense counsel requested a curative instruction, which the trial judge gave. The trial judge also stated: “This is not a domestic battery case, and I don’t want you to hold that against the defense in any way. Please realize that I misspoke and please don’t hold that against the defense.”
argues that the trial judge’s misstatement caused him undue prejudice and
tainted the jury panel. We are unable
to consider this issue, however, because it was not properly preserved for
appeal. Defense counsel never made a specific and contemporaneous
objection in the lower court. Steinhorst
v. State, 412 So. 2d 332 (
Next, Matthews asserts that the evidence adduced at trial was insufficient
to support his convictions. To prove
the violation of an injunction for protection against domestic violence, the
State was required to show that an injunction was lawfully in place, and that
Matthews telephoned, contacted, or otherwise communicated with the petitioner
directly or indirectly. See
Based on our review of the record, we find there to be sufficient, competent evidence to support the jury’s verdict of guilt as to the violation of an injunction for protection against domestic violence. Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981) (“the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.”).
As for the offense of criminal mischief, the State was required to
prove that Matthews willfully and maliciously injured or damaged the real
or personal property of another. See
on our review of the record, we find there to be sufficient, competent evidence
to support the jury’s verdict of guilt as to the offense of criminal mischief.
Matthews argues that “as to the criminal mischief charge there are
far reaching conflicts in the evidence which show a lack of sufficient evidence
to uphold a conviction.” However, the role of an appellate court is not
to reweigh conflicts in the evidence. Neal
v. State, 792 So. 2d 613, 615 (
AND ORDERED in Chambers, at
JOHN A. SCHAEFER, Circuit Judge
W. DOUGLAS BAIRD, Circuit Judge
NANCY MOATE LEY, Circuit Judge
cc: Robert L. Hambrick, Esquire
State Attorney’s Office