County Criminal Court: CRIMINAL LAW- Evidence- trial court did not error in
denying appellant's motion for judgment of acquittal - jury heard evidence that
the appellant had various drugs in his system; although appellant argued that
he was tired and that this was a reasonable hypothesis of innocence, evidence that a defendant was driving, had
controlled substances in a urine test which could cause impairment combined
with a low or no alcohol level, and was observed to be impaired at the scene
after the driving is sufficient to establish a case of Driving Under the
Influence-.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.
Additionally, state's argument that the defense "just didn't add
up" was pure rebuttal. Neither this statement nor any other
statement made by the state shifted the burden of proof -Order affirmed. Broco
v. State, CRC0405631CFAES, (
IN
THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF
THE STATE OF
APPELLATE
DIVISION
DAVID BROCO,
Appellant,
v. Case No: 0405631CFAES
Lower No: CTC049542DAQTWS
STATE OF
Appellee.
____________________/
Appeal from verdict, judgment and sentence
Pasco County Court
County Judge Marc H. Salton
Curtis M. Crider, Esq.
Attorney for Appellant
Michael J. Harris, Esq., ASA
Attorney for Appellee
ORDER
AND OPINION
This
matter came before the court on defendant's appeal from a judgment and sentence entered by the Pasco
County Court. Appellant claims that the
trial court committed reversible error by denying his motion for judgment of
acquittal and by allowing the state to shift the burden in closing
argument. This court has jurisdiction.
On July 3, 2004, the appellant was arrested for Driving Under the Influence. He entered a not guilty plea and demanded a jury trial. At trial, Deputy Joseph Liddick testified that he saw defendant's car on State Road 54 at approximately 9:04 P.M. on July 3rd. He explained that there was "medium traffic"; there were no cars between his patrol car and the defendant's car but there was 'periodic' oncoming traffic. Liddick testified that he observed the defendant driving erratic. He explained:
[t]he car weaved out of the lane a few times where I first noticed it. I thought the vehicle was turning off because it slowed down to almost ten miles an hour, went back up to sixty miles an hour, back down to twenty, up to fifty-five. It was very erratic. The car, two or actually three times, went into the oncoming lane. Two of the times got jerked back into the lane. I conducted a traffic stop at that time.
Liddick testified that there did not appear to be any reason for the defendant's changing speeds and there were no traffic lights. Liddick also testified that two oncoming vehicles "actually had to avoid the Defendant. One had to apply its brakes until the Defendant's vehicle got into the proper lane. The other one actually moved over to the side of the road to avoid the Defendant's vehicle." Liddick stated that he has seen similar driving patterns during DUI investigations and a few times "with somebody who was sick or incapacitated in some way."
The deputy stated that he pulled the defendant over. He approached him and asked for his driver's license and registration. The deputy stated "[h]e appeared very incoherent at the time. I noticed his eyes were bloodshot and glassy, very slow; looked lethargic and he appeared to be under the influence of some sort of drug or alcohol." Liddick testified that defendant's speech was very slow and slurred and that he had a problem putting words together. However, Liddick testified that he did not smell any odor of any type of substance. When asked if he had seen or heard similar types of speech, Liddick stated that he had "[t]housands of times; every ody in those circumstances with people. When asked what types of circumstances he had heard that type of speech he replied "[u]nder the influence of drugs or alcohol." The deputy was asked if he stayed with the defendant long enough to form any opinion as to whether he was under the influence of something and the deputy replied "[y]es. I believed he was under the influence of drugs or alcohol."
On cross examination the deputy acknowledged that he did not know defendant or the way he normally talks, walks, or drives. He also acknowledged that he did not know how defendant does those things after he has been on the road for several hours. Liddick also acknowledged that he has observed similar driving patterns on someone who has either been sick or incapacitated but someone who is extremely tired. Liddick was asked if there was any video to show the jury but he testified that there was not.
Sergeant
Jackson testified that he responded to the traffic stop. He spoke with Deputy
Liddick to see what he had observed then asked the defendant to step out of the
vehicle "because there was a possibility that he was impaired." He
asked the defendant whether he was on any medications or had any type of
injuries, and the defendant replied that he had taken Loraset and Loratabs
earlier that day for back pain. He said he had a back injury.
On
cross examination,
Daniel
Richardson testified that he works as a toxicologist at the Florida Department
of Law Enforcement. He testified that he
performed an analysis of defendant's urine and found it contained Alprazolam
(Xanax) . He explained that Alprazolam
is a central nervous system depressant that may have effects similar to the
effects of alcohol. He testified that it could impair a person's motor
skills. He testified that he also found
marijuana in the sample.
you have got a lot of central nervous system depressants here or things that can act as depressants. . . . When you throw a whole bunch of drugs in the mix there, it's hard to say exactly what might be happening but all of them can cause motor impairment, judgment impairment; all of those sorts of things that are typical effects very similar to alcohol in terms of what the central nervous system depressants can do.
On
cross examination
On
redirect,
On
recross,
The state rested and the defense made a motion for judgment of acquittal based on the fact that the state did not prove that the specific substances found in defendant's urine was affecting defendant's normal faculties. The defense argued that nothing is taken from defendant's blood to quantify exactly what is currently in his blood stream affecting his central nervous system. Therefore, defense argued that the state could not exclude every reasonable hypothesis of innocence that perhaps defendants conduct was caused by something other than what was found in his urine, such as being sick, tired and maybe perhaps suffering from mental illness at the time he was carted away to jail. The defense cited to two cases in which although drivers both had more serious indicators of impairment, each blew a "zero, zero, zero" on the breath test and both refused a urine test. In each case, the court granted a judgment of acquittal.
The judge agreed that he too would not have let either of those two cases go to a jury because there was no alcohol and no evidence of controlled substances and each driver could be under the influence of a non controlled substance. However, the judge distinguished this case on the fact that here there is a urine test which contained multiple controlled substances. The judge noted that the sample did not contain trace amounts, but detectible amounts that are consistent according to the testimony of the lab technician and the officers. Thus, the court found that with the defendant's actions as observed by the officer's, the state clearly established a prima facie case.
Counsel attempted to argue that this was conduct equally consistent with someone not impaired and that the lab analyst could not say for sure that these substances affected the defendant. However, the judge said:
I think the jury can draw reasonable conclusions based on that testimony and the multitude of different drugs that were in his system that he was affected by those drugs and obviously you can attempt to counter that, but that is clearly a jury question at this point. The motion will be denied.
The defense called Allison Kapantais to the stand. She testified that she was the defendant's girlfriend and was with him on July 3rd. She stated that he went to visit her at her at around 4:00 or 5:00 P.M. that day and then she and her sister drove around with defendant trying to find a hotel for him to stay at. She stated that he was acting fine that day "except that he was really tired from driving all day." She testified that his speech was "[r]egular like he always talks", his ability to stand was "perfect" and that "he is a good driver except that that day he was really tired." Counsel asked Kapantais why defendant was pulled over. She stated that she was in the back seat and her sister was in the front seat. She was asked if she had any idea as to why he was pulled over 'in her own mind.' She said "[h]e was really tired so he was kind of driving like--he was like going pretty slow and then he'd speed up a little bit" probably from thirty to fifty miles per hour. She testified that the car was pulled over and defendant was asked to step outside and perform tests. She stated that she ". . . thought he was doing pretty good because [she] was watching him the whole time and he wasn't stumbling or anything." She stated he was able to keep his balance and she never saw him sway. She testified that she was with defendant for two hours prior to the stop and did not observe him consume any alcohol, Oxycodone, Hydrocodone, cocaine or marijuana. Counsel asked "[f]rom someone who knows Mr. Broco, would you say he was impaired that night by any controlled substances or beer?" and she replied that he was not.
On cross examination the witness said she saw him for the first time around 6:00 or 7:00 P.M. She testified that she was not sure where they were pulled over because she just moved to the area. The state asked "[t]here is no hotels in that area; are there?" and she replied "No." She also acknowledged that the stop occurred around 9:00 P.M. and it was dark out. She acknowledged that she did not have a flashlight. She testified that defendant did not drive into the other side of the road.
The
appellant testified that he lived in
On cross examination the defendant stated that was not feeling the effects of any drugs that night. He admitted that he did change speed and he went off the road just a couple of times. He stated he did not recall going into oncoming traffic. He admitted that when he took cocaine he was also drinking alcohol. He denied that he had a beer earlier in the day.
The defense rested and renewed the motion for judgment of acquittal stating "[r]ight now it doesn't exclude every reasonable hypothesis of innocence."
During closing argument , the prosecutor (referring to the drugs in the urine and defendant's behavior ) stated:
. . . [a]ll of them are consistent and that is the only reasonable explanation for his behavior; was he was on drugs. Now the defense of that does not do enough to show that this is not a provable case. This case has been proven and the Defense just didn't add up. You have the defendant and his girlfriend and they didn't even have all he same things. . .
Appellant
argues that the motion for judgment of acquittal should have been granted
because the toxicologist could not testify whether or not the drugs found in
his urine affected him at the time he was driving or when the defendant took
them. This Court finds that the trial
court did not error in denying appellant's Motion for Judgment of Acquittal. A
motion for judgment of acquittal
should be granted in a circumstantial evidence case if the state fails to
present evidence from which the jury can exclude every reasonable hypothesis
except that of guilt. Orme v. State,
677 So.2d 258, 262 (Fla.1996). In this
case, the jury heard evidence that the appellant had various drugs in his
system. Although the appellant argues
that he was tired and that this was a reasonable hypothesis of innocence, evidence that a defendant was driving, had
controlled substances in a urine test which could cause impairment combined
with a low or no alcohol level, and was observed to be impaired at the scene
after the driving is sufficient to establish a case of Driving Under the
Influence. See State v. McClain, 525 So. 2d 420, 423 (
Appellant
also argues that by stating "the defense just didn't add up", the
prosecutor impermissibly shifted the burden of proof. However, review of the record reveals that
the appellant and his girlfriend testified to facts completely contrary to the
state's witnesses, essentially claiming that the evidence was false. This Court finds that the state's argument
that the defense "just didn't add up"
was pure rebuttal. Neither this
statement nor any other statement made by the state shifted the burden of
proof. Stancle v. State, 854 So.
2d 228 (
ORDERED AND ADJUDGED that the judgment and sentence of the trial court be affirmed.
DONE AND ORDERED in Chambers at New
Port Richey,
________________________
Primary Appellate Judge
_____________________
Daniel D. Diskey
Circuit Judge
______________________
Circuit Judge
Copies furnished to:
Honorable Marc H. Salton
Curtis M. Crider, Esq.
Michael J. Harris, Assistant State Attorney