County Criminal Court: CRIMINAL LAW — Jury Trial — Evidence — The trial court did not abuse its discretion in admitting statements made by Appellant to law enforcement.  Trial court’s order denying motion in limine affirmed.  Hector Antonio Guzman v. State of Florida, No. CRC10-006828-CFAWS (Fla. 6th Cir. App. Ct. July 27, 2011).










                                                                        UCN:              512010CF006828A000WS

v.                                                                     Case No:       CRC10-06828-CFAWS

                                                                        Lower No:    CTC1003535MMAWS-16



STATE OF FLORIDA,                                           



Appeal from Pasco County Court

County Judge Marc H. Salton


Simone Lennon, Esq.

for Appellant


Joel D. Fritton, A.S.A.    

for Appellee






            The trial court denied Appellant’s motion in limine seeking to exclude statements made by Appellant to law enforcement at the time of his refusal to submit to breath testing.  Appellant argues that the trial court abused its discretion by allowing the State to admit the prejudicial and irrelevant testimony.  We find that the trial court did not abuse its discretion.  Therefore, this court affirms the trial court’s order as set forth below.



On June 24, 2010, Appellant was charged with (1) Possession of Drug Paraphernalia, contrary to § 893.147(1)(b); (2) Possession of Marijuana, contrary to § 893.13(6)(b); (3) Driving Under the Influence, contrary to § 316.193(1); (4) Refusal to Submit to Testing, contrary to § 316.1932; and (5) Driving While License Suspended or Revoked, contrary to § 322.34(2)(b).  All these first degree misdemeanors occurred on May 15, 2010. 

Prior to trial, Appellant presented a motion in limine seeking to exclude statements made by Appellant to law enforcement at the time of his refusal to submit to breath testing.  Specifically, the defense sought to exclude Appellant’s statements to Deputy Orndorff to “suck my dick” and “I ain’t blowing into shit.”  The defense argued that these statements were inflammatory, made in anger, and would lower the State’s burden.  The State responded that anger does not make a statement inadmissible into evidence.  The statements went to a direct element of Appellant’s charge of refusing to submit to a breath test.  The statements were needed to prove that Appellant was asked to submit, but he refused.  Since it went to a direct element of the crime of refusing to submit, the State argued it had a right to put the statements into evidence.  The State furthered that any probative value was not substantially outweighed by the danger of unfair prejudice because it went to a material element of the crime. 

The trial court noted that the statements also went to the fact that one may argue that a sober person would not say such things.  When the defense argued that the statements were prejudicial, the trial court responded that, while they may be prejudicial to Appellant, it does not make them inadmissible.  The trial court furthered that the fact that he would say that to an officer, the State could reasonably argue that it is just another factor within the totality of the circumstances that shows that he was impaired.  The trial court found that the probative value outweighed any prejudice to Appellant and denied Appellant’s motion in limine.   

At the September 15, 2010 trial, Deputy William Orndorff testified that he conducted a DUI investigation a little after two o’clock in the morning, on May 15, 2010.  He was driving north on U.S. 19 coming up to Darlington when he saw a car come to a complete stop at a yellow flashing light.  There were about five to six cars that all had to slam on their brakes.  One car almost was rear-ended.  A couple of seconds later, the car accelerated at a high rate of speed.  The car was in the middle northbound lane and was swerving into the left and right lanes.  Deputy Orndorff caught up with Appellant at U.S. 19 and Moog, which was more than a mile away.  He stopped Appellant in the middle of the left turn lane at the intersection. 

When Deputy Orndorff approached Appellant’s car, he was sitting in the driver’s seat, tightly gripping the steering wheel with both hands, and just staring forward blankly.  Appellant’s speech was so slurred that it was hard to understand him.  Appellant said he was coming from Hammer Heads in Holiday and heading to his father’s house in Holiday Lake Estates.  Deputy Orndorff testified that Appellant went the wrong direction when he left the bar and had already passed Holiday Lake Estates by more than two miles.  Appellant said he had one Jack and Coke at Hammer Heads.  He had a strong smell of alcohol.  Deputy Orndorff could smell it when Appellant was staring forward and gripping the steering wheel, even before Appellant turned to face him.  The traffic stop was conducted at 2:08 in the morning, just after the bars close in Pasco County. 

Deputy Orndorff began to conduct a DUI investigation.  He asked Appellant if he would step out of the vehicle and he agreed.  Appellant’s coordination when he stepped out was not good.  Appellant was fumbling with the door handle to get out and he got pretty upset.  When Appellant first stepped out of the car, he was standing in a wide stance and swaying.  Once the traffic cleared, they walked across U.S. 19 into the Burger King parking lot.  Appellant’s balance was not good as they walked.  He was pretty unsteady on his feet, and Appellant was swaying although there was no breeze. 

When asking Appellant questions, Deputy Orndorff had to repeat himself several times.  He had asked Appellant for his driver’s license, and Appellant kept looking through his wallet, but could not find it after looking for at least a minute.  Then when Deputy Orndorff finally asked whether he had a driver’s license, Appellant admitted that he did not.  Appellant said that it was suspended for tickets, which Deputy Orndorff later confirmed.  Appellant could also not produce his registration or insurance.  Appellant was agitated and belligerent.  Deputy Orndorff could tell that Appellant was intoxicated.    

Deputy Orndorff requested Appellant to perform field sobriety exercises: walk and turn, one-leg stand, and finger-to-nose.  On the walk and turn test, Appellant stepped off the line three times on the second set of steps.  He only took eight steps both times.  Appellant turned to the right instead of the left.  He also raised his arms at one point during the first set of steps.  Appellant was not able to keep balance during the instructions.  Appellant did not touch his heel to toe on every single step by at least two to three inches.  On the one-leg stand, Appellant did not count to 30 out loud, he only reached seven.  Appellant put his foot down on six, lifted it back up, continued counting to seven, put his foot down, lifted it back up, then he stopped counting out loud.  Before the 30 seconds was up, Appellant put his foot down four more times.  Appellant swayed and used his arms to balance, which were more signs of impairment.  On the finger-to-nose test, Appellant’s eyes did not remain closed throughout this test as instructed.  Appellant did not touch the tip of his nose; he missed all six times.  Based on all his training and experience as a STEP officer, Appellant performed poorly on the field sobriety exercises.

Deputy Orndorff, placed Appellant under arrest for DUI.  Appellant agreed to the requested breath test at Burger King, but changed his mind once they got to the jail.  When asked to submit to the breath test at the jail, Appellant did not specifically say no; he said, “I ain’t blowing into shit.”  Appellant objected based on the grounds argued in their motion in limine, which was overruled.  Deputy Orndorff read implied consent, informing Appellant that if he refused to submit to a lawful sample of his breath that his privilege to operate a motor vehicle would be suspended one year, or 18 months if this was a second refusal, and that would be committing a misdemeanor.  Appellant still would not agree to perform the breath test.  Instead, Appellant said, “Suck my dick.”  Appellant’s prior driving record indicated that Appellant had a prior refusal to submit to a breath test on July 30, 2005 in Hillsborough County.

The car Appellant was driving was registered to his wife, but she could not come and get it from Tampa with the kids sleeping.  Appellant was alone and was the only one in control over the vehicle.  Deputy Orndroff had to have the car towed and impounded.  When the car was inventoried for impoundment, Deputy Orndorff found a marijuana pipe and a little baggie of marijuana together in the left corner of the trunk on top of a pile of clothes.  He field tested it for marijuana, which came back positive.  The burnt ash in the pipe also field tested positive.  Both items were entered into evidence without objection.

After the State rested, the defense renewed his motions and objections and requested a mistrial for allowing the statements to be entered by the deputy, which was denied.  The defense moved for a judgment of acquittal, arguing that the State failed to prove that Appellant was under the influence or that he was in actual possession of the marijuana, which was also denied. 

Appellant testified that earlier that day, they were having a family get together at his father’s house in Holiday.  Appellant’s younger brother Carlos left the picnic abruptly, and disappeared.  Soon thereafter, the police showed up at the house looking for his brother.  Appellant believed that his brother was planning on committing suicide, which made Appellant upset.  The police asked Appellant if he was Carlos, and he told them he was not.  Appellant told the police that he did not know where he was.  Another officer went to the back and questioned the kids in the pool.  Appellant’s father came to the door and took over talking to the police.  Appellant called Carlos on the phone, and he seemed okay.  Appellant asked him why the police were looking for him, and he simply responded that he did not do anything.  Appellant still does not know why the police were looking for his brother.  His brother called him a couple hours later while he was still at the family get together.  The phone call was very short and abrupt.  Appellant went looking for his younger brother with his adopted brother Curtis.  It was uncommon for his younger brother to act that way, but his brother seemed to get easily agitated, his temper would flair for seemingly little reasons, and would often overreact since his return from Iraq.   

Appellant claimed that he drove that evening because he could not find Curtis, who was somewhere in the bar, and he needed to go look for Carlos.  Appellant did not believe that he had another alternative to driving.   Appellant did not take a cab because he received information that his brother possibly had a gun.  Appellant made the abrupt stop at the light because he was looking for his brother.  Appellant thought his brother was walking on foot.  His brother used to live on Darlington, but had recently been evicted.  Appellant thought he may be in that area.  Appellant was looking around the Walgreen’s parking lot area on Darlington when he looked up and saw that the light was yellow, so he stopped.  Appellant denied speeding off.  Appellant changed lanes after he did not see his brother on the Darlington area, thinking that his brother may be in the apartments behind McDonalds.

Appellant admitted he was angry that he got pulled over.  He was in the process of looking for his brother, and that stopped everything.  Appellant explained to the officer that he was looking for his brother and then going home.  Appellant did not explain to the officer why he was looking for his brother because he did not want to put his brother in danger.  Appellant admitted that his driver’s license was suspended.  Appellant explained that he was upset and reacting to the officer’s attitude and demeanor when he made the two derogatory comments at the jail.

On cross-examination, Appellant stated that he did not hear the part about if he had a prior refusal to submit to a breath test, he would be charged with a crime.  Appellant did hear the deputy ask him a second time to submit to a breath test.  Appellant admitted that he said, “I ain’t blowing into shit” on the first request and then “suck my dick” upon the second request.

After the defense rested, the State recalled Deputy Orndorff.  Deputy Orndorff testified that Appellant said nothing about his brother or any other family members throughout his investigation. 

The defense renewed its motion for judgment of acquittal, but added that the defense had proven the theory of necessity.  Appellant had also shown through his testimony that the marijuana and paraphernalia did not belong to Appellant.  Appellant’s motion was denied.  The jury found Appellant guilty as charged to all counts.  Appellant was sentenced the same day to 140 days county jail, followed by one year of probation. 



            Appellant argues that the trial court committed reversible error by allowing the State to admit prejudicial and irrelevant testimony.  Florida Statute 90.403 provides that relevant evidence is inadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”  A trial court has broad discretion in determining whether the probative value of evidence sought to be admitted is substantially outweighed by any of the reasons enumerated in Florida Statute 90.403.  See, Lewis v. State, 570 So. 2d 412, 415 (Fla. 1990).  When a trial court has weighed the probative value against the danger of unfair prejudice, the decision to admit or exclude evidence will not be disturbed on appeal absent a showing of an abuse of discretion.  Lewis, at 415.  We find that the trial court did not abuse its discretion by allowing the State to admit the statements made by Appellant to Deputy Orndorff.

Florida Statute 90.401 states that relevant evidence is “evidence tending to prove or disprove a material fact.”  The State was required to prove that Appellant refused to submit to the breath test, pursuant to Florida Statute 316.1939(1)(e).  Appellant’s statements could easily be taken as a refusal.  Thus, the statements were clearly relevant.

Considering unfair prejudice balanced against probative value, nothing could be more probative of whether Appellant refused to submit to testing than his own statement of refusal.  As such, the prejudicial effect—of which all relevant evidence seems to possess—is not only less, but substantially less.  It cannot be reasonably asserted that because Appellant chose to respond in a vulgar manner that jurors may have come to their decision based on emotion.  The jury could certainly have based their guilty verdict on Appellant’s own admission that he refused to submit to testing, his own admission that he was read implied consent, and his own admission that he had previously refused to submit to testing.  Any error, if any, was harmless.

Appellant cites Carillo v. State, 727 So. 2d 1047 (Fla. 2d DCA 1999), which is not on point.  In that case, the trial court was found to have erred by allowing the admission of a prejudicial statement by the defendant, who was convicted of aggravated assault after raising a chair over his head in a domestic dispute with his girlfriend.  Over defense objection, the State introduced the testimony that the defendant told the arresting officer that he was “not going to jail for that bitch.”  Id., at 1047-8.  When he was placed inside the police car, he banged his head on the side of the car, stamped his feet, and yelled, “If I’m going to jail for this bitch, I might as well kill her.”  Id. at 1048.  In concluding that the trial court improperly admitted the evidence, the Second District noted that the State’s case was not strong and that the comments may well have made the difference between acquittal and conviction.  Id., at 1048.  Unlike the instant case, in Carillo, the defendant’s statement was not a direct element of the crime and was made over an hour after the assault.  As such, it properly failed the balancing test.  Here Appellant’s statement went to a direct element of the crime of refusal to submit to testing and was not remote.  Carillo is also distinguishable because the State’s case was not strong, as it was in this case.  Appellant’s reliance on Carillo is misplaced. 

The trial court did not abuse its discretion in admitting Appellant’s statements.  The statements were relevant and its probative value substantially outweighed any danger of unfair prejudice.  Appellant’s convictions and sentences should be affirmed.

             It is therefore,


            ORDERED that the trial court’s order denying Appellant’s motion in limine is hereby AFFIRMED.


DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 27th day of July 2011.

Original order entered on July 27, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.