County Criminal Court :  CRIMINAL PROCEDURE --- Jurors and Jury Instructions --- Trial court did not abuse discretion in giving particular jury instructions and declining to give proposed instructions, as reasonably a jury would not have been misled by the given instructions.  Katrina T. Conner v. State, No. CRC 07-56 APANO ( Fla. 6th Cir.App.Ct. June 12, 2008). 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

KATRINA T. CONNER

 

            Appellant,

                                                                              Appeal No. CRC 07-56 APANO

                                                                              UCN522007AP000056XXXXCR

v.

 

STATE OF FLORIDA

 

            Appellee.

__________________________/

 

 

Opinion filed _________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge John Carassas

 

Ryan T. Truskoski, Esquire

Attorney for appellant

 

Beatriz Cardenas, Esquire

Assistant State Attorney

 

 

ORDER AND OPINION

 

 

            (J. Newton)

 

 

            THIS MATTER is before the Court on the defendant, Katrina T. Conner’s, appeal from a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence.

Facts

 

            The defendant, a tenant at an apartment complex, got into a dispute over the phone about late rent. Upset by what she was told, she went to the apartment complex office. The defendant ran towards the person who had been speaking to her on the phone (Nguyen), put her finger in her face, and yelled at her in a loud an angry manner. The defendant said that if Nguyen disrespected her like that again she would “kick her a --.” Nguyen tried to inch away from her desk, but the defendant came over to the side of the desk and stood toe-to-toe with her. At that point, one of the defendant’s co-workers, Frantz, intervened and stepped between the defendant and Nguyen. The defendant used her chest to push into Frantz --- so hard it pushed Frantz into Nguyen. The defendant then made a fist and cocked her arm as if to hit Frantz or Nguyen. The defendant was told to leave, but said not until she had “kicked her a--.” The defendant was then told that the police were being called and that Nguyen was pregnant. To which the defendant responded: “Good, I’ll kill you both.” The defendant denied touching anyone. There was testimony from several people that they feared for their safety and that the defendant interrupted the normal routine of the office.

Trial court did not abuse discretion in giving particular jury instructions

and declining to give proposed instructions

           

            The defendant claims the trial court erred in not giving her proposed jury instructions. She claims this prevented the jury from being instructed with the theory of her case. The defendant wanted five instructions given. They were:

 

1.                  Defendant’s right to freedom of speech is protected unless

            it is likely to produce a clear and present danger and is

            not that which merely stirs public to anger, invites dispute,

            brings a condition of unrest, or creates a disturbance, this

            is not a breach of the peace.

 

2.                  To constitute disorderly conduct or a breach of the peace,

            words must be “fighting words,” which cause the

            average person to whom they are addressed to fight. If

            you find that the words used by the defendant were likely

            to provoke retaliation in the average person, and invite

            him or her to fight, you should find the defendant guilty.

 

3.                  To support a conviction for disorderly conduct there

            must be something more than loud or profane

            language and belligerent attitude.

 

4.                  Creating a scene and being an annoyance is not disorderly

            conduct.

 

5.                  A conditional threat to do injury at some unspecified future

            time based upon possible eventuality does not create a

            reasonable apprehension of imminent threat.

 

The instructions actually given were:

 

                        Before you find the defendant guilty of Disorderly Conduct,

                        the State must prove either that the Defendant’s acts: (sic)

                                    1.         Committed an act which

                                    2.         Corrupted the public morals OR

                                                Outraged the sense of public decency OR

                                                Affected the peace and quiet of persons who may

                                                have witnessed them, OR

                                                Engaged in such conduct as to constitute a breach or the

                                                peace.

 

                        Mere words cannot amount to disorderly conduct unless they are fighting

                        words. “Fighting words” are those which by their utterance inflict injury

                        or tend to incite an immediate breach of peace. R. 210.

 

            A trial court’s decision whether or not to give proposed jury instructions is reviewed under an abuse of discretion standard of review. Amuller v. State, 944 So.2d 1136 (Fla. 2d DCA 2004). A review of the trial transcript, in conjunction with a review of the proposed instructions and the ones actually given, demonstrates to this Court that the trial court did not abuse its discretion in giving the instructions it gave, and in rejecting some of the proposed instructions, because the defendant’s theory of the case was adequately explained by the instructions.

            The test for reversible error is not if the instructions are erroneous or incomplete, but whether or not a jury might have reasonably been misled by the instructions. See Mogavero v. State, 744 So.2d 1048 (Fla. 4th DCA 1999). “[T]rial judges have wide discretion in decisions regarding jury instructions, and the appellate courts will not reverse a decision regarding an instruction in the absence of a prejudicial error that would result in a miscarriage of justice.” Chandler v. State, 744 So.2d 1058, 1060 (Fla. 4th DCA 1999). Our review of the trial transcript reveals no reason to believe the jury was misled by the instructions, or that there was any prejudicial error that resulted in a miscarriage of justice by the trial court’s refusal to read the proposed instructions. Accordingly, this Court affirms the judgment and sentence.                 

            IT IS THEREFORE ORDERED that this Court affirms the judgment and

 

sentence.

 

            DONE AND ORDERED in Clearwater, Pinellas County, Florida this _____ day of June, 2008.

 

_____________________________                          ____________________________

            Joseph A. Bulone                                                         David A. Demers

            Circuit Court Judge                                                       Circuit Court Judge

 

 

                                    ___________________________

                                                Cynthia J. Newton

                                                Circuit Court Judge

 

cc:        Office of the State Attorney

            Honorable John Carassas

            Ryan T. Truskoski, Esquire