County Criminal Court: CRIMINAL LAW-DUI- Corpus delicti must be established beyond a reasonable doubt to survive a motion for judgment of acquittal - a defendant's confession or statement "may be considered in connection with the other evidence," but "the corpus delicti cannot rest upon the confession or admission alone-state failed to prove the crime of driving under the influence was committed- Judgment reversed- Roy v. State, No. 03-483619WTW (Fla. 6th Cir. App. Ct. January 13, 2005).













v.                                                                                 CASE NO: 03-483619WTW





Appeal from Pasco County Court


County Judge Debra Roberts


Harvey G. Hesse, Esq.

Attorney for Appellant


Office of the State Attorney

Attorney for Appellee




            Appellant was charged and found guilty of Driving under the Influence.  On appeal, Appellant raises two issues: (1)  the trial court erred in denying his Motion to Suppress and, (2) the trial court erred in denying his Motion for Judgment of Acquittal because the state failed to prove corpus delicti. In arguing the first issue Appellant alleges that the Motion to Suppress was renewed at trial. However, after careful review, this Court can find no evidence in the record that it was renewed at trial, and therefore, this Court affirms the decision of the trial court.  However, this Court reverses the trial court's denial of the Motion for Judgment of Acquittal because the state failed to prove corpus delicti.

            In this case, Deputy Heinemann testified that he observed two vehicles with their headlights on, driving westbound on SR52 behind him.  He testified that the speed they were traveling was approximately 55 miles per hour.  Heinemann explained that within ' a second' there was only one vehicle and the other vehicle was gone.    Within a minute he turned around and saw an empty blue vehicle parked on the side of the road facing westbound.  The deputy testified that he thought it impossible that the 'other ' car pulled off at the driveway just 100 or 200 yards back because of the speed they were traveling.  

He further explained that while he was not 100 percent sure that it was the same car he viewed in his rear view mirror, he was "pretty positive." Heinemann stated that he observed defendant in the wood line and made contact with him.  Defendant told him he was trying to use the bathroom.   At that time, the deputy noticed that he had slurred speech, he was stumbling, and had glassy eyes.   Appellant started to walk to the vehicle when Heinemann told him to 'hold on.'

            Deputy Rux and Corporal Steele testified that when they arrived on the scene, appellant was seated inside the blue vehicle parked on the side of the road. Steele was called to conduct a DUI investigation. He testified that made contact with the defendant and asked him to step out of the vehicle.  He explained that when the defendant exited the vehicle, he grabbed the doorframe and the door to steady himself.  He had a strong odor of alcohol on his breath, bloodshot eyes, and slurred speech.  When defendant exited the vehicle he was noticeably staggering about.  He kept putting his arms out to the side looking for something to grab a hold of.  He was that unsteady on his feet.  Steele testified that he asked him how he came about to be on the side of the roadway, and defendant replied that he had pulled over because he had to go to the bathroom.  Steele then asked him why he didn't stop at one of the two stores that he passed along the way to get where he was.  He said that it had just hit that he had to go.  Steele testified "I told him that I smelled alcohol on his breath and he said that he had two beers; that he had drank on the way home from work.  He told me that he worked at Zero Graphics; that he was in management in Tampa and that he had a couple of beers on the way home."  Defendant did not consent to a field sobriety test and was warned about the consequences of not taking the test, specifically, that the deputy would have to base his decision to arrest or not to arrest on his limited contact with him. Defendant still did not agree to take the test. Steele concluded that defendant was too impaired to drive a motor vehicle; that he was drunk, and he arrested him and read him implied consent. Steele explained  defendant was unsteady on his feet, kept staggering around the scene, and had a real odor of alcohol on his breath "when you got face-to-face with him." He had slurred speech, almost mush mouth.  It was difficult for Steele to understand him at times.  At that point, Steele placed him under arrest and read him implied consent. 

            Steele was then asked how he ascertained that the defendant was driving and he replied "Mr. Roy, himself, had told me that he had been driving back from Tampa and that he had pulled his vehicle off of the roadway--" . At that point, there was an objection and defense counsel argued it was a discovery violation because they had no knowledge of that statement.  The jury left the court room and counsel argued.  During the argument, defense counsel realized that statement was provided to him and he apologized.  No further objections were made at that time. Direct examination resumed of Steele and he was asked how he knew the defendant was driving that evening and at that point, defense counsel objected to a predicate "on the corpus delicti argument."   This objection was overruled. Again, Steele testified that Roy told him "[t]hat he was coming back from Tampa; that he had gotten off of work; that the place was Zero Graphics where he was in management, and he said that he had stopped and had a couple of beers on the way home and while he was driving down 52 the urge hit him and he had to go to the bathroom and he went into the wood line to pee."   

            After the state rested, defense made a Motion for Judgment of Acquittal based on the fact that but for his own statements, the state failed to show defendant was driving the vehicle.  This motion was denied. The defense called the defendant, Deputy Heinemann and Corporal Steele.  After the defense rested, counsel made another Motion for Judgment of Acquittal, based on the corpus delicti argument. This motion was also denied  as was the post trial Motion for Judgment of Acquittal or Motion for New Trial. [2]

            In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence.  Darling v. State, 808 So.2d 145, 155 (Fla. 2002) (quoting State v. Law, 559 So.2d 187, 188 (Fla.1989)), cert. denied, 537 U.S. 848, 123 S.Ct. 190, 154 L.Ed.2d 78 (2002).   Corpus delicti must be established beyond a reasonable doubt to survive a motion for judgment of acquittal. Schwab v. State, 636 So.2d 3, 6 (Fla.1994);  Chaparro v. State  873 So.2d 631, 634 (Fla. 2d DCA 2004).

            The general order of proof is to show that a crime has been committed and then that the defendant committed it. Spanish v. State, 45 So.2d 753 (Fla.1950); see State v. Allen, 335 So.2d 823 (Fla.1976). "But in many cases the two elements are so intimately connected that the proof of the corpus delicti and the guilty agency are shown at the same time." Spanish, 45 So.2d at 754. Thus, the "evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together and inseparable on one foundation of circumstantial evidence." Cross v. State, 96 Fla. 768, 780-81, 119 So. 380, 384 (1928). A defendant's confession or statement "may be considered in connection with the other evidence," but "the corpus delicti cannot rest upon the confession or admission alone." Id. at 781, 119 So. at 384. Before a confession or statement may be admitted, there must be prima facie proof tending to show the crime was committed.  Frazier v. State, 107 So.2d 16 (Fla.1958); Cross; see Farinas v. State, 569 So.2d 425 (Fla.1990); Bassett v. State, 449 So.2d 803 (Fla.1984). Additionally, by the end of trial the corpus delicti must be proved beyond a reasonable doubt. Cross."   Schwab v. State  636 So.2d 3, 6 (Fla.,1994).

            Thus, the state has the burden of proving by substantial evidence that a crime was committed, and  the proof may be in the form of circumstantial evidence.  This standard does not require the proof to be un-contradicted or overwhelming, but it must at least show the existence of each element of the crime.  Moreover, the identity of the defendant as the guilty party is not a necessary predicate for the admission of a confession.  State v. Allen, 335 So.2d 823, 824 (Fla.1976). The Court in Allen  explained the policy reasons for the corpus delicti rule: "The judicial quest for truth requires that no person be convicted out of derangement, mistake or official fabrication." Id. at 825.   An example of a DUI case in which  the facts were sufficient to remove the danger of defendant being "convicted out of derangement, mistake or official fabrication" is Burks v. State,  613 So.2d 441, 443 (Fla. 1993).  In Burks,  the trooper was dispatched to the scene of an accident.  When he arrived he found a tractor trailer blocking both northbound lanes of Hwy 17.  A motorcycle was lying in the roadway, and the body of the motorcyclist was lying near the truck. The court determined that corpus delecti was established since Burks' speech was slurred, his eyes were bloodshot, he smelled strongly of alcohol; there was a dead body on the road; a truck was illegally blocking the highway; and Burks' supervisor asked if Burks could drive his vehicle away and continue on his run. The Court found that these facts were sufficient to satisfy corpus delicti.  Allen, 335 So.2d at 825. Burks v. State , 613 So.2d 441, 443 (Fla. 1993).

            In this case, the state was required to prove that the defendant drove the vehicle while under the influence independent of defendant's admission.  However, there was no such evidence. For instance, it was never established that the vehicle was  not  on the side of the road, in that spot, when Heinemann first passed it.  Furthermore, Heinemann testified that he had no way of identifying who was behind him, or what type of vehicles were behind him, because all he saw were bright lights.  He also testified that he did not actually see where that one set of headlights went and did not see the vehicle behind him pull off of the road.  He just stated that he did not know where it would have went, so he 'suspected' it just pulled off of the road.  He then went on to testify that when he turned around he saw a car on the side of the road.  However, he also testified that he did not see anyone driving that car and did not see appellant in that car. Based on the evidence in this case, it is difficult to establish that a crime (DUI) was committed.  We therefore reverse and remand for entry of an order granting the Motion for Judgment of Aquittal. 
            DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of February, 2005, nunc pro tunc January 13, 2005.



                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge




                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge



                                                                                    Stanley R. Mills

                                                                                    Circuit Judge


Copies furnished to:

Office of the Public Defender

Harvey G. Hesse, Esq










[1]   This Order and Opinion is amended solely to reflect the correct attorney of record for appellant, Harvey G. Hesse, Esquire.  

[2] The State argued that this issue was not preserved for appeal because defense counsel did not object 'contemporaneously' citing to by  J.B. v. State, 705 So. 2d 1376 (Fla. 1998).  However, as the Court in J.B. pointed out,  that case involved the issue of an objection where prima facie evidence as to each element of the offense was presented.  The Court distinguished that case from the cases out of the Second District in which the defendant's confession was admitted without independent proof of the corpus delicti, citing to Nelson v. State, 543 So.2d 1308 (Fla. 2d DCA 1989), and Dydek v. State, 400 So.2d 1255 (Fla. 2d DCA 1981), J.B. at 1379.  In both cases, the Second District Court of Appeal  found  that the error in admitting the defendant's confession without independent proof of the corpus delicti was fundamental.  See also State v. Anton  700 So.2d 743,  748 (Fla  2d DCA 1997). Moreover, here the defense did eventually object (even if a few moments later) and made a  Motion for Judgment of Acquittal at the close of the State's case. See J.B. 1378.