County Criminal Court: CRIMINAL LAW-Jury Trial-Evidence- trial court did not error in denying appellant's motion for judgment of acquittal - there was no prima facie showing or evidence of acting in self-defense, the State of Florida was under no burden of disproving self-defense ; before the Defendant can assert entitlement to the jury instruction of justifiable use of non-deadly or deadly force, there must first be evidence of self-defense. Prosecutor’s comments, even if error, were harmless. Order affirmed. Larney v. State, No. CRC 073939CFAWS (Fla. 6th Cir. App. Ct. January 7, 2009 ).

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

IN THE CIRCUIT COURT SIXTH JUDICIAL CIRCUIT

IN AND FOR PASCO COUNTY, FLORIDA

CRIMINAL JUSTICE APPELLATE DIVISION

JOAN LARNEY

Appellant Appeal No. 07-3939 CFAWS

UCN: 512007CF003939A000WS

Vs Lower Case No. 07-3119MMAWS

STATE OF FLORIDA

Appellee

_____________________/

Opinion filed ___________________

Appeal from Judgment and Sentence

Pasco County Court

County Judge Marc Salton

Bernie McCabe

Assistant State Attorney

Attorney for Appellee

Charles A. Greene, Jr.

Asst. Regional Counsel

Attorney for Appellant

ORDER AND OPINION

(D. DISKEY, J.)

THIS MATTER is before the Court on Appellant/Defendant, Joan Larney’s, appeal of the trial court’s rulings below. After reviewing the briefs and record, this Court affirms the trial court’s decisions.

FACTUAL AND PROCEDURAL HISTORY

On March 29, 2007, the Appellant, Joan Larney, was arrested for aggravated assault on William Manning and George Watrous. The State of Florida elected not to proceed on the aggravated assault charges and charged the Appellant with the charge of improper exhibition of a firearm or a dangerous weapon. On June 12, 2007, a jury trial was conducted on the charge of improper exhibition of a firearm or dangerous weapon. The Appellant was represented by counsel at her jury trial. The jury found the Appellant guilty as charged. The Appellant was sentenced by the trial court on June 14, 2007. The Appellant filed her timely notice of appeal On July 13, 2007.

Appellant alleges four errors by the trial court.

First, the Appellant alleges that the trial court erred in denying the Appellant’s Motion for Summary Judgment of Acquittal made at the close of the State of Florida’s case. Specifically, the Appellant alleges that the State of Florida did not prove that the Appellant’s actions were not in self-defense and “thus failed in its case in chief to prove all of the elements of the charge of improper exhibition of a firearm or dangerous weapon…” The Appellant makes no argument that the State failed to establish prima facie evidence of the elements that comprise the charge of improper exhibition of a firearm or dangerous weapon pursuant to Florida Statute 790.10. The State must prove the defendant’s guilt beyond a reasonable doubt and when the defendant presents a prima facie case of self defense, the State’s burden includes proving beyond a reasonable doubt that the defendant did not act in self defense. See Fowler v State, 921 So2d 708 (Second DCA 2006). In the case at bar, the following exchange was had between the trial court and Ms. Gay-Hairston, attorney for the defendant below and Appellant herein. At page 23 of the transcript, line 16,

Attorney Gay-Hairston: “…I mean there is competent evidence that Ms. Larney acted in self defense by using non-deadly force to protect her property and there has been no evidence to rebut that.

The Court: What evidence is there that she used non-deadly force to protect her property?

Ms. Gay-Hairston: Well, I mean, she had the gun. And he said the dog was --- he ran out the house.

The Court: This might apply (indiscernible) individual.

Ms. Gay-Hairston: No, that’s what one person said. But he also said that the dog ran out the house and he was buffing the car. The dog wasn’t with him when he was doing that. The dog was with him when he was in the middle of the street taking a picture of her after everything.

The Court: I am going to deny the Motion. Okay. It appears to me that most of your witnesses are going to be irrelevant so we are going to decide which ones you can call and which ones you can’t.

Ms. Gay-Hairston: I don’t see how they’re going to be irrelevant if we have the defense.

The Court: I’m telling you they’re going to be irrelevant. That’s how they’re going to be irrelevant.

Ms. Gay-Hairston: We have self-defense.

The Court: You don’t have self-defense, unless you client gets up and testifies.

Ms. Gay-Hairston: She’s testifying.

The Court: That this dog was attacking her, then you can bring out that evidence. But right now the evidence in testimony is that she was pointing it at these individuals. And there is no self-defense to point it at these individuals.

Ms. Gay-Hairston: She’s going to testify.

The Court: That she had to point it at these two men?

Ms. Gay-Hairston: That she did not point it at these people.

The Court: Well, then there is no self-defense because she’s going to deny the allegations.

Ms. Gay-Hairston: She never pointed…”

The trial court therefore found that there was no testimony or evidence offered in the State of Florida’s case in chief that supported the theory of self-defense. When the trial court inquired of counsel to specifically detail the evidence that was presented that supported the use of non-deadly force by the Appellant, the attorney eventually responded that the Appellant herself would testify. Because there was no prima facie showing or evidence of acting in self-defense, the State of Florida was under no burden of disproving self-defense.

The Appellant’s second assertion of trial court’s error is that the trial court did not allow the jury instruction of use of non-deadly force. The defendant has the initial burden of going forward with evidence of self-defense. Once the defendant has presented evidence of self-defense, then the State of Florida’s burden includes the requirement that the State prove that the defendant did not act in self-defense by proof beyond a reasonable doubt. See Fowler supra at page 711. Therefore before the Defendant can assert entitlement to the jury instruction of justifiable use of non-deadly or deadly force, there must first be evidence of self-defense. In the case at bar, the Appellant denied ever pointing the gun or exhibiting in a rude, careless, angry or threatening manner.

The Appellant testified at the trial below that she at no time pointed the weapon but “kept it skyward”. See transcript page 76, line 16 through 17. This Court finds that the trial court’s determination that no evidence of self-defense was presented during the trial that would warrant a self-defense instruction to be supported by the record.

Appellant’s third assignment of error is that the trial court erred in over-ruling the defense’s objection to an alleged misstatement of the elements of the charged crime by the prosecuting attorney. During closing argument, the attorney for the State of Florida stated “I have to prove the defendant had a gun and have to prove it to you that she handled it in an inappropriate, reckless, dangerous manner. That’s it.” Appellant argues that the prosecutor’s statement misinformed the jury of the elements of the actual charge of improper exhibition of a firearm or dangerous weapon. However, the statement by the prosecutor must be placed into the context of which it was made. The full statement appearing in the transcript page 131, beginning line 8 is as follows:

Now, also there was testimony that, well, these victims certainly couldn’t have been scared because they took a picture. Maybe they were. Maybe there weren’t. Their testimony was, they were scared. But it doesn’t matter; I don’t have to prove whether or not they were scared. That’s not an element that I have to prove to you. I have to prove the defendant had a gun and I have to prove to you that she handled it in an inappropriate, reckless, dangerous manner. That’s it.

The context in which this statement was made was focused on not the elements of the charge, but the fact that victim’s fear was not an element required to be proven. The trial court subsequently properly advised the jury of the elements of the charged crime. Given the context in which this statement was made, and the trial court’s correct instruction of the jury, we find no error.

Finally, as the Appellant’s fourth assignment of error, the Appellant asserts that the trial court in over-ruling the defense’s objection to statement made by the prosecutor that the defendant was trying to “trick us”, because the defendant “knows that she is guilty”. The exact statement of the prosecutor appears at transcript page 137, beginning line 4 and is as follows:

“Now, why would someone do something to try and trick us like that? Well, because the defendant knows that she is guilty”. The defense’s objection of improper characterization was subsequently overruled. This Court agrees that the statement is inappropriate and is not a comment on the evidence. However, as argued by defense counsel at the trial below, the effects of this statement is to insinuate that the defendant is “lying”. The Appellant fails to assert how, and this Court cannot find, that the statement in question serves to shift the burden of proof from the State of Florida to the Appellant herein. If error, this Court finds such error to be harmless. Accordingly, it is

ORDERED AND ADJUDGED that the judgment and sentencing herein is affirmed.

DONE AND ORDERED in Chambers, New Port Richey, Pasco County, Florida, on the _____ day of ___________, 200_____.

____________________________________

Stanley R. Mills

Primary Appellate Judge

_________________________________

W. Lowell Bray, Jr.

Circuit Court Judge

_____________________________________

Daniel D. Diskey

Circuit Court Judge

Cc: Charles A. Greene, Jr., Asst. Regional Counsel

Sean T. Donovan, Asst. State Attorney

Bernie McCabe, State Attorney