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
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
KURT JOHN ROY,
v. CASE NO: 03-483619WTW
County Judge Debra Roberts
Harvey G. Hesse, Esq.
Attorney for Appellant
Office of the State Attorney
Attorney for Appellee
AMENDED ORDER AND OPINION
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.'
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
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
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. 
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 (
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
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."
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.
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Office of the Public Defender
Harvey G. Hesse, Esq
 This Order and Opinion is amended solely to reflect the correct attorney of record for appellant, Harvey G. Hesse, Esquire.
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