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
GAIL LAVERNE SMITH
v. Appeal No. CRC 08-00085 APANO
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
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.
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 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 (
Judgment of Acquittal
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. 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 (
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.
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
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 (
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 (
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.
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