County Criminal Court: APPELLATE PROCEDURE – Standard of Review – trial court did not err in denying motion for judgment of acquittal - in reviewing trial court’s denial of defendant’s motion for judgment of acquittal, when defendant’s criminal conviction is based upon both direct and circumstantial evidence, the appellate court applies a de novo standard of review.  Trial court’s finding of guilt was based on competent, substantial evidence - Judgment and sentence affirmed.  Carter v. State, No. CRC10-00007APANO (Fla. 6th Cir. App. Ct. September 29, 2010).

 

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

 

 

JERRY LOUIS CARTER

            Appellant,

 

 

v.                                                                                                                                          Appeal No. CRC 10-00007 APANO

UCN 522008TR117016XXXXXX

                                                                        UCN 522008CT116995XXXXXX

                                                                                       522010AP000007XXXXCR

STATE OF FLORIDA

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge William H. Overton

 

Thomas Matthew McLaughlin, Esquire

Attorney for Appellant

 

Lee Pearlman, Esquire

Assistant State Attorney

Office of the State Attorney

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Jerry Louis Carter’s, appeal from a conviction, after a non-jury trial, of Driving While Under the Influence of Alcohol or a Controlled Substance and Leaving the Scene of an Accident, With property Damage in violation of § 316.193 Fla. Stat. (2007).  Appellant argues his Motion for Judgment of Acquittal should have been granted.  After review of the record and the briefs, this Court affirms the judgment and sentence.

Factual Background and Trial Court Proceedings

            The case was tried at non-jury trial on February 3, 2010.  The State presented six witnesses; an eyewitness to the accident, the initial responding Sheriff’s Deputy, two responding police officers from the Treasure Island Police Department, a hospital nurse and a forensic toxicologist.

The eyewitness testified, in part, that on September 4, 2008; (1) that she observed Mr. Carter drive his vehicle, make a left turn at “about 60 miles an hour, actually”, then run off the road and hit “boulders”, bushes and a cable or phone “big grey box,” then turn right and again run off the road striking trees and bushes, then turn his vehicle around proceed the opposite direction hitting the eyewitness’ car while continuing on to drive across a bridge, (2) the eyewitness pursued Mr. Carter and called 911 with her cell phone, (3) as Mr. Carter drove over the bridge he struck both the right and left side of the bridge, (4) she was present when a deputy was talking with Mr. Carter as he sat in his stopped vehicle, (5) that “the sheriff’s office was talking to him and they opened up his car door, the driver’s side, and he fell out onto the sidewalk, right out onto the -- well, on the street”, (6) the eyewitness identified Mr. Carter as the operator of the involved vehicle.

Deputy Shawn Heffner of the Pinellas County Sheriff’s Office testified, in part: (1) he responded to information received through his dispatch of a possibly impaired driver driving northbound on Gulf Boulevard, coming from Treasure Island into the area where I patrol, Madeira Beach, (2) “the information in the call provided a description of the vehicle, as well as the occupant and, basically, the driving behavior.  As I was traveling southbound on Gulf Boulevard and going over the John’s Pass Bridge, approximately 129th Avenue, I observed a vehicle that matched that description, with a white male occupant looking down towards the steering wheel as I was heading southbound and that vehicle was heading northbound”, (3) “I turned around.  … [a]nother BOLO was received by a witness that was following the suspect vehicle, that he had pulled into a parking lot just north of that bridge.  I pulled into that parking lot … and at which point I made contact with that occupant”, (4) he identified Mr. Carter as the operator of the involved vehicle, (5)  “And in the course of my contact, it was difficult for him to respond to me as I had asked him questions on where he was going, where he was coming from, was there anything wrong with him, stuff of that nature.  I had asked for identification.  As he began to look for his identification, he appeared to just forget what I just asked for, and had difficulty even locating his ID or anything in that nature.  I had to repeat questions multiple times to him”, (6) “As I continued to ask him questions, it was to the point where I had asked him to exit the vehicle, for my safety, as well as his, to get the keys out of the ignition, as he seemed not to be able to understand where he was at and answer the questions I was asking him about providing identification and stuff of that nature.  When he exited the vehicle, he had difficulty standing.  He widened his own stance, used the vehicle to maintain his balance.” (7) “He didn’t elaborate on his medical condition, other than the stitches were from a catheter being removed, and that he was just coming from his home, but he didn’t know where he was going, stuff of that nature.  But, you know, nothing -- no real complete sentences.  Nothing that made a lot of sense.” (8) “He was even offered medical assistance, which he had refused.  We would have provided that to him if he was claiming any kind of a medical emergency.  So, at no time did he make any kind of claim that he needed medical assistance.”

Officer Kenneth Hilland of the Treasure Island Police Department testified, in part:  (1) Mr. Carter was the driver of the vehicle that was involved in the crash, (2) “The defendant, Mr. Carter, did not know he was involved in a traffic crash.  He was very incoherent.  He seemed to be under the influence.” (3) Mr. Carter admitted he had taken methadone earlier that day, (4) a blood sample of Mr. Carter was collected in the officer’s presence at a hospital, (5) that Mr. Carter’s reason for being in the hospital dealt with low blood sugar and his diabetes.

Officer Adam Lightfield of the Treasure Island Police Department testified, in part:  (1) that at the scene he “approached the [Mr. Carter] and asked him if everything was okay, if he needed any medical assistance.  At that time, he advised me that he did not.” (2) “I observed him to have mumbled, slurred speech.  Also, he was having trouble keeping his eyes open.” (3) “I asked him if he was sick or injured.  He told me he was not.  I asked him if he was diabetic.  He told me that he was.  I asked him if he takes insulin.  He told me that he does not.” (4) he administered field sobriety exercises, (5)  a video of questions asked to Mr. Carter during the DUI investigation and the performance of the field sobriety exercises at the scene was played for the trial court, (6) Mr. Carter stated he was taking two different medications, (7) An officer asked Mr. Carter, “Are you okay?  Do you need paramedics to check you?”  Mr. Carter responded “I don’t know.  I guess.” (8) Officer Lightfield, placed Mr. Carter in custody, (9) two breathalyzer tests were administered and the results of both tests were 0.00, (10) Paramedics did respond to Mr. Carter and determined that he had low blood sugar, (11) Mr. Carter was transported to a hospital, (12) At the scene of the traffic stop Mr. Carter did not mention his blood sugar, he did advise he was diabetic, but did not mention that he was having any issue with his diabetes, (14) Mr. Carter’s blood sugar was measured about two hours after the crash had occurred.

Debra Maxson testified, in part: (1) she is employed as a nurse at Palms of Pasadena Hospital emergency room, (2) after Mr. Carter consented, she drew blood from him on the day in question, (3) the police officer’s sealed kit was brought in, opened and used in the blood draw, (4) the officers watched her draw the blood.

Jeffrey Hays testified, in part: (1) that he is the chief toxicologist at the Pinellas County Forensic Laboratory, (2) that his laboratory did several different drug screens using different techniques in order to find and confirm drugs that may have been in the blood specimen, (3) the tests on Mr. Carter’s blood sample revealed methadone in the blood, (4) “Methadone, as a narcotic analgesic, is a central nervous system depressant.  So, a person showing impairment by methadone would be sluggish, drowsy, uncoordinated, probably disoriented.  Typical symptoms similar to drunken behavior.” (5) “Depending upon the dose that was taken, literature references the list, the analgesic effects of a normal dose of methadone to last four to six hours.  Again, depending upon dose and tolerance of the person, the [impairing] effects could last as much as 12 to 24 hours.”

When the State rested their case, the Appellant moved for a Judgment of Acquittal arguing, in pertinent part, the State failed to prove that at the time of driving Mr. Carter was in actual physical control of a motor vehicle while under the influence to the extent that his normal faculties were impaired.  Further there was a reasonable possibility that Mr. Carter was going under diabetic shock.

The Motion for Judgment of Acquittal was denied.  The trial court ruled:

The Court clearly finds that the defendant was impaired that day.  Obviously, the issue is whether or not he was impaired because it was his blood sugar or whether he was under the influence of a controlled substance.  Well, I find that it really was both.  I mean, I have no doubt to reject that he had issues.  Obviously, the fire department was called.  And I know nobody testified to this fact but, clearly, when you have blood sugar issues, his conduct is very similar to that.  Just like it’s very similar to a controlled substance of methadone of being sluggish, drowsy, disoriented.

 

And we know that in DUI cases, sometimes we have all kinds of cases where we have synergistic effects.  And, clearly, what the State has to prove is (1) that he was driving -- there’s no doubt that he was driving; (2) that he was under the influence to the extent his normal faculties were impaired -- the impairment portion of that was clearly proved.

 

The issue is whether or not he was impaired under the controlled substance.  And one of the things that the Court looks at is, obviously, is when Mr. Hays testified to the fact that we’re talking about a short shelf life here or, I don’t know, not shelf life, but, I mean, 4 to 6 hours, not a very long time, maximum of 12 to 24.  And, clearly, he was affected.  The Court feels that this certainly had some type of synergistic effect.

 

I’m not doubting that he had blood sugar issues; he clearly did.  You can kind of see him go in and out.  I mean, sometimes he’s very lucid.  You know, he’s even asking him, “You mean I really did hit something?”  You know, type of situation where he is lucid and asking for attorneys, and then other times he’s just out of it, you know, has not idea, you know, so.

But alls the law requires, there is no quantitative effect, it’s just that he is under the influence of a controlled substance, and I believe, certainly, the methadone contributed.  Whether or not it contributed a whole bunch or contributed a little, that’s not what the law requires, is that he has to have a controlled substance.

 

Obviously, if methadone was not a Schedule IV or whatever, if it was blood sugar, I mean, only, then the Court will find him not guilty.  But, clearly, in this particular case, there was a combination.  So, that combination is sufficient for the Court to find him guilty of the offense.

I also find him guilty of the careless driving because they kind of go hand in hand, but I don’t plan to do anything additional on the careless driving.  It just will be concurrent.

 

This appeal was timely filed.

Issues

            Appellant argues that the trial court erred when it denied the Mr. Carter’s Motion for Judgment of Acquittal because the conviction was based upon circumstantial evidence and there was a reasonable hypothesis of innocence in that Mr. Cater was suffering from a medical condition, specifically low blood sugar as a result of his diabetes.  Further, he argues the trial court erred because the conviction was based upon an erroneous “mischaracterization of the evidence and law.”

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 the trier of fact 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.  See Reynolds v. State, 934 So.2d 1128, 1145 (Fla. 2006).

However, “where a conviction is based wholly upon circumstantial evidence, a special standard of review applies.” Darling v. State, 808 So.2d 145, 155 (Fla.2002). As stated in Darling:

 

Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. The question of (Cite as: 934 So.2d 1128, *1146)

whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.


Id. (quoting State v. Law, 559 So.2d 187, 188 (Fla.1989)). Therefore, a motion for judgment of acquittal should be granted in a case based wholly upon circumstantial evidence if the state fails to present evidence from which the jury could exclude every reasonable hypothesis except that of guilt. See Darling, 808 So.2d at 155-56. Nonetheless, “[t]he state is not required to ‘rebut conclusively every possible variation’ of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events.” Id. at 156 (quoting Law, 559 So.2d at 189). Once the State meets this threshold burden, it becomes the jury's duty to determine “whether the evidence fails to exclude all reasonable hypotheses of innocence ..., and where there is substantial, competent evidence to support the jury verdict, [the Court] will not reverse.” State v. Law, 559 So.2d 187, 188 (Fla.1989).

Reynolds, 934 So.2d at 1145 -1146.

 

 

The Present Case

The testimony and evidence set forth above presented a prima facie case of guilt.  Appellant argues there was no direct evidence that Mr. Carter was driving while impaired by a controlled substance.  The difficulty with this argument is that there was such direct evidence.  Mr. Carter had admitted he had consumed methadone earlier that day.  The tests on Mr. Carter’s blood sample revealed methadone.  Officer Adam Lightfield of the Treasure Island Police Department testified that at the scene he “approached the [Mr. Carter] and asked him if everything was okay, if he needed any medical assistance.  At that time, he advised me that he did not.” Further, “I asked him if he was sick or injured.  He told me he was not.  I asked him if he was diabetic.  He told me that he was.  I asked him if he takes insulin.  He told me that he does not.”  Jeffrey Hays, the chief toxicologist at the Pinellas County Forensic Laboratory, testified “Methadone, as a narcotic analgesic, is a central nervous system depressant.  So, a person showing impairment by methadone would be sluggish, drowsy, uncoordinated, probably disoriented.  Typical symptoms similar to drunken behavior.” Further “[d]epending upon the dose that was taken, literature references the list, the analgesic effects of a normal dose of methadone to last four to six hours.  Again, depending upon dose and tolerance of the person, the [impairing] effects could last as much as 12 to 24 hours.”

Because the evidence on the disputed point was both direct and circumstantial, it is unnecessary to apply the special standard of review applicable to circumstantial evidence cases. 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).

The trial court’s findings of guilt were supported by competent, substantial evidence.

Conclusion

Based upon the foregoing, this court finds the Appellant’s convictions were supported by competent, substantial evidence.  There was no error by the trial court.

We affirm the judgment and sentence.

IT IS THEREFORE ORDERED that the convictions of the Appellant are affirmed.        

ORDERED at Clearwater, Florida this ____ day of September, 2010.

 

Original order entered on September 29, 2010 by Circuit Judges Michael F. Andrews, Raymond O. Gross, and R. Timothy Peters.

 

 

 

 

           

cc:        Honorable William H. Overton

            Thomas Matthew McLaughlin, Esquire

            Office of the State Attorney