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- Corpus existed for the crime at least circumstantially, before the appellants admissions were admitted into evidence. Moore v. State, No. 0602438CFAES, (Fla. 6th Jud. Cir. January  24, 2007).

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

 

PATRICK MICHAEL MOORE,   

                        Appellant,

v.                                                                                 Case No: 0602438CFAES

                                                                                    Lower No. 056455BATWS

STATE OF FLORIDA,                                              

                        Appellee.

__________________________/

 

Appeal from County Judge  Marc Salton

 

Harvey G. Hesse, III,  Esq.

attorney for appellant,

 

Devin Jones, Esq., A.S.A.,

attorney for appellee.  

 

 

ORDER AND OPINION

 

THIS MATTER is before the Court on PATRICK MICHAEL MOORE’S appeal of his conviction. The defendant was originally charged with driving under the influence property damage, driving under the influence causing property damage, driving under the influence, and leaving the scene of an accident involving property damage.  He was tried by a jury and was found guilty of the lesser crime of DUI.  The defendant appeals his conviction. After reviewing the briefs and record, this Court affirms the decision of the trial court.  

Patrick Shelton testified that on September 3, 2005, at about 2:40 a.m., he received a phone call from a friend of his who had just left his house about four minutes prior to the call, telling him there was an accident around the corner from his house. He immediately got into the car with his friend Derek Yap and went to the accident site. When they arrived, the car was “into the telephone pole.” Both Shelton and Yap testified that it appeared the accident just happened because the air bags went off in the car and there was still smoke coming out of the vehicle and dust floating around. Shelton and Yap both explained that the person they saw at the accident was naked.  They further testified that when they arrived, the man was alone and there was no one else around. Yap gave the man a shirt and he tried to find some shorts, but by the time he had the shorts in his hands, the man had put the shirt on around his waist. Both Yap and Shelton identified the defendant as the person they saw that morning.   

Shelton testified that he did see the keys in the defendant’s hands.  Yap testified that that the keys were in the car and the defendant started the car. They explained that the defendant got into the car and tried to start the vehicle to leave.  The car started up and when defendant put it in reverse, it kind of “spit and sputtered and shut off.” Shelton  stated that he knew it was because of the crash because  “. . . that car was pretty much totaled.” Shelton explained that he and Derek were just trying to keep casual conversation with him until the police came but “the defendant got agitated and tried to run down the street.”

Both Shelton and Derek testified that they heard the defendant speak and his speech was very slurred, nothing made sense, and it was hard to understand what he was saying. They also testified that the defendant was stumbling all over the place, and when he was trying to run on the road he kind of zigzagged all the way across the road. He did not appear to be injured at the time.  Both Shelton and Derek testified that  the defendant told them that his father was  “a senator, a governor, or something like that” and that he was a pilot for Delta Airlines and said “I can’t be here.  You’re going to get in trouble if you don’t get me out of here.”  Shelton also testified that he did not identify the defendant in person that night; “but one of the troopers brought up his picture ID on his computer, and [he and Derek] identified that it was him who owned the car and it showed a kind of picture of it, and [it] showed a picture of his driver’s license, and we told the officer that that was the person that we seen with the car.” 

After conducting an investigation, Trooper Morris went to the location of the defendant. The state asked the trooper if he spoke to the defendant and indicated that he was doing an investigation for a crash and the trooper said he did. The defense objected, and after argument, the court found:

. . . A driver being—the corpus is if there was an accident, and a driver left the scene; the driver left the scene, not necessarily him.  That’s established by his admission.  I’m going to overrule the objection.  I’ll allow the statement for two reasons: one is leaving the scene of the accident, if they haven’t established the corpus, they will be establishing the corpus; they have the ability to do so.  Secondly, I think also, circumstantially, there’s sufficient evidence for a corpus based on the fact that it appears the accident had just happened, that this defendant as the only one there; that this defendant got in the car and tried to start it, and that this defendant then left that scene.  I also think that they’ve established by circumstantial evidence the corpus of the DUI.

 

So either way, through the leaving the scene, it’s admissible.  The corpus has been established; corpus circumstantially has been established as to the DUI, and under the case cited by the state, defendant’s admissions are admissible.

 

. . .I’m going to allow the defendant’s admission both as part of the accident investigation, and if there was a criminal investigation, assuming the predicate is laid for that.

 

Morris then went on to testify that he asked the defendant what had occurred at the traffic crash and the defendant replied “. . . he had lost control of his vehicle and collided with the pole.”  The state asked “[d]id he say he was the driver?” and the trooper responded “[y]es, he did.”  The defendant also told him that he had no other passengers.  The trooper testified at that point, he observed a continuous strong odor on the defendant stating ‘I could smell it from a couple of feet away.” He also testified that the defendant had slurred speech, and kind of a thick tongue; he had trouble pronouncing words. The trooper testified that the defendant was wearing a tuxedo when he got to his house; a complete tuxedo with socks and shoes on.  The trooper explained that he concluded his traffic crash investigation when the defendant told him he collided with the pole. 

After all of the evidence, the defense moved for a Judgment of Acquittal, arguing but for defendant’s alleged statements that he was drunk, the state failed to prove the crime of DUI.  The court denied the motion.  The jury found the defendant guilty of leaving the scene of a crash involving property damage as charged in the citation. As for the charge of driving under the influence involving property damage, the jury found the defendant guilty of the lesser included charge of driving under the influence as included in the citation.  After the jury was excused, defense counsel argued that the verdicts were inconsistent because the jury found him not guilty of DUI with property damage, but guilty of leaving the scene of an accident with property damage.  The court agreed the verdicts were inconsistent but found it was within the prerogative of the jury. The court adjudicated him guilty for leaving the scene and for DUI.  [1]

This Court finds that there was sufficient evidence for the jury to find that the defendant was DUI when his car went off the road into a pole.  Two independent witnesses observed the appellant with the keys to the car, alone with the car, just after the accident happened. They observed him start the car and attempt to drive away before the car died.  They had an opportunity to speak with appellant and observe he was impaired.  Corpus existed for the crime at least circumstantially, before the appellants admissions were admitted into evidence.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of _____________, 2007.

                                                                                   

________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    _____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

Copies furnished to:

County Judge  Marc Salton

Harvey G. Hesse, III,  Esq.

Devin Jones, Esq., A.S.A.


[1] The record reflects a verdict form finding the defendant guilty of the lesser included charge of DUI as included in the citation, instead of driving under the influence involving property damage. (R16). The record also includes an order granting the defendant’s motion for judgment of acquittal as to driving under the influence and a separate order granting the defendant’s motion for judgment of acquittal for driving under the influence involving property damage.(R17-18). The Judgment and Sentence indicates that he was found guilty by a verdict of a jury of lesser included of driving under the influence (not driving under the influence with property damage).