County Criminal Court: CRIMINAL LAW- Evidence- trial court did not error in denying appellant's motion for judgment of acquittal - the state established a prima facie case of the charged offense prior to resting and as a result, the appellant's motion for judgment of acquittal was properly denied-even if defense renewed motion, evidence was still sufficient-when sitting as the trier of fact, the trial judge has the "superior vantage point to see and hear the witnesses and judge their credibility- a judgment of conviction is presumed correct and a defendantís claim of sufficiency of the evidence cannot prevail where there is substantial competent evidence to support the verdict-Order affirmed. Harris v. State, No. 04-2578CFAES (Fla. 6th Cir. App. Ct. February 15, 2005 ).
















v. ††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† CASE NO: 04-2578CFAES






County Judge Marc Salton


Miriam Velez, Esq.

Attorney for Appellant


Office of the State Attorney





††††††††††† This matter came before the court on defendant's appeal from ajudgment and sentence entered by the Pasco County Court.Appellant claims that the trial court committed reversible error by denying defense counsel's motion for judgment of acquittal.This court has jurisdiction. Fla. R. App. P. 9.030(c). We find no error and affirm.

††††††††††† On September 11, 2003, the defendant was involved in a motor vehicle accident with another vehicle, driven by Robert Lucchesi.Defendant was charged with Leaving the Scene of an Accident in violation of Florida Statute 316.061[1].A non jury trial was held on May 10, 2004.At trial, Lucchesi testified that after the accident both he and the defendant stopped their vehicles. He explained that the defendant exited her vehicle and began yelling ; he was trying to calm her down.At that point, he told her he was going to call the police to file a report.Lucchesi testified that the defendanttold him she lived down the street and "was saying something about she had to go home to get husband."Lucchesi testified that the defendant walked and left her vehicle and he waited for the police. He stated that the defendant never came back to the scene but that her husband came back with her license and the husband said that she (defendant) could not come back. Lucchesi explained that he had provided his driver's license to the defendant and told her his name but defendant left the scene and did not provide him with her driver's license or any insurance information.Lucchesi further testified that there was a little damage to both vehicles.

††††††††††† Trooper Valdez testified that he was dispatched to the accident.When he arrived on the scene, he observed defendant's van on the side of the road, by itself, andLucchessi's vehicle in the road.He explained that the defendant's left rear bumper was torn off and Lucchesi's vehicle was damaged on the right left corner. He estimated Lucchessi's damage to be about $1000.00 and defendant's damage to be about $500.00.Valdez testified that Lucchesi was present, as well as a deputy.†† He testified that he obtained information on defendant's residence off of the registration.He explained that he had been on the scene for a quite a while, and was about done with the report, when defendant's husband arrived to pick up the van.The trooper testified that the husband did provide him with defendant's driver's license.Valdez testified that he went to the residencebut the defendant would not come to door.He testified that he could hear anargument inside and after a long amount of time, the defendant finally came outside. When she did finally exit the home, Valdez gave her an opportunity to make a statement but she would not speak and she was very uncooperative.††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

††††††††††† The state rested and the defense made a motion for judgment of acquittal which was denied.

††††††††††† The defendant took the stand and explained that after the accident she stopped her vehicle and got out.She stated "[a]s soon as I hit the ground -- my foot hit the ground, my head, back, and neck were throbbing and I knew I was hurt."She testified that before she could say anything to the other driver he came to her and said "why did you hit my car.You came barreling out of nowhere."She explained that he was very belligerent towards her and argumentative.She further testified that he did not render her service and did not ask her if she was hurt.She responded to him that he was the one who hit her and that there was a course of words exchanged.She testified that Lucchesi frightened her.She said "he was dressed in a manner that scared me.He had a bandana on his head and necklaces, and he had tattoos, jeans.He was very belligerent towards me."The defendant testified that Lucchesi did call 911and that he was very quick to say there were no injuries; but he never asked her if she was hurt nor rendered her any help.The defendant testified that she did not have any other means other than Lucchesi's cell phone to summon assistance for herself. She then explained thatLucchesi let her use his cell phone at which time she tried to call her husband three or four times, but got a busy signal.She said "I really felt that it was necessary for my husband to be at the scene."The defendant stated that she lives "about seven streets away from the crash."She testified to the following: " I told the man that I would like to go and get my husband to come back to the accident.I said that I would like your driver's license.I would like your insurance card please sir.He gave them to me and I said, I live in the neighborhood.Itís a few streets down.I had the intention of going home and getting my husband to come back."She testified that she had just been released from the hospital a week earlier for a severe gastro intestinal infection and a urinary tract infection.She was on IV's on both hands, and she had diarrhea, and earlier that day, she had also suffered from diarrhea and was running a fever.She proceeded to testify that she was very concerned about her autistic son because he had a very regimented schedule and if his schedule is broken up in any way, or if she is going to be late, he becomes 'ballistic' and she is basically the only person in the family that can manage him, so she was very concerned in that respect, and she was having diarrhea problems.She wanted to go home and basically use the bathroom.The defendant testified that when she walked in her house, her husband asked 'why are you here' and she explained that she was just involved in a car accident.Her husband said "you look white as a ghost.It looks like you've been injured; I'm going to call 911" which he did.A medical unit was dispatched to her house.The call was then transferred to the sheriff's department and at that time she gave the sheriff the information about the other driver over the phone. She stated "my husband also talked to that sheriff, and we got his permission to stay at the house until the medical team arrived to check me over to make sure that I was either well enough to return on foot and, if not, the deputy that was at the scene would come back to the house and take me back." When asked if she had been arguing with her husband as Trooper Valdez testified, she said "I was communicating loudly.I am hard of hearing.I was in the bathroom.I had diarrhea and I was taking longer than they, obviously, thought I should . . . "†† She testified when she did finally leave the bathroom she went to the garage door and said "Sir, I'm ready to give my statement and he asked me one question.The question was:Ma'am were you involved in an accident and I said yes. . . .".The defendant then testified that the trooper told her to turn around, which she did, and he then put handcuffs on her.She further testified that she did not remember him reading her rights at that time, and that her rights were read when she got down to the county jail.The defendant stated that she was not allowed to give her statement.She stated that the trooper drove her back down to the traffic accident scene and he proceeded to write up his arrest report.

††††††††††† On cross examination she was asked ". . . you seem to have given several reasons as to why you left the scene.I guess one of the reasons is that you needed medical attention?" to which she responded 'yes sir.'She was then asked "[a]nd you testified the defendant Öcalled the police and said that there was no injuries and then hung up the phone preventing you from getting treatment; is that correct?"The defendant stated that it was.The prosecutor then asked "[a]nd then you testified that you tried to call your husband several times on his phone.Was this phone the victim's phone?"and she responded that it was.The prosecutor then pointed out that she could have at that time called 911.She testified that she could, but was not thinking straight. The prosecutor then asked "so you were thinking about calling 911 when the victim had the phone in his hand but after you had the phone in your hand . . . " and she stated "the idea for him was to call 911 to get someone on the scene and he quickly said no injuries before he even came over."The prosecutor then pointed out that although she said her son had a rigid schedule and that she needed to go because she was the only one who took care of him-when she arrived home her husband was surprised and asked why she was back home.The prosecutor pointed out that she arrived home prior to when her husband expected her and said "if your husband didn't expect you home it seems to me that you were not supposed to be home, then."The defendant responded "I could have been home, sir."Finally, the prosecutor asked about being injured, and yet being able to walk seven blocks to her home.She stated she barely made it and didnít realize how injured she was.When asked if she could have stayed around for a few minutes she said she could not because she had diarrhea. She testified that it took her ten minutes to get home.

††††††††††† The defendant's husband testified that after calling 911 he went back to the scene and met with the deputy and gave him back the other driver's documents.At that time he explained that his wife was feeling badly and was being treated by the paramedics.He asked if it was alright for her to stay there.He did not return back to his home with the deputy, he walked home. He stated that he was there when the deputy went back to his home and his wife was in the kitchen area being treated.She then asked if she could go ahead and use the bathroom. He testified that he believed, while his wife was in bathroom, the deputy left.

††††††††††† On cross examination, defendant's husband testified that he was not expecting to see her home at that time.He testified that he was capable of taking care of his son "within bounds."Defendant's husband testified that he believed there were two visits from law enforcement. He also testified that he was not arguing with his wife and said "the result of the accident has left her with unsound hearing and she was through an [enclosed] bathroom door."He said they could not communicate very well, so their voices were slightlyelevated. The defense rested.No second Motion for Judgment of Acquittal was made.

†††††††††† The trial court found that the state established beyond a reasonable doubt that the defendant did leave the scene of the accident and she did so without complying with the provisions of Florida Statute 316, by giving the necessary information to the other party.The court stated that it believed a lot of what the defense presented was mitigating information.The Court said "I donít think she was intending to leave the scene and not allow anybody to find out who she was. . .. .but technically she did leave the scene."'The court also cited that there were some serious problems with the defendant's testimony. This Court does not find error.The state presented evidence that appellant was involved in a vehicle crash; there was damage to both vehicles; appellantdid not provide any information to the other driver; and appellant left the scene.None of these facts were contested.Thus, the state established a prima facie case of the charged offense prior to resting and as a result, the appellant's motion for judgment for motion of acquittal was properly denied. Moreover, even if the appellant renewed her Motion for Judgment of Acquittal after the close of her case, the result would be the same.First, as found by the trial judge, a lot of what the defense presented was mitigating evidence.Second, the trial court found the defendant failed to remain at the scene and failed to exchange information.As the judge found, she could have given that information before she left. Finally, the judge had credibility problems with the appellant's testimony. When sitting as the trier of fact, the trial judge has the "superior vantage point to see and hear the witnesses and judge their credibility." Guzman v. State, 721 So.2d 1155, 1159 (Fla.1998), cert. denied, 526 U.S. 1102, 119 S.Ct. 1583, 143 L.Ed.2d 677 (1999).Thus, so long as its decisions are supported by competent, substantial evidence, an appellate court will not substitute its judgment for that of the trial court onthe credibility of the witnesses and the weight to be given to the evidence.Id.


IT IS THEREFORE ORDERED that the judgment is affirmed.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of February, 2005.

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

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

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



††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ____________________

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

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


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

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

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


Copies furnished to:

Miriam Velez, Esq.

Office of the State Attorney

[1]That section provides: "The driver of any vehicle involved in a crash resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop such vehicle at the scene of such crash or as close thereto as possible, and shall forthwith return to, and in every event shall remain at, the scene of the crash until he or she has fulfilled the requirements of s. 316.062. . . . "FS 316.062 provides that "The driver. . . shall give his or her name, address, and the registration number of the vehicle he or she is driving, and shall upon request and if available exhibithis or her license . . . to. . .the driver or occupant of or person attending any vehicle . .. and shall give such information, and upon request, exhibit such license . . . to any police officer at the scene. . . ".