County Criminal Court: CRIMINAL LAW-Jury Trial/Evidence-where evidence tends in any way to establish a reasonable doubt of defendant's guilt, it should be admitted-since it can not be said that exclusion of the evidence at issue did not affect the verdict, the exclusion was harmful-Judgment and sentence reversed. Garcia v. State, No. 03-00049. (Fla. 6th Cir. App. Ct. January 31, 2005).













††††††††††† Appellant,


vs.††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No: CRC0300049CFAES







Appeal from verdict, judgment and sentence Pasco County Court


County Judge Debra Roberts


Paul E. Firmani, Esq.

Attorney for Appellant


Michael J. Harris, Esq.

Attorney for Appellee





††††††††††† THIS MATTER is before the Court on the defendantís appeal of the judgment and sentence entered by the Pasco County Court after a jury trial.After reviewing the briefs and record, this Court reverses the decision of the trial court.

††††††††††† Appellant was charged with battery on July 15, 2002. The defendant went to jury trial.The theory at trial was that appellant only acted in self defense when he struck the victim, after she had initiated the physical violence when she got upset upon realizing that her male friend of the evening, TJ, was leaving against her wishes. At trial, the defendant attempted to testify as to the verbal exchange between himself and the victim immediately before and during the physical altercation giving rise to the charge.The court sustained a series of objections which resulted in all of the statements of both parties being excluded from evidence. [1]

††††††††††† .A trial judge's ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. Booker v. State, 397 So.2d 910 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981). The test of admissibility is relevancy. Johnson v. State, 130 So.2d 599 (Fla.1961). To be admissible, evidence must be both logically and legally relevant. Wolf v. State, 72 Fla. 572, 73 So. 740 (1917).; Blanco v. State, 452 So.2d 520, 523 (Fla.,1984).Appellant alleges that the trial court erred in excluding the statements because they were relevant to his theory of self defense. The state apparently does not contest error; the state only argues that any error was harmless. This Court disagrees and finds the error was not harmless. "The [harmless error] test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.State v. DiGuilio,  491 So.2d 1129, 1139 (Fla.,1986).

††††††††††† There was no question that the victim suffered bruises from the actions of the appellant. The only issue to be decided by the jury was whether the appellant acted in self-defense.The appellant testified that he "did what he had to do" in self defense, in order to get the victim off his back and to stop attacking him, and there was no evidence, other than the victim's testimony, to contradict the appellant's version of the events.Nelson v. State  388 So.2d 1276, 1278 -1279 (Fla.1980). This Court can not saybeyond a reasonable doubt that the error did not affect the verdict.State v. DiGuilio,  491 So.2d 1129, 1139 (Fla.,1986).

††††††††††† In this case, the victim testified that after a night out at a drinking establishment she did not believe she was capable of driving home, and asked an individual by the name of TJ, who she had met that night, to drive her home instead. TJ drove the victim home while the appellant and Rivera, another individual who were acquaintances of TJ followed in another vehicle.The victim testified that she reluctantly allowed the three men to come into her apartment and allowed them to "hang out" while she went into the bathroom because she was not feeling well. TJ went into the room to check on her and then left.Subsequently, appellant went into the room to check on her.An argument ensued between appellant and the victim.The victim testified that appellant was upset because she was being rude and inhospitable.The victim testified that she ordered the appellant out of the apartment and as they approached the door the appellant pushed back on the door and it hit the victim and she fell to the ground. The victim then testified that the appellant struck her and she sustained an abrasion to her right arm from being tossed into the walls, a swollen elbow from hitting the floor, fist marks to her face and two teeth were knocked out.The appellant then left, and a neighbor assisted with calling the police. On cross examination, the victim denied that she was upset because TJ was leaving and that she initially started the confrontation by pushing the appellant into the tub, kicking him as he walked out the door, and ultimately jumping on his back as he tried to walk away outside of the apartment.

††††††††††† The defense called Rivera who testified that when the appellant went in to check on the victim, he heard a thud.The victim came out screaming and told them all to leave.TJ and Rivera left and went down the stairs.Rivera looked up and could see the victim on the appellant's back screaming and hitting him. He saw the appellant 'doing whatever he could' to get the victim off of his back and to come down the stairs. Rivera testified that the appellant was flailing his arms to try to get the victim off of his back and that she ultimately fell to the ground off of him.

††††††††††† When the appellant took the stand, he attempted to explain that when he went to check on the victim, who was sick in the bathroom, he told her "well, you know, we're going to get going."The state objected and the court sustained the objection as hearsay. Appellant then testified that she became angry at what he said and pushed him into the tub, and then she ran looking for T.J. He then proceeded to testify that at that point, he told her they were leaving.The state objected and the court sustained the objection as hearsay. Appellant then went to the door and proceeded to leave the apartment.He explained that he and the victim had words and as he walked out she kicked him in the buttock area in such a way that it actually hit his testicles from behind. He testified that he then became very upset and said "If you were a guy I would punch you in the face." When he was about to walk away she grabbed him and said "I'm not scared of you. . . "The state objected and the trial court sustained the objection. These statements exchanged between appellant and the victim were relevant to appellant's theory of self defense and provided an explanation of his actions. Where evidence tends in any way to establish a reasonable doubt of defendant's guilt, it should be admitted. Rivera v. State, 561 So.2d 536 (Fla.1990).†† Since it can not be said that exclusion of this evidence did not affect the verdict, the exclusion was harmful. State v. DiGuilio,  491 So.2d 1129, 1139 (Fla.,1986).


IT IS THEREFORE ORDERED that the judgments and sentences be REVERSED.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __

day of January,2005.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† W. Lowell Bray, Circuit Judge

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Primary Appellate Judge


††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Daniel D. Diskey

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge


††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Stanley R. Mills

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge


Copies to:

Office of the Public Defender

Office of the State Attorney

inadmissiblein admiss

[1] Unfortunately, counsel for the defendant did not proffer to the court all of the statements which he obviously wished to place in evidence. Neither this Court nor the trial court has any way of knowing whether other statements were admissible without knowing what those statements were.Similarly, without knowing more about the verbal exchange, it is difficult to judge how significant the exclusion of these statements was in determining the jury's verdict.Therefore, the only statements preserved for this Court's review were the defendant's statements "[w]e're going to get going" and "we were leaving"as well as one of the victim's statements "I'm not scared of you."