County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – trial judge’s misstatement to jury was not properly preserved for appeal – no specific or contemporaneous objection was ever lodged – even if preserved, misstatement would be harmless in light of correction, curative instruction, and evidence adduced – Conviction affirmed. Matthews v. State, No. 01-19588 (Fla. 6th Cir. App. April 28, 2003).

County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence – sufficiency of evidence – prosecution for violation of injunction for protection against domestic violence and criminal mischief – testimony of ex-wife and friend that appellant approached and tried to talk to ex-wife upon leaving sports bar was sufficient evidence to prove prima facie case for violating injunction – testimony of ex-wife that appellant reached for knife, bent over near her car, after which she heard tires deflating and saw appellant fleeing, and testimony of friend concerning appellant’s admission to slashing ex-wife’s tires, was sufficient to prove prima facie case for criminal mischief – Conviction affirmed. Matthews v. State, No. 01-19588 (Fla. 6th Cir. App. April 28, 2003).

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA
IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

JOSEPH MATTHEWS,

Appellant,

vs. APPEAL NO: CRC01-19588CFANO

STATE OF FLORIDA,

Appellee.

/

Opinion filed April _____, 2003.

Appeal from a decision of the

County Court for Pinellas County;

Amy M. Williams, Judge.

Robert L. Hambrick, Esquire

Attorney for Appellant.

Thea Dalklaitsis, Esquire

Assistant State Attorney.

ORDER AND OPINION

In the lower court, Matthews was convicted by jury verdict of violating an injunction for protection against domestic violence and criminal mischief. He was sentenced to 270 days in county jail and ordered to pay $200 in restitution. On appeal, Matthews argues that the trial judge’s misstatement of the charges prior to jury selection tainted the jury panel and caused him undue prejudice. He also asserts that the evidence adduced at trial was insufficient to support the verdicts. We affirm.

The record reflects that prior to jury selection, the trial judge inadvertently informed the jury that Matthews was charged with battery and criminal mischief. Matthews was actually charged with violating an injunction for protection against domestic violence and criminal mischief. After the trial judge misspoke, defense counsel approached the bench and directed the trial judge’s attention to the error. In response, the trial judge corrected herself, told the panel that she misspoke, and apprised the panel of the true charges. After consulting with Matthews, defense counsel requested a curative instruction, which the trial judge gave. The trial judge also stated: “This is not a domestic battery case, and I don’t want you to hold that against the defense in any way. Please realize that I misspoke and please don’t hold that against the defense.”

Matthews argues that the trial judge’s misstatement caused him undue prejudice and tainted the jury panel. We are unable to consider this issue, however, because it was not properly preserved for appeal. Defense counsel never made a specific and contemporaneous objection in the lower court. Steinhorst v. State, 412 So. 2d 332 (Fla. 1982); Routly v. State, 440 So. 2d 1257, 1260 (Fla. 1983). Rather, defense counsel asked to approach the bench, after which she informed the trial judge of her misstatement. She then requested a curative instruction, which was given. She never moved to strike the jury panel, or for a mistrial. In sum, her actions were insufficient to preserve this issue for appeal. Thomas v. State, 419 So. 2d 634, 636 (Fla. 1982) (holding that an objection must “apprise the trial judge of the putative error and preserve the issue for intelligent review upon appeal.”). Moreover, the misstatement does not rise to the level of fundamental error. Jones v. State, 612 So. 2d 1370, 1373 (Fla. 1992) (citing Ross v. State, 386 So. 2d 1191 (Fla. 1980)). That said, we note that even if this issue was preserved, we would find it to be harmless in light of the numerous corrections, the curative instruction, and the evidence adduced at trial. State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

Next, Matthews asserts that the evidence adduced at trial was insufficient to support his convictions. To prove the violation of an injunction for protection against domestic violence, the State was required to show that an injunction was lawfully in place, and that Matthews telephoned, contacted, or otherwise communicated with the petitioner directly or indirectly. See § 741.31(5), Fla. Stat. (2000). Virginia Matthews, the appellant’s ex-wife and petitioner on the injunction, testified that a permanent injunction was in place, a certified copy of which the State introduced into evidence. She then testified that on June 15, 2001, the defendant attempted to hug her and repeatedly tried to talk to her when she was attempting to leave Rudy’s Sports Bar. Additionally, the testimony of Joelynn Perry corroborates that Matthews engaged in contact with Virginia Matthews on the evening of June 15, 2001.

Based on our review of the record, we find there to be sufficient, competent evidence to support the jury’s verdict of guilt as to the violation of an injunction for protection against domestic violence. Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981) (“the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.”).

As for the offense of criminal mischief, the State was required to prove that Matthews willfully and maliciously injured or damaged the real or personal property of another. See § 806.13, Fla. Stat. (2000). Virginia Matthews testified that she saw Matthews reach for his belt, which, according to her, was where he normally kept his pocket-knife. She testified that she watched him walk to the other side of her car, bend over, and that she then heard her tires deflating. She further testified that after Matthews fled the scene, she walked over to the other side of her car and saw that her tires had been slashed. In addition, Joelynn Perry testified that Matthews, in fleeing the scene, admitted to her that he was “popping her [Virginia Matthews’] tires.”

Based on our review of the record, we find there to be sufficient, competent evidence to support the jury’s verdict of guilt as to the offense of criminal mischief. Matthews argues that “as to the criminal mischief charge there are far reaching conflicts in the evidence which show a lack of sufficient evidence to uphold a conviction.” However, the role of an appellate court is not to reweigh conflicts in the evidence. Neal v. State, 792 So. 2d 613, 615 (Fla. 4th DCA 2001).

Affirmed.

DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this _______ day of April, 2003.

____________________________________

JOHN A. SCHAEFER, Circuit Judge

____________________________________

W. DOUGLAS BAIRD, Circuit Judge

____________________________________

NANCY MOATE LEY, Circuit Judge

cc: Robert L. Hambrick, Esquire

State Attorney’s Office