County Criminal Court: APPELLATE PROCEDURE – Standard of Review – trial
court did not err in denying motion for judgment of acquittal - in reviewing
trial court’s denial of defendant’s motion for judgment of acquittal, when
defendant’s criminal conviction is based upon both direct and circumstantial
evidence, the appellate court applies a de novo standard of review. Trial court’s finding of guilt was based on
competent, substantial evidence - Judgment and sentence affirmed. Carter v. State, No.
CRC10-00007APANO (Fla. 6th Cir. App. Ct. September 29, 2010).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
JERRY LOUIS CARTER
Appellant,
v. Appeal No. CRC 10-00007 APANO
UCN 522008TR117016XXXXXX
UCN 522008CT116995XXXXXX
522010AP000007XXXXCR
STATE OF
Appellee.
__________________________________/
Opinion filed _____________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge William H. Overton
Thomas Matthew McLaughlin, Esquire
Attorney for Appellant
Lee Pearlman, Esquire
Assistant State Attorney
Office of the State Attorney
Attorney for Appellee
ORDER AND OPINION
PETERS, Judge.
THIS MATTER is before the Court on Appellant, Jerry Louis Carter’s, appeal from a conviction, after a non-jury trial, of Driving While Under the Influence of Alcohol or a Controlled Substance and Leaving the Scene of an Accident, With property Damage in violation of § 316.193 Fla. Stat. (2007). Appellant argues his Motion for Judgment of Acquittal should have been granted. After review of the record and the briefs, this Court affirms the judgment and sentence.
Factual Background and
Trial Court Proceedings
The case was tried at non-jury trial on February 3, 2010. The State presented six witnesses; an eyewitness to the accident, the initial responding Sheriff’s Deputy, two responding police officers from the Treasure Island Police Department, a hospital nurse and a forensic toxicologist.
The eyewitness testified, in part, that on September
4, 2008; (1) that she observed Mr. Carter drive his vehicle, make a left turn
at “about 60 miles an hour,
actually”, then run off the road and hit “boulders”, bushes and a cable
or phone “big
grey box,” then turn right and again run off the road striking trees and
bushes, then turn his vehicle around proceed the opposite direction hitting the
eyewitness’ car while continuing on to drive across a bridge, (2) the eyewitness pursued Mr. Carter and called 911
with her cell phone, (3) as Mr. Carter drove over the bridge he struck both the
right and left side of the bridge, (4) she was present when a deputy was
talking with Mr. Carter as he sat in his stopped vehicle, (5) that “the
sheriff’s office was talking to him and they opened up his car door, the driver’s
side, and he fell out onto the sidewalk, right out onto the -- well, on the
street”, (6) the eyewitness identified Mr. Carter as the operator of the
involved vehicle.
Deputy
Shawn Heffner of the Pinellas County Sheriff’s Office testified, in part: (1) he
responded to information received through his dispatch of a possibly impaired
driver driving northbound on Gulf Boulevard, coming from Treasure Island into
the area where I patrol, Madeira Beach, (2) “the information in the call
provided a description of the vehicle, as well as the occupant and, basically,
the driving behavior. As I was traveling
southbound on Gulf Boulevard and going over the John’s Pass Bridge,
approximately 129th Avenue, I observed a vehicle that matched that description,
with a white male occupant looking down towards the steering wheel as I was
heading southbound and that vehicle was heading northbound”, (3) “I turned
around. … [a]nother BOLO was received by a witness that was following
the suspect vehicle, that he had pulled into a parking lot just north of that
bridge. I pulled into
that parking lot … and at which point I made contact with that occupant”, (4) he
identified Mr. Carter as the operator of the involved vehicle, (5) “And in the course of my contact, it was difficult
for him to respond to me as I had asked him questions on where he was going,
where he was coming from, was there anything wrong with him, stuff of that
nature. I had asked for
identification. As he began to look for
his identification, he appeared to just forget what I just asked for, and had
difficulty even locating his ID or anything in that nature. I had to repeat questions multiple times to
him”, (6) “As I continued to ask him questions, it was to the point where I had
asked him to exit the vehicle, for my safety, as well as his, to get the keys
out of the ignition, as he seemed not to be able to understand where he was at
and answer the questions I was asking him about providing identification and
stuff of that nature. When he exited the
vehicle, he had difficulty standing. He
widened his own stance, used the vehicle to maintain his balance.” (7) “He
didn’t elaborate on his medical condition, other than the stitches were from a
catheter being removed, and that he was just coming from his home, but he
didn’t know where he was going, stuff of that nature. But, you know, nothing -- no real complete
sentences. Nothing
that made a lot of sense.” (8) “He was even offered medical assistance,
which he had refused. We would have
provided that to him if he was claiming any kind of a medical emergency. So, at no time did he make any kind of claim
that he needed medical assistance.”
Officer
Kenneth Hilland of the Treasure Island Police
Department testified, in part: (1) Mr.
Carter was the driver of the vehicle that was involved in the crash, (2) “The
defendant, Mr. Carter, did not know he was involved in a traffic crash. He was very incoherent. He seemed to be under the influence.” (3) Mr.
Carter admitted he had taken methadone earlier that day, (4) a blood sample of
Mr. Carter was collected in the officer’s presence at a hospital, (5) that Mr.
Carter’s reason for being in the hospital dealt with low blood sugar and his
diabetes.
Officer
Adam Lightfield of the Treasure Island Police
Department testified, in part: (1) that at
the scene he “approached the [Mr. Carter] and asked him if everything was okay,
if he needed any medical assistance. At
that time, he advised me that he did not.” (2) “I observed him to have mumbled,
slurred speech. Also, he was having
trouble keeping his eyes open.” (3) “I asked him if he was sick or
injured. He told me he was not. I asked him if he was diabetic. He told me that he was. I asked him if he takes insulin. He told me that he does not.” (4) he
administered field sobriety exercises, (5)
a video of questions asked to Mr. Carter during the DUI investigation
and the performance of the field sobriety exercises at the scene was played for
the trial court, (6) Mr. Carter stated he was taking two different medications,
(7) An officer asked Mr. Carter, “Are you okay?
Do you need paramedics to check you?”
Mr. Carter responded “I don’t know.
I guess.” (8) Officer Lightfield, placed Mr.
Carter in custody, (9) two breathalyzer tests were administered and the results
of both tests were 0.00, (10) Paramedics did respond to Mr. Carter and determined
that he had low blood sugar, (11) Mr. Carter was transported to a hospital,
(12) At the scene of the traffic stop Mr. Carter did not mention his blood
sugar, he did advise he was diabetic, but did not mention that he was having
any issue with his diabetes, (14) Mr. Carter’s blood sugar was measured about
two hours after the crash had occurred.
Debra
Maxson testified, in part: (1) she is employed as a
nurse at Palms of Pasadena Hospital emergency room, (2) after Mr. Carter
consented, she drew blood from him on the day in question, (3) the police
officer’s sealed kit was brought in, opened and used in the blood draw, (4) the
officers watched her draw the blood.
Jeffrey Hays testified, in part: (1) that he is the chief toxicologist at the Pinellas County Forensic Laboratory, (2) that his laboratory did several different drug screens using different techniques in order to find and confirm drugs that may have been in the blood specimen, (3) the tests on Mr. Carter’s blood sample revealed methadone in the blood, (4) “Methadone, as a narcotic analgesic, is a central nervous system depressant. So, a person showing impairment by methadone would be sluggish, drowsy, uncoordinated, probably disoriented. Typical symptoms similar to drunken behavior.” (5) “Depending upon the dose that was taken, literature references the list, the analgesic effects of a normal dose of methadone to last four to six hours. Again, depending upon dose and tolerance of the person, the [impairing] effects could last as much as 12 to 24 hours.”
When the State rested their case, the Appellant moved for a Judgment of Acquittal arguing, in pertinent part, the State failed to prove that at the time of driving Mr. Carter was in actual physical control of a motor vehicle while under the influence to the extent that his normal faculties were impaired. Further there was a reasonable possibility that Mr. Carter was going under diabetic shock.
The Motion for Judgment of Acquittal was denied. The trial court ruled:
The Court clearly finds that the defendant was impaired that day. Obviously, the issue is whether or not he was impaired because it was his blood sugar or whether he was under the influence of a controlled substance. Well, I find that it really was both. I mean, I have no doubt to reject that he had issues. Obviously, the fire department was called. And I know nobody testified to this fact but, clearly, when you have blood sugar issues, his conduct is very similar to that. Just like it’s very similar to a controlled substance of methadone of being sluggish, drowsy, disoriented.
And we know that in DUI cases, sometimes we have all kinds of cases where we have synergistic effects. And, clearly, what the State has to prove is (1) that he was driving -- there’s no doubt that he was driving; (2) that he was under the influence to the extent his normal faculties were impaired -- the impairment portion of that was clearly proved.
The issue is whether or not he was impaired under the controlled substance. And one of the things that the Court looks at is, obviously, is when Mr. Hays testified to the fact that we’re talking about a short shelf life here or, I don’t know, not shelf life, but, I mean, 4 to 6 hours, not a very long time, maximum of 12 to 24. And, clearly, he was affected. The Court feels that this certainly had some type of synergistic effect.
I’m not doubting that he had blood sugar issues; he clearly did. You can kind of see him go in and out. I mean, sometimes he’s very lucid. You know, he’s even asking him, “You mean I really did hit something?” You know, type of situation where he is lucid and asking for attorneys, and then other times he’s just out of it, you know, has not idea, you know, so.
But alls the law requires, there is no quantitative effect, it’s just that he is under the influence of a controlled substance, and I believe, certainly, the methadone contributed. Whether or not it contributed a whole bunch or contributed a little, that’s not what the law requires, is that he has to have a controlled substance.
Obviously, if methadone was not a Schedule IV or whatever, if it was blood sugar, I mean, only, then the Court will find him not guilty. But, clearly, in this particular case, there was a combination. So, that combination is sufficient for the Court to find him guilty of the offense.
I also find him guilty of the careless driving because they kind of go hand in hand, but I don’t plan to do anything additional on the careless driving. It just will be concurrent.
This appeal was
timely filed.
Issues
Appellant argues that the trial court erred when it denied the Mr. Carter’s Motion for Judgment of Acquittal because the conviction was based upon circumstantial evidence and there was a reasonable hypothesis of innocence in that Mr. Cater was suffering from a medical condition, specifically low blood sugar as a result of his diabetes. Further, he argues the trial court erred because the conviction was based upon an erroneous “mischaracterization of the evidence and law.”
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
(
Judgments of Acquittal
The rule is well established that the prosecution, in order to present a prima
facie case, is required to prove each and every element of the offense charged beyond a reasonable doubt, and when the prosecution fails to meet this burden, the case should not be submitted to the jury, and a judgment of acquittal should be granted. Baugh v. State, 961 So.2d 198, 203-204 (Fla. 2007). Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. Pagan, 830 So.2d at 803. Proof may be by direct or circumstantial evidence. Direct evidence is that to which the witness testifies of his or her own knowledge as to the facts at issue. Circumstantial evidence is proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist. Baugh, 961 So.2d at 203, n. 5. (Emphasis added).
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 the trier of fact might fairly and reasonably infer from the evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. See Reynolds v. State, 934 So.2d 1128, 1145 (Fla. 2006).
However, “where a conviction is based wholly upon circumstantial evidence, a special standard of review applies.” Darling v. State, 808 So.2d 145, 155 (Fla.2002). As stated in Darling:
Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. The question of
whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.
Id. (quoting State v. Law, 559 So.2d 187, 188
(Fla.1989)). Therefore, a motion for judgment of acquittal should be granted in
a case based wholly upon circumstantial evidence if the state fails to present
evidence from which the jury could exclude every reasonable hypothesis except
that of guilt. See Darling, 808 So.2d at 155-56.
Nonetheless, “[t]he state is not required to ‘rebut conclusively every possible
variation’ of events which could be inferred from the evidence, but only to
introduce competent evidence which is inconsistent with the defendant's theory
of events.” Id. at 156 (quoting Law, 559 So.2d
at 189). Once the State meets this threshold burden, it becomes the
jury's duty to determine “whether the evidence fails to exclude all reasonable
hypotheses of innocence ..., and where there is substantial, competent evidence
to support the jury verdict, [the Court] will not reverse.” State
v. Law, 559 So.2d 187, 188 (Fla.1989).
Reynolds, 934 So.2d at 1145 -1146.
The Present Case
The testimony
and evidence set forth above presented a prima facie case of guilt. Appellant argues there was no direct evidence
that Mr. Carter was driving while impaired by a controlled substance. The difficulty with this argument is that
there was such direct evidence. Mr.
Carter had admitted he had consumed methadone earlier that day.
The tests on Mr. Carter’s blood sample revealed methadone. Officer Adam Lightfield
of the Treasure Island Police Department testified that at the scene he
“approached the [Mr. Carter] and asked him if everything was okay, if he needed
any medical assistance. At that time, he
advised me that he did not.” Further, “I asked him if he was sick or
injured. He told me he was not. I asked him if he was diabetic. He told me that he was. I asked him if he takes insulin. He told me that he does not.” Jeffrey Hays, the chief toxicologist at the
Pinellas County Forensic Laboratory, testified “Methadone, as a narcotic
analgesic, is a central nervous system depressant. So, a person showing impairment by methadone
would be sluggish, drowsy, uncoordinated, probably disoriented. Typical symptoms similar to
drunken behavior.” Further “[d]epending upon
the dose that was taken, literature references the list, the analgesic effects
of a normal dose of methadone to last four to six hours. Again, depending upon dose and tolerance of
the person, the [impairing] effects could last as much as 12 to 24 hours.”
Because
the evidence on the disputed point was both direct and circumstantial, it is
unnecessary to apply the special standard of review applicable to
circumstantial evidence cases. 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).
The trial
court’s findings of guilt were supported by competent, substantial evidence.
Conclusion
Based upon the
foregoing, this court finds the
Appellant’s convictions were supported by competent, substantial evidence. There was no error by the trial court.
We
affirm the judgment and sentence.
IT IS THEREFORE ORDERED that the convictions of the Appellant are affirmed.
ORDERED at Clearwater, Florida this ____ day of September, 2010.
Original order entered on September 29, 2010 by Circuit Judges Michael F. Andrews, Raymond O. Gross, and R. Timothy Peters.
cc: Honorable William H. Overton
Thomas Matthew McLaughlin, Esquire
Office of the State Attorney