NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
DORETTE M. HOWARD
v. Appeal No. CRC 08-00011 APANO
Opinion filed _____________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Robert Dittmer
Joseph C. Bodiford, Esquire
Attorney for Appellant
Paul Ernest Bolen, Esquire
Attorney for Appellee
ORDER AND OPINION
THIS MATTER is before the Court on Appellant, Dorette M. Howard’s, appeal from a conviction, after a jury trial, of Unlawful Confinement of Animals, a first degree misdemeanor, in violation of § 828.13 Fla. Stat. (2006). After review of the record and the briefs, this Court affirms the judgment and sentence.
Factual Background and Trial Court Proceedings
On October 19, 2006, the Appellant, Dorette Howard, was issued a Notice to Appear/Ordiance Violation for the offense of Unlawful Confinement of Animals. The notice alleged:
Two dogs were confined to a cage without sufficient supply of good wholesome food and water and kept in a cage which size prevents them from wholesome exercise and change of air. Dogs in question were taken by the Humane Society for their health/welfare.
On January 23, 2008, a Misdemeanor Information was filed charging the Appellant with two counts of Neglect or Abandonment of an Animal, in violation of Chapter 828.13, Florida Statutes. The Information alleges the offenses occurred on or between October 13 and October 19, 2006. Also on January 23, 2008, a jury trial was conducted and the Appellant was found guilty by the jury on both counts of the Misdemeanor Information.
At trial, the State presented three witnesses. A neighbor of Appellant testified that he heard the dogs, which were confined in a cage on Appellant’s lanai, whining and in distress from October 14 through October 17, 2006. A Pinellas County Sheriff’s Deputy testified that on October 19, 2006 he arrived at the residence and investigated finding “the dogs confined in a cage that I felt was not humane, filthy conditions, unsanitary”. The final witness in the State’s case was a certified veterinary technician who was the manager of medical services at the Humane Society of Pinellas. That witness testified that she had responded to the scene. The dogs were covered in urine and feces. Their feet were wet with urine. Their coats were stained with feces. Theses stains did not wash out after bathing the dogs at the humane society which indicates repeated exposure to being in urine and feces. There were urine scalds on the pads of the dogs’ feet. There had been food in the cage but it was stomped on and mixed with feces. The water containers were empty. The State also introduced photographs into evidence as State’s Exhibits 2 through 26. After the State rested its case, Appellant moved for a judgment of acquittal which was denied. At sentencing, the Court adjudicated the Appellant guilty on both counts and placed her on terms of probation with certain other conditions and sanctions.
of Review. In reviewing a motion for judgment of
acquittal, a de novo standard of review applies. Pagan v. State, 830
So.2d 792, 803 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278,
156 L.Ed.2d 137 (2003); State v. Fagan, 857
So2d 320 (
B. Argument and Analysis. The Appellant argues the trial court erred by denying the Motions for Judgment of Acquittal made at the conclusion of the State’s case and again at the conclusion of the Appellant’s case. Appellant argues there was insufficient evidence to sustain a conviction. Specifically, there was no evidence of abandonment, and “no credible and unrefuted evidence of a prima facie case of neglect, as both State and defense witnesses presented testimony that the dogs had both food and water available to them at the time they were placed in the in the crates for training.”
difficulty with this argument is that the State did not need to prove abandonment. The charges could be
established by proving “unlawful confinement”. § 828.13 (2)(a),
Generally, an appellate court will not reverse a conviction
that is supported by competent, substantial evidence. In moving for a judgment of acquittal, a
defendant admits not only the facts stated in the evidence adduced, but also
admits every conclusion favorable to the adverse party that a jury might fairly
and reasonably infer from the evidence.
Courts should not grant a motion for judgment of acquittal unless the
evidence is such that no view which the jury may lawfully
take of it favorable to the opposite party can be sustained under the
law. Fitzpatrick v. State, 900
So.2d 495, 507 (
The Exclusion of Character Evidence at Trial
of Review. A trial judge's
rulings on the admission or exclusion of evidence are
reviewed under the abuse of discretion standard. LaMarca v. State,
785 So.2d 1209, 1212 (Fla.2001).
Under the abuse of discretion standard, discretion is
abused only when the judicial action is arbitrary, fanciful, or
unreasonable, which is another way of saying that discretion is abused only
where no reasonable person would take the view adopted by the trial court.
B. Argument and Analysis. The Appellant argues the trial court erred when
it excluded the testimony of defense witnesses Harold Piper and Jodie
Stambaugh. Both witnesses are
As a matter of law, evidence of a person's character or a
trait of character is generally inadmissible to prove action in conformity with
it on a particular occasion. One exception
to this rule is evidence
of a pertinent trait of character
offered by an accused in a criminal case, or by the prosecution to rebut the
trait. § 90.404(1)
In addressing this issue we will not take up the obvious concern that this argument is raised by Appellant for the first time on appeal. There is a more elementary difficulty. The anticipated testimony of Mr. Piper and Ms. Stambaugh is simply that each of them responded to Appellant’s residence once in the past and found no violations. There is nothing in the record to suggest that these witnesses had any knowledge of or testimony to offer about Appellant’s reputation in the community for the love and care of animals. Therefore their testimony would not be relevant and was properly excluded by the trial court. Finally, in the present case, the claimed character trait is not an essential element of the charges. Therefore, even if the record suggested the existence of testimony concerning specific instances of Appellant’s conduct, which it does not, such testimony would not be admissible.
For the reasons set forth above, this court concludes that the judgment and sentence of the trial court should be affirmed.
IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is affirmed.
Original opinion entered by Circuit Judges R. Timothy Peters, Michael F. Andrews, & Raymond O. Gross.
cc: Honorable Robert Dittmer
Office of the State Attorney
Joseph C. Bodiford, Esquire