County Criminal Court: CRIMINAL LAW – Evidence – prima facie case - Navigation Rules - To convict an accused of a violation of Florida Statute § 327.33(3)(a), Violation of a Navigation Rule Resulting in a Boating Accident, the State must prove three elements beyond a reasonable doubt: 1) that a boating accident occurred, 2) that the person charged violated a navigation rule, and 3) that the violation of the navigation rule caused the boating accident.  In a citation of the statute based on a violation of Navigation Rule 5 (look-out), where the State failed to establish a prima facie case that Appellant violated Navigation Rule 5 or that the cited violation of Rule 5 caused the boating accident. Appellant was entitled to a judgment of acquittal.  Reversed and remanded.  Robert J. Baltrunas v. State, Appeal No. 08-00075 APANO (Fla. 6th Cir.App.Ct. August 31, 2009). 

 

 

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

 

 

ROBERT J. BALTRUNAS

 

            Appellant,

 

v.                                                                                                                                          Appeal No. CRC 08-00075 APANO

                                                                        UCN522007MM027402XXXXNO

 

STATE OF FLORIDA

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Robert Dittmer

 

J. Jervis Wise, Esquire

Attorney for Appellant

 

Andrew Tetreault, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Robert J. Baltrunas’, appeal from a conviction, after a non-jury trial, of Violation of a Navigation Rule Resulting in a Boating Accident, a second degree misdemeanor, in violation of § 327.33(3)(a) Fla. Stat. (2000).  The Navigation Rule allegedly violated was Rule 5, which requires a boater to maintain a proper lookout.  After review of the record and the briefs, this Court reverses the judgment and sentence.

Factual Background and Trial Court Proceedings

            At about midnight on the night of September 26, 2007, the Appellant, Robert J. Baltrunas, drove his 23 foot boat through John’s Pass and into an adjoining unmarked channel or “shortcut”.  That unmarked channel is narrow and is used frequently by boaters.  Appellant holds a United State Coast Guard Master Near Coastal license.  John Mellny was on board Appellant’s boat.  Upon entering the unmarked channel, Appellant increased his boat speed to approximately twenty-one (21) miles per hour.  Appellant was standing driving the boat and Mr. Mellny was seated beside him.  Both men testified at trial they were looking out over the front of the boat as they proceeded.  There was a thirty-eight (38) foot boat, white in color, anchored in the unmarked channel with no one on board.  Appellant saw the boat and reacted but was unable to avoid a collision.  Appellant called the United States Coast Guard on his boat’s radio.  Mr. Mellny called the Florida Fish and Wildlife Conversation Commission.  They were instructed that they could leave the scene of the accident and return to the dock but remained at the scene for twenty or thirty minutes.  Both the Appellant and Mr. Mellny testified at trial that they saw no lights illuminated on the anchored boat prior to the collision.  Mark Townshend, the owner of the anchored boat testified that he turned on the boat’s red and green navigation running lights as well as a 360 degree white overhead light on the mast prior to leaving the boat some six hours earlier.  The navigation lights are required when a vessel is underway; they are not for a boat at anchor.  The 360 degree white overhead mast light is required when a vessel is at anchor.  Appellant and Mr. Mellny testified that after the collision they circled the anchored boat.  Appellant testified that he then observed only a red navigation light was illuminated and that it was not correctly installed.  While Appellant and Mr. Mellny were still at the scene, Mr. Townshend returned.  Appellant was angry and asked Mr. Townshend “where are your lights?”  Mr. Townshend responded that he had his “navigational lights on”. 

At trial, the State called three witnesses, Mr. Mellny, Mr. Townshend and Florida Wildlife Commission Officer Albonetti.  Mr. Mellny testified that both he and the Appellant kept lookout throughout the events in question.  The State presented no direct evidence that Appellant did not maintain a lookout during the events in question.  Following the presentation of the State’s evidence, Appellant moved for Judgment of Acquittal based on the failure to present sufficient evidence to prove a failure to maintain a lookout.  The motion was denied.  Thereafter, Appellant testified and the Defense rested.  The trail court found the Appellant guilty of the cited offense, then withheld adjudication and placed Appellant on probation for six (6) months.  The trial court also entered an “Order Setting Restitution” in an amount of $5,142.03 to be paid as a condition of probation. This appeal was timely filed.

Issue

            Appellant argues that he is entitled to a judgment of acquittal because the State failed to present sufficient evidence to prove the charge of failure to maintain a lookout.

Standard 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 (Fla. 2nd DCA 2003).

Judgments of Acquittal

The rule is well established that the prosecution, in order to present a prima (Cite as: 961 So.2d 198, *204)

facie case, is required to prove each and every element of the offense charged beyond a reasonable doubt, and when the prosecution fails to meet this burden, the case should not be submitted to the jury, and a judgment of acquittal should be granted.  Baugh v. State, 961 So.2d 198, 203-204 (Fla. 2007).  Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence.  Pagan, 830 So.2d at 803.  Proof may be by direct or circumstantial evidence.  Direct evidence is that to which the witness testifies of his or her own knowledge as to the facts at issue. Circumstantial evidence is proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist.  Baugh, 961 So.2d at 203, n. 5. (Emphasis added).

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.  If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.  Reynolds v. State, 934 So.2d 1128, 1145 (Fla.,2006).

The Present Case

1. The Charged Offense.  Appellant was cited, tried and convicted of Violation of a Navigation Rule Resulting in a Boating Accident, in violation of § 327.33(3)(a) Fla. Stat. (2000).  A violation of this statute requires proof of three elements: 1) that a boating accident occurred, 2) that the person charged violated a navigation rule, and 3) that the violation of the navigation rule caused the boating accident.  The Navigation Rule allegedly violated was Rule 5, which requires a boater to maintain a proper lookout.  The entire rule is:

Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.

 

33 U.S.C.A. § 2005.  Appellant was not cited or tried for violating any other navigation rule. [1]

            2. The Pertinent Evidence.  The State introduced no direct evidence that Appellant failed to maintain a proper look-out by sight, hearing and by all available means.  To the contrary, the State introduced direct evidence that Appellant and Mr. Mellny were both “looking – keeping watch” out over the front of the boat at the time of the events in question.  The State witness, Officer Albonetti, testified that a look-out is required while operating a vessel, especially at night, to have a “clear lookout as far as what’s taking place in front of you in order to avoid an impact like this.”  He also testified that boats do not have headlights because such lights can obstruct the night vision of operators of boats.  Boats do have spotlights, but ambient light shining back towards the operator of the spotlight will decrease night vision and that person won’t be able to see quite as well.  Officer Albonetti, further testified that shore lights in the area where the collision occurred can create a backlighting effect that is not good when you are navigating into that backlit object.  The State presented no evidence that Appellant was required to use a spotlight or that a spotlight could ever be properly used as a headlight for a boat at night.

3. The Motion, Response and Ruling. At trial, Appellant moved for judgment of acquittal arguing; that there was no question and no issue regarding there being a lookout, that the State's case really centered on the issue of there being excessive speed for the conditions, and that the State had not established a prima facie case that, in fact, there was no proper lookout.  In response the State’s basic argument was “(i)f there was a proper lookout, this accident would have been avoided, given the weather conditions, given the speed of the vehicle -- or of the boat.”  The trial court ruled:

It's an interesting argument because he's not cited with travelling too fast for conditions, but I think in a light most favorable to the State, by virtue of the fact that there was a collision with the 40-foot vessel that is, you know, at least from my view, at least stands 20 feet or so, at a minimum, out of the water.

 

That there was not, from the testimony that I've heard so far, a proper lookout, in order to see a boat that large, and if it was because they were travelling too fast for the conditions, then that was a prevailing circumstance and condition that they had to make appraisal of at the time.

 

So, if they were going too fast, in order to be able to maintain a proper lookout and they would have needed to have a search light or something out in front of them in order to take into account those circumstances.  Maybe they needed to do that and they didn't do that, so I'm going to deny judgment of acquittal.

 

Conclusion

The State failed to establish a prima facie case that Appellant violated Navigation Rule 5.   There was no conflicting evidence; the only direct evidence is that both Appellant and Mr. Mellny were looking out at the time of the events in question.  The fact that there was a boating accident does not establish a failure to maintain a proper lookout or create a conflict in the evidence.  The State presented evidence that boats do not have headlights and that the use of spotlights can limit night vision.  The State presented no evidence that a spot light could ever be properly used as a headlight of a boat or that Navigation Rule 5 requires the use of lights at night.    

The State also failed to establish a prima facie case that the cited violation of Rule 5 caused the boating accident.  The State’s evidence suggests several additional factors; the speed of Appellant’s boat, the lack of required illuminated mast lighting on the anchored boat, the fact that a thirty-eight (38) foot boat was left anchored with little or no lights illuminated with no one on board at night in a narrow channel, and that shore lights in the area where the collision occurred can create a backlighting effect.

Based upon the foregoing, this court concludes the Appellant was entitled to a judgment of acquittal on the cited offense of violating Navigation Rule 5.  We reverse the judgment and sentence.

IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is reversed.  This matter is remanded to the trial court with directions to; enter a judgment of acquittal and to vacate and set aside the Order Setting Restitution.

            ORDERED at Clearwater, Florida this ____ day of August, 2009.

 

 

Original opinion entered by Circuit Judges R. Timothy Peters, Michael F. Andrews, & Raymond O. Gross. 

 

           

cc:        Honorable Robert Dittmer

            J. Jervis Wise, Esquire

            Office of the State Attorney                                                                                                             



[1] Rule 6 addresses “Safe Speed”, 33 U.S.C.A. § 2006; Rule 7 addresses “Risk of collision”, 33 U.S.C.A. § 2007; Rule 8 addresses “Action to avoid collision”, 33 U.S.C.A. § 2008; Rule 9 addresses “Narrow channels”, 33 U.S.C.A. § 2009.