County Criminal Court: CRIMINAL LAW – Evidence – Sentencing –Defendant’s incriminating statements to the victim were properly admitted into evidence, corpus delicti was independently established.  Corpus delicti has been defined as “the fact that a crime has actually been committed, that someone is criminally responsible.”  In the absence of an independently established corpus delicti, the state may not offer in evidence an out of court confession or admission against interest to establish one of the elements of the charged offense.  To establish corpus delicti the state must prove by substantial evidence that a crime was committed.  Such proof may be in the form of circumstantial evidence. This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.  The identity of the defendant as the guilty party is not a necessary predicate for the admission of a confession.  As a prerequisite to the introduction of a confession, only need prima facie case of the corpus delicti.  Trial court correctly granted a judgment of acquittal on the charge of Criminal Mischief as a first degree misdemeanor because the State failed to prove the required amount of damage. Consequently, the case went to the jury as a second degree misdemeanor for which the Appellant was convicted.  The maximum probation period for Criminal Mischief, a second degree misdemeanor, is six months. The term of probation imposed by the Trial Court exceeded the statutory maximum. – Judgment affirmed; Sentence reversed.  Gail Laverne Smith v. State, Appeal No.08-00085APANO (Fla. 6th Cir.App.Ct. June 26, 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

 

 

GAIL LAVERNE SMITH

 

            Appellant,

 

v.                                                                                                                                          Appeal No. CRC 08-00085 APANO

                                                                        UCN522008MM023042XXXXNO

 

STATE OF FLORIDA

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Robert Dittmer

 

Kimberly Nolen Hopkins, Esquire

Attorney for Appellant

 

 

Ajay Pallegar, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Gail Laverne Smith’s, appeal from a conviction, after a jury trial, of Criminal Mischief, a second degree misdemeanor, in violation of § 806.13 Fla. Stat. (2006).  After review of the record and the briefs, this Court affirms the judgment but reverses the sentence.

Factual Background and Trial Court Proceedings

            On August 11, 2008, a Misdemeanor Information was filed charging the Appellant, Gail Laverne Smith, with Criminal Mischief, a first degree misdemeanor.  The case proceeded to jury trial on November 18, 2008.  The alleged victim, Ms. Bryant, testified her car had been scratched on March 22, 2007.  She reported the matter to the police.  Ms. Bryant suspected the Appellant, Ms. Smith, was responsible for the damage.  At the time Ms. Bryant and the Appellant were dating the same man.  On or about March 27, 2007 the car was scratched for a second time.  That night the Appellant repeatedly telephoned Ms. Bryant.  Ms. Bryant testified that in one conversation Appellant said, "Who scratched your car?" Ms. Bryant testified that she responded, "You're a dumb-A."  Appellant then said, "That's right, B, and there's more to come”.  There was no contemporaneous objection to this testimony.  The State placed in evidence photographs of the damage to the car as well as the testimony of the police officer who investigated the matter and observed the damage to the car.

            When the State rested, Appellant moved for judgment of acquittal arguing that the State had failed to prove the car belonged to Ms. Bryant or that the damage was done willfully or maliciously.  The trial court did not find merit to those arguments but ruled the State had failed to prove the amount of damage was more than $200 but less than $1,000 and the charge could go to the jury only as a second degree misdemeanor Criminal Mischief. 

            The Appellant, Gail Laverne Smith, testified and denied making the disputed statements to Ms. Bryant but did testify that she called Ms. Bryant repeatedly on that day.  Ms. Smith then testified that Ms. Bryant called her about ten times.  Ms. Smith denied scratching Ms. Bryant’s car and testified that she had previously been convicted of a crime of dishonesty.  The jury found the Ms. Smith guilty.  The trial court adjudicated the Appellant guilty and placed her on probation for twelve months.

Issues

            In this appeal, Appellant argues that she is entitled to a judgment of acquittal because the State failed to prove identity and Ms. Bryant’s testimony about Appellant’s comments during the telephone conversation should not have been admitted.  Although not mentioned by the parties, the legality of the sentence imposed is an issue.

The Term of Probation

In the present case, the trial court correctly granted a judgment of acquittal on the charge of Criminal Mischief as a first degree misdemeanor.  The State failed to prove the required amount of damage.  Wingfield v. State, 751 So.2d 134, 136 (Fla. 2nd DCA 2000); J.D. v. State, 767 So.2d 1259 (Fla. 3rd DCA 2000).  Consequently the case went to the jury as a second degree misdemeanor for which the Appellant was convicted.  The maximum probation period for Criminal Mischief, a second degree misdemeanor, is six months. Kohr v. State, 993 So.2d 638, 639 (Fla. 4th DCA 2009); § 948.15(1), Fla. Stat. (2005).  See also Moreno v. State, 675 So.2d 1026, 1027 (Fla. 3d DCA 1996).  The term of probation imposed herein exceeded the statutory maximum.

Judgment of Acquittal

A. 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).

B. Motions for Judgment of Acquittal.  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.  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.  However, if the State's evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant's reasonable hypothesis of innocence.  Pagan, 830 So.2d at 803; Fitzpatrick v. State, 900 So.2d 495, 507 (Fla. 2005); Morales v. State, 952 So.2d 1266 (Fla. 2nd DCA 2007). However, where one or more of the elements of the crime are proven by direct evidence, this heightened standard of review is not applicable.  Jenkins v. State, 1 So.3d 317, 320 (Fla 3rd DCA 2009).

    C. The Present Case.  On appeal the Appellant argues she is entitled to a judgment of acquittal because the State failed to prove identity.  That is to say, the only evidence connecting Appellant to the charged crime was Ms. Bryant’s testimony about the Appellant’s alleged statements during a telephone conversation.  Appellant argues those statements were equivocal and Ms. Bryant’s testimony was insufficient to support the conviction.  Further a conviction cannot be based solely on a confession. 

The primary difficulty with this argument is that the State presented a prima facie case of guilt.  Ms. Bryant testified that her car had been scratched on two occasions.  The responding police officer saw the damage to the car and photographs of that damage were admitted into evidence.  Ms. Bryant testified about Ms. Smith’s repeated calls and alleged incriminating statements on the date of the second incident.  The State offered competent substantial evidence on each element of second-degree misdemeanor criminal mischief.  Because the evidence in this case was both direct and circumstantial, it is unnecessary to apply the special standard of review applicable to circumstantial evidence cases. Pagan, 830 So.2d at 803.  See Wilson v. State, 493 So.2d 1019, 1022 (Fla.1986).

Secondly, Ms. Smith’s statements to Ms. Bryant were properly admitted into evidence, corpus delicti was independently established.  Corpus delicti has been defined as “the fact that a crime has actually been committed, that someone is criminally responsible.”  Burks v. State, 613 So.2d 441, 443 (Fla. 1993).  In the absence of an independently established corpus delicti the state may not offer in evidence an out of court confession or admission against interest to establish one of the elements of the charged offense.  Burks, 613 So.2d at 442; Harrison v. State, 483 So.2d 757, 758 (Fla. 2nd DCA 1986).  To establish corpus delicti the state must prove by substantial evidence that a crime was committed.  Such proof may be in the form of circumstantial evidence.  This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.  The identity of the defendant as the guilty party is not a necessary predicate for the admission of a confession.  Burks, 613 So.2d at 443.  As a prerequisite to the introduction of a confession the corpus delicti need be established only prima facie.  Hodges v. State, 176 So.2d 91, 93 (Fla.1965).   In the present case the evidence, excluding Ms. Smith’s statements, established the crime of criminal mischief had actually been committed and that someone was criminally responsible.  That was sufficient to independently establish corpus delicti.

Finally, even if it is assumed that Ms. Smith’s statements were improperly admitted into evidence, the issue was not preserved for appeal.  Appellant never objected to the introduction of the statements at trial.  To raise this issue as an error on appeal, a contemporaneous objection must be made at the trial level when the alleged error occurred.  J.B. v. State, 705 So.2d 1376, 1378 (Fla. 1998).  In the absence of a proper objection, a trial judge does not have an obligation to prohibit this inadmissible evidence from being considered by the fact finder.  J.B., 705 So.2d at 1378 -1379.

Conclusion

Based upon the foregoing, this court concludes the Appellant was not entitled to a judgment of acquittal.  There was no error in the conduct of the trial.  However, the term of probation imposed by the trial court at sentencing exceeded the statutory maximum and was improper.  We affirm the judgment but reverse the sentence.

IT IS THEREFORE ORDERED that the judgment of the trial court is affirmed but the sentence of the trial court is reversed.  This matter is remanded to the trial court for further action consistent with this opinion.

            ORDERED at Clearwater, Pinellas County, Florida this ____ day of June, 2009.

 

 

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

 

 

 

           

cc:        Honorable Robert Dittmer

            Kimberly Nolen Hopkins, Esquire

            Office of the State Attorney