County Criminal Court: CRIMINAL LAW --- Jury Trial Evidence --- Corpus delicti rule met where witness testified he saw defendant racing; motion for judgment of acquittal properly denied where defendant admitted racing. Judgment and sentence affirmed. Neumann v. State, No. CRC 06-69 APANO (Fla. 6^th Cir. App. Ct. May 29, 2008).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

DAVID ANTHONY NEUMANN

Appellant,

Appeal No. CRC 06-69 APANO

UCN522006AP000069XXXXCR

v.

STATE OF FLORIDA

Appellee.

__________________________/

Opinion filed _________________.

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge John Carballo

Walter L. Grantham, Jr., Esquire

Attorney for appellant

Nathan T. Vonderheide, Esquire

Assistant State Attorney

ORDER AND OPINION

(J. Newton)

THIS MATTER is before the Court on the defendant, David Anthony Neumann’s, appeal from his conviction following a non-jury trial for reckless driving and racing. After reviewing the briefs and record, this Court affirms the judgment and sentence.

Facts

At approximately noon, while parked at a traffic light in a business area, a witness observed two cars also stopped at the traffic light. The witness testified that one car had five teenagers in it, and that they were “kind of jumping around.” R. 78. That car started spinning its wheels and took off fast. The other car, however, (the defendant’s car) rapidly accelerated (“shot off like a rocket.” R. 63), and passed the other car, going a high rate of speed. The witness estimated that the defendant’s car was travelling 70-80 m.p.h. in a 45 m.p.h. zone. He said that it appeared he was racing the car next to him. The defendant’s car crashed into the rear of another vehicle that had pulled out of a parking lot but was fully within the lane. The force of the collision was such that it pushed the victim’s vehicle through an intersection. When the police arrived, the defendant admitted racing the other car and traveling at least 70 m.p.h. He tried to explain that the teenage passengers in the other car were “egging him on at the light.” The occupants of the car that was racing the defendant were not located.

Motion for judgment of acquittal properly denied on racing charge

The defendant claims that the trial court erred in denying his motion for judgment of acquittal on the racing charge because the evidence was only circumstantial. This Court disagrees that the evidence was just circumstantial. The defendant admitted racing, and a confession is direct evidence. See Meyers v. State, 704 So.2d 1368 (Fla. 1997).

The defendant tries to negate this by arguing that the admission should never have been admitted because of the corpus delicti rule. Briefly stated, the corpus delicti rule requires the State to present some proof of the elements of the crime before any statement from the defendant can be used. This proof can be established by circumstantial evidence, and it need not be uncontroverted or overwhelming. See Esler v. State, 915 So.2d 637 (Fla. 2d DCA 2005). The defendant claims that without the admission that he was racing, there is insufficient evidence that he was racing. This Court disagrees. Viewed, as they must be, in the light most favorable to the State, the observations of the witness were sufficient to establish the elements of the crime. He observed what appeared to be teenagers in one car prodding the defendant to race them. And when the light changed, both cars accelerated, one car squealing its wheels, while the defendant’s car “shot off like a rocket.” This testimony is sufficient to establish the corpus delicti of racing.

Motion for judgment of acquittal properly denied on reckless driving charge

Next, the defendant claims the trial court erred in denying his motion for judgment of acquittal on the reckless driving charge. The defendant argues there was insufficient evidence because speed alone is insufficient to support a reckless driving charge. There was, however, more than excessive speed present in this case. The testimony established that the defendant rapidly accelerated --- “shot off like a rocket” ---and quickly exceeded the speed limit by at least 25 m.p.h. Moreover, he struck another vehicle directly in the rear. In addition, it was noon time in a business area. Under the Esler standard, this testimony was sufficient.

Lay testimony properly admitted into evidence

In his third issue on appeal, the defendant argues that the trial court should have sustained the objection to the admission of the testimony of the witness that the defendant was travelling between 70 and 80 m.p.h. and was racing the other car. The defendant bases his argument on the fact that the witness, when asked how fast the defendant was travelling, responded: “Just guessing, 70-80.” R. 71. That statement, however, was supplemented by the witness. He explained that after the light turned green he proceeded to 45 m.p.h., and the defendant was double his distance, or more, ahead of him. As noted by the trial court, a lay person can testify about the speed of another vehicle. See e.g., Reeves v. State, 647 So.2d 994 (Fla. 2d DCA 1994).

As noted above, there was ample evidence from the circumstances to support the testimony of the witness that the defendant was racing the other car. It was, therefore, proper to allow this testimony.

IT IS THEREFORE ORDERED that this Court affirms the judgment and

sentence.

DONE AND ORDERED in Clearwater, Pinellas County, Florida this _____ day of May, 2008.

_____________________________ _______________________

Joseph A. Bulone David A. Demers

Circuit Court Judge Circuit Court Judge

___________________________

Cynthia J. Newton

Circuit Court Judge

cc: Office of the State Attorney

Honorable John Carballo

Walter L. Grantham, Jr., Esquire