County Criminal Court: CRIMINAL LAW --- Evidence – Judgment of Acquittal – Character evidence.  Abandonment is not an element of violation of §828.13(2)(a), Florida Statutes, concerning unlawful confinement of animals.  De novo standard applies to appellate court’s review of trial court decision on motion for judgment of acquittal.  Competent, substantial evidence supported the trial court’s decision.  Trial court’s decision on the admission of evidence is reviewed under the abuse of discretion standard.  Witnesses were properly excluded from testifying about character as the witnesses could not address appellant’s alleged reputation in the community for the love and care of animals, and as reputation was not an essential element of the charges.  Trial court’s orders denying motions for judgment of acquittal and excluding witnesses affirmed.  Howard v. State, No CRC 08-00011APANO (Fla. 6th Cir.App.Ct. January 14, 2009).

 

 

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

 

 

DORETTE M. HOWARD

 

            Appellant,

 

v.                                                                                                                                          Appeal No. CRC 08-00011 APANO

                                                                        UCN522006MM030944XXXXNO

 

STATE OF FLORIDA

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Robert Dittmer

 

Joseph C. Bodiford, Esquire

Attorney for Appellant

 

Paul Ernest Bolen, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Dorette M. Howard’s, appeal from a conviction, after a jury trial, of Unlawful Confinement of Animals, a first degree misdemeanor, in violation of § 828.13 Fla. Stat. (2006).  After review of the record and the briefs, this Court affirms the judgment and sentence.

Factual Background and Trial Court Proceedings

            On October 19, 2006, the Appellant, Dorette Howard, was issued a Notice to Appear/Ordiance Violation for the offense of Unlawful Confinement of Animals.   The notice alleged:

Two dogs were confined to a cage without sufficient supply of good wholesome food and water and kept in a cage which size prevents them from wholesome exercise and change of air.  Dogs in question were taken by the Humane Society for their health/welfare.

 

On January 23, 2008, a Misdemeanor Information was filed charging the Appellant with two counts of Neglect or Abandonment of an Animal, in violation of Chapter 828.13, Florida Statutes.  The Information alleges the offenses occurred on or between October 13 and October 19, 2006.  Also on January 23, 2008, a jury trial was conducted and the Appellant was found guilty by the jury on both counts of the Misdemeanor Information.

            At trial, the State presented three witnesses.  A neighbor of Appellant testified that he heard the dogs, which were confined in a cage on Appellant’s lanai, whining and in distress from October 14 through October 17, 2006.  A Pinellas County Sheriff’s Deputy testified that on October 19, 2006 he arrived at the residence and investigated finding “the dogs confined in a cage that I felt was not humane, filthy conditions, unsanitary”.  The final witness in the State’s case was a certified veterinary technician who was the manager of medical services at the Humane Society of Pinellas.  That witness testified that she had responded to the scene.  The dogs were covered in urine and feces.  Their feet were wet with urine.  Their coats were stained with feces.  Theses stains did not wash out after bathing the dogs at the humane society which indicates repeated exposure to being in urine and feces.  There were urine scalds on the pads of the dogs’ feet.  There had been food in the cage but it was stomped on and mixed with feces.  The water containers were empty.  The State also introduced photographs into evidence as State’s Exhibits 2 through 26.  After the State rested its case, Appellant moved for a judgment of acquittal which was denied.  At sentencing, the Court adjudicated the Appellant guilty on both counts and placed her on terms of probation with certain other conditions and sanctions.

The Motions for Judgment of Acquittal

A. Standard of Review.  In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Pagan v. State, 830 So.2d 792, 803 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); State v. Fagan, 857 So2d 320 (Fla. 2nd DCA 2003).

B. Argument and Analysis.  The Appellant argues the trial court erred by denying the Motions for Judgment of Acquittal made at the conclusion of the State’s case and again at the conclusion of the Appellant’s case.  Appellant argues there was insufficient evidence to sustain a conviction.  Specifically, there was no evidence of abandonment, and “no credible and unrefuted evidence of a prima facie case of neglect, as both State and defense witnesses presented testimony that the dogs had both food and water available to them at the time they were placed in the in the crates for training.” 

The difficulty with this argument is that the State did not need to prove abandonment.  The charges could be established by proving “unlawful confinement”.  § 828.13 (2)(a), Fla. Stat. (2006).  That is, that the person charged “(i)mpounds or confines any animal in any place and fails to supply the animal during such confinement with a sufficient quantity of good and wholesome food and water”.   In the present case, in addition to other evidence, the State presented testimony and photographs that the dogs had been confined and in distress for several days.  The dogs were covered in urine and feces.  Their feet were wet with urine.  There were urine scalds on the pads of the dogs’ feet. Their coats were stained with feces.  The water containers were empty and the food was stomped on and mixed with feces.  There was competent and substantial evidence to support a verdict.

Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence.  In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.  Courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.  Fitzpatrick v. State, 900 So.2d 495, 507 (Fla. 2005); Morales v. State, 952 So.2d 1266 (Fla. 2nd DCA 2007).   In the present case, the denial of the motions for judgment of acquittal should be affirmed.

 The Exclusion of Character Evidence at Trial

A. Standard of Review.   A trial judge's rulings on the admission or exclusion of evidence are reviewed under the abuse of discretion standard.  LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001).   Under the abuse of discretion standard, discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.  Frances v. State, 970 So.2d 806, 813 (Fla. 2007). 

B. Argument and Analysis.  The Appellant argues the trial court erred when it excluded the testimony of defense witnesses Harold Piper and Jodie Stambaugh.  Both witnesses are Pinellas County animal control officers who once responded to Appellant’s residence months prior to the charged crimes.  Mr. Piper responded to Appellant’s residence on August 21, 2006 and found no violations.   Ms. Stambaugh responded to Appellant’s residence on July 11, 2006 and found no violations.  In contrast, the trial court allowed the Appellant to present testimony from a third Pinellas County animal control officer, Michael Lavelle, who responded to Appellant’s residence during the time period that the alleged charged offenses occurred.  At trial, Appellant’s counsel argued that the testimony of Mr. Piper and Ms. Stambaugh was reverse Williams Rule evidence and should be admitted.  Appellant now concedes that the testimony was not reverse Williams Rule but nevertheless argues it should have been admitted pursuant to Florida Statute § 90.404(1) as evidence of a character trait.  Specifically, “that there was a history of love and care for the animals.”  

As a matter of law, evidence of a person's character or a trait of character is generally inadmissible to prove action in conformity with it on a particular occasion.  One exception to this rule is evidence of a pertinent trait of character offered by an accused in a criminal case, or by the prosecution to rebut the trait. § 90.404(1) Fla. Stat. (2006); See Pino v. Koelber, 389 So.2d 1191 (Fla. 2nd DCA 1980).  The word “pertinent” is read as synonymous with “relevant.”  U.S. v. Angelini, 678 F.2d 380 (1st Cir. 1982).  When evidence of the character of a person or of a trait of that person's character is admissible, proof may be made by testimony about that person's reputation.  § 90.405(1) Fla. Stat. (2006).  Only when character or a trait of character of a person is an essential element of a charge, claim, or defense, may proof be made of specific instances of that person's conduct.  § 90.405(2) Fla. Stat. (2006). 

In addressing this issue we will not take up the obvious concern that this argument is raised by Appellant for the first time on appeal.  There is a more elementary difficulty.  The anticipated testimony of Mr. Piper and Ms. Stambaugh is simply that each of them responded to Appellant’s residence once in the past and found no violations.  There is nothing in the record to suggest that these witnesses had any knowledge of or testimony to offer about Appellant’s reputation in the community for the love and care of animals.  Therefore their testimony would not be relevant and was properly excluded by the trial court.  Finally, in the present case, the claimed character trait is not an essential element of the charges.  Therefore, even if the record suggested the existence of testimony concerning specific instances of Appellant’s conduct, which it does not, such testimony would not be admissible. 

Conclusion

            For the reasons set forth above, this court concludes that the judgment and sentence of the trial court should be affirmed.

IT IS THEREFORE ORDERED that the judgment and sentence of the trial court is affirmed.

            ORDERED at Clearwater, Pinellas County, Florida this ____ day of January, 2009.

Original opinion entered by Circuit Judges R. Timothy Peters, Michael F. Andrews, & Raymond O. Gross.

 

           

cc:        Honorable Robert Dittmer

            Office of the State Attorney

            Joseph C. Bodiford, Esquire