IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
JOHNNY LEE HART
v. Appeal No. CRC 06-68 APANO
Opinion filed _____________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge John Carassas
Ryan Thomas Truskoski, Esquire
Attorney for appellant
Justin S. Peterson, Esquire
Attorney for appellee
ORDER AND OPINION
THIS MATTER is before the Court on Defendant, Johnny Lee Hart’s appeal from a conviction, after a jury trial, of loitering or prowling, a second degree misdemeanor, in violation of § 856.021 Fla. Stat. (2006). The Defendant argues that his right to a fair trial was violated when the State was allowed, over defense objection, to repeatedly refer to the area where he was arrested as a “high crime area”.
Factual Background and Trial Court Proceedings
Officer William Hodgson of the
Clearwater Police Department observed the defendant, Johnny Lee Hart, behind
the Food Mart on
Prior to trial, the defense moved in limine to prevent the State from eliciting testimony that the defendant was arrested in an area known for drug sales and usage because it was unduly prejudicial. The trial court denied the motion because it is mentioned in the complaint that this was the reason why law enforcement was there. In its opening statement, the prosecution told the jury that the defendant was arrested in a high crime area. The defense objected and moved for a mistrial. Officer Hodgson testified, over defense objection, that he patrols drug areas and high crime areas. Over another defense objection, the officer testified that on February 1, 2006 he was on patrol in a high crime area. Officer Hodgson testified that Defendant’s actions were not usual behavior for a law abiding individual and that the circumstances warranted a reasonable concern for the safety of persons or property in the area yet again as a high crime area. In closing argument the State referred to the area as a “high crime area”. The jury returned a verdict of guilty.
The Defense Argument
The Defendant argues that he was prejudiced because the State was allowed to repeatedly make an impermissible point. That is, the State made reference in their opening statement, their case in chief and their closing argument to the fact that the Defendant was arrested in a “high crime area”. The defense cites five cases as authority for its argument that a prosecutor’s characterization of the area where a suspect was arrested as a “high crime area” is improper because that detail is irrelevant to the issue of guilt and because it can be unduly prejudicial because it tends to establish bad character.  Four of the cases cited by Defendant involved charges of possession or sale of contraband drugs. The remaining case involved a charge of burglary of a conveyance. None of the cases cited by the defense involved a prosecution for loitering or prowling.
The difficulty with the defense argument is that a prosecution for loitering or prowling is different. In loitering or prowling cases the location where the alleged offense occurred and the totality of the circumstances are relevant to the issue of guilt.
A loitering and prowling conviction under section 856.021 requires proof that the defendant was loitering or prowling in a place, at a time, or in a manner unusual for a law abiding individual under circumstances that warrant a justifiable and reasonable alarm or concern for the safety of persons or property in the vicinity.
State v. Lookretis, 657 So2d 1237 (Fla. 2nd DCA 1995); See also K.R.R. v. State, 629 So.2d 1068 (Fla. 2nd DCA 1994). Reported cases involving prosecutions for loitering or prowling frequently mention the fact that the crime occurred in a “high crime area”. 
The State’s Response
The State agrees with the defense argument that the trial court in the present case abused its discretion in allowing the State to refer to the area in which the Defendant was arrested as a “high crime area”. However the State argues that the error was harmless.
The problem with the State’s response is that it fails to address the issue that the location of an alleged offense is relevant to the issue of guilt in a prosecution for loitering or prowling. The standard jury instruction for loitering or prowling, instruction 29.7 provides:
To prove the crime of Loitering or Prowling, the State must prove the following two elements:
1. [Defendant] loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals.
2. Such loitering and prowling was under circumstances that warranted justifiable and reasonable alarm or immediate concern for safety of persons or property in the vicinity.
The place where the alleged loitering and prowling was committed is not only relevant; it is one of the central facts that must be proven to establish guilt, if it is to be established.
Analysis and Conclusion
a general matter, whether identifying a location as a “high crime area” is unduly
prejudicial must be evaluated on a case-by-case basis. Gillion v. State, 573 So2d 810 (
An examination of the issue presented in this appeal must begin with the understanding that the place where the alleged loitering and prowling was committed is relevant. Evidence describing that location is evidence which tends to prove or disprove a material fact. However even though such evidence is relevant, it may still be inadmissible if its probative value is substantially outweighed by danger of unfair prejudice. Therefore the trial court is responsible to conduct an analysis pursuant to § 90.403, Fla. Stat. (2006).
A trial court has broad discretion
not only in determining the relevance of evidence, but also in determining
whether its probative value outweighs any prejudicial
effect, thereby rendering such evidence admissible; such a determination will
not be disturbed on appeal absent an abuse of discretion. Robertson v. State, 780 So.2d 106 (
On appeal from a ruling including or excluding evidence on the ground that its probative value did or did not outweigh the danger of unfair prejudice, the sole issue is whether the District Court abused its discretion. In reviewing a decision concerning the probative value and prejudicial attributes of particular evidence the appellate court does not reweigh the value of the material against the potential harm to the defendant, but looks at the evidence in the light most favorable to its proponent, thus maximizing its probative value and minimizing its prejudicial effect.
An appellate court normally defers to the trial court’s judgment, unless the trial court has clearly abused its broad discretion, as, for example, by admitting evidence which is so prejudicial as to outweigh its probative value.
29 Am. Jur. 2d Evidence § 329 (2007).
In the present case the testimony that the area where the alleged loitering or prowling occurred was a “high crime area” was relevant to prove a material fact; that is that Defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals. After review of the proceedings in the trial court, this court concludes that the decision of the trial court to allow that testimony and subsequent mention of that testimony in final argument was not an abuse of discretion. The conviction and sentence of the Defendant should be affirmed.
IT IS THEREFORE ORDERED that the conviction and sentence are affirmed.
Linda R. Allan Circuit Court Judge
R. Timothy Peters
Circuit Court Judge
John A. Schaefer
Circuit Court Judge
cc: Honorable John Carassas
Ryan Thomas Truskoski, Esquire
Justin S. Peterson, Esquire
 Johnson v. State, 670 So2d 1121 (
 Lookretis at 1238; C.H.S. v. State, 795 So2d 1087 (