County Criminal Court: CRIMINAL LAW — Jury Trial/Evidence — Appellants arguments that the trial court erred by not granting a mistrial following witness testimony, admitting hearsay, and denying motion for judgment of acquittal lack merit.  Trial court’s judgment and sentence affirmed.  Donald Clifford West v. State of Florida, No. CRC08-003553-CFAES (Fla. 6th Cir. App. Ct. November 2, 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 FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

DONALD CLIFFORD WEST,     

                        Appellant,

                                                                        UCN:              512008CF003553A000ES

v.                                                                     Case No:       08-03553

                                                                        Lower No:    08-323MMAES

             

STATE OF FLORIDA,                                           

                        Appellee.                                                      

_____________________________/

Appeal from Pasco County Court

County Judge Robert Cole

 

Charles E. Lykes, Jr., Esq. 

for Appellant

 

Kenneth V. Compton, A.S.A.

for Appellee

 

 

 

 

ORDER AND OPINION

            Appellant was convicted of battery and resisting an officer without violence.  He argues that the trial court erred by (1) not granting a mistrial following witness testimony; (2) admitting improper hearsay; and (3) denying Appellant’s motion for judgment of acquittal.  Appellant’s arguments lack merit.  This court affirms the judgments and sentences as set forth below.

 

 

FACTUAL BACKGROUND

The victim, Robert Smith, lived in a hunting trailer with his 13 year old son, while Appellant lived in a house on the same property.  On the afternoon of December 15, 2007, Mr. Smith and his son were watching movies in the trailer, when Appellant entered without knocking.  Mr. Smith described Appellant as smelling of alcohol, spitting, and crazy looking.  Appellant wanted Mr. Smith’s son to clean his house and do his dishes.  Appellant clenched his fists and pointed his finger at Mr. Smith’s son.  He was yelling, cussing, and threatening.  Mr. Smith got in between Appellant and his son.  Since the trailer was small, his son was backed against the wall and Appellant was in his son’s face.  They bumped, pushed, and yelled until Appellant returned outside. 

After Appellant calmed down, Mr. Smith and his son went into the house.  While they washed the dirty dishes, Appellant had his nephew come in and watch.  As soon as they were done, Mr. Smith told his son that they needed to leave until Appellant calmed down.  On their way to the car, Appellant came over to them.  Appellant continued cussing and demanding that Mr. Smith and his son do things for him.  Mr. Smith tried to get from his trunk to the driver’s side door, but Appellant was in the way.  They pushed each other, but not excessively hard.  Mr. Smith eventually made it inside his car with his son. 

Once in the car, they had the windows rolled up and the doors locked.  Mr. Smith testified, “At this point, I’m getting a little nervous and my son’s screaming and yelling at me, ‘Dad, let’s get out of here, this guy’s crazy’ and, you know, he’s scared for his life, my son is, so – .”  Defense counsel’s objection to this statement was overruled without discussion.  Mr. Smith drove his car slowly down the long driveway, while Appellant walked beside his car, continuing to yell at him.  When they got to the fence at the end, it was padlocked, which was unusual.  Mr. Smith was unable to get out.  Since Appellant yelled to either roll down the window or he would break it, Mr. Smith rolled down the window.  At trial, Mr. Smith added, “I thought maybe we could talk, you know, and just clear the air or whatever because we had – I had lived there for a little bit and we’d had another altercation before this and we’d cleared the – .”  Defense counsel promptly objected to this comment, which was ostensibly sustained.  There was no request for mistrial or curative instruction.  The testimony continued that Appellant hit Mr. Smith in the mouth while he was sitting in the car.  The punch busted his lip and cracked his tooth, which fell out a couple days later.    

Deputy Christopher Crawford was dispatched to a welfare check for a juvenile.  When he arrived, it appeared that Mr. Smith and his son were trying to open the gate to get out of the yard.  The car was about two car lengths inside the gate.  Appellant was irritated that the son’s mother had come; he yelled and pointed his finger at her.  Deputy Crawford told Appellant to calm down several times, but Appellant would not stop yelling. 

When Deputy Roque arrived, Appellant was still yelling.  Deputy Roque described Appellant as being all over and in a rage.  Appellant approached the driver, reached in, and stuck his finger in Mr. Smith’s face.  Deputy Roque yelled at Appellant to step away from the car.  Deputy Roque jumped the fence to where Appellant was because they did not want anything to happen to Mr. Smith or his son.  Deputy Roque asked Appellant to unlock the gate so that the driver could leave.  Appellant walked up to the house, continuing to yell.  The gate was eventually unlocked, so Mr. Smith drove his car out and parked on the road.  Appellant returned outside.

After speaking with the victim and evaluating the situation, the officers decided to arrest Appellant.  Mr. Smith had a puffy lip with bruising, redness, and slight bleeding.  Photographs showing how Mr. Smith appeared to have been hit in the mouth by Appellant were entered into evidence.  When Deputy Roque told Appellant that he was going to be under arrest, Appellant was about three feet away and began to retreat.  Deputy Roque closed the gap and continued walking toward Appellant.  Deputy Roque got behind him and attempted to place Appellant in handcuffs by grabbing his arms and placing them behind his back.  Appellant pulled his hand away and kept saying, “Wait a minute.”  Appellant continued to resist and struggle.  Appellant was trying to push up off the ground with his arms.  Deputy Crawford pulled out his taser, but before he used it, he asked Appellant several times to comply.  Deputy Crawford had to use his taser on Appellant when Deputy Roque was bringing him to the ground.  Deputy Crawford reholstered his taser and helped by grabbing Appellant’s arms.  Once handcuffed, Appellant was escorted to the police car. 

Appellee was charged with Count (1) improper exhibition of a dangerous weapon; Count (2) battery; and Count (3) obstructing or resisting officer without violence.  On May 21, 2008, the jury returned a verdict of not guilty as to the first count, but guilty as to the battery and resisting arrest without violence charges.  Appellant filed a motion for new trial, which was denied following a June 19, 2008 hearing.  Appellant filed a timely notice of appeal.

 

LAW AND ANALYSIS

ISSUE I

            Appellant argues it was error to permit the jury to hear about a previous altercation between Appellant and the victim, Robert Smith.  During the trial, Mr. Smith commented, “I thought maybe we could talk, you know, and just clear the air or whatever because we had – I had lived there for a little bit and we’d had another altercation before this and we’d cleared the – .”  Appellant immediately objected to this unsolicited comment, which was ostensibly sustained.  After a bench conference, the trial court announced, “Now, let’s go away from that.”  The record does not reflect a motion for mistrial or to strike; nor does it contain a request for a curative instruction.

            To preserve an improper comment for appellate review, a contemporaneous objection must be raised.  Hagan v. Sun Bank of Mid-Florida, 666 So. 2d 580 (Fla. 2d DCA 1996).  If an objection is sustained, then a motion for mistrial must also be asserted.  Appellant is now procedurally barred because a motion for mistrial was not made, and its admission was not so prejudicial as rise to the level of fundamental error.      

            Even had Appellant moved for mistrial, there was not a reasonable possibility that the comment would have changed the outcome of the case.  The level of potential prejudice arising from an improper comment must be considered in the context of the surrounding circumstances.  McCall v. State, 463 so. 2d 425, 426 (Fla. 3d DCA 1985).  A witness comment may be erroneously admitted yet not rise to the level as to require reversal.  Here, Mr. Smith’s comment was incomplete and isolated.  Had Mr. Smith been allowed to finish his statement, it is likely that he would have said that they had been able to settle their previous disagreement verbally, which would have benefitted Appellant’s case.  Thus, even if it was error, it was harmless.  State v. DiGuilio, 491 So. 2d 1129, 1135-36 (Fla. 1986).   

 

ISSUE II

            Appellant next argues that it was error to permit the jury to hear testimony from Mr. Smith about a statement his 13 year old son made about fearing for his life.  Specifically, Mr. Smith explained that when they were in the car with the windows rolled up, he explained, “At this point, I’m getting a little nervous and my son’s screaming and yelling at me, ‘Dad, let’s get out of here, this guy’s crazy’ and, you know, he’s scared for his life, my son is, so – .”  Defense counsel’s objection to this statement was overruled without discussion.  Appellant’s argument that this statement constituted impermissible hearsay lacks merit.

            A trial court's decision to admit evidence is reviewed under an abuse of discretion standard.  Johnston v. State, 863 So. 2d 271, 278 (Fla. 2003).  That discretion, however, is limited by the rules of evidence.  Id., at 278.  Hearsay is generally inadmissible unless there is a recognized exception.  Section 90.803(1) provides an exception to the hearsay rule for a "spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness."  Similarly, section 90.803(2) allows for the admission of a “statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."  A trial court must evaluate the evidence and surrounding circumstances to determine whether a statement constitutes an excited utterance or spontaneous statement.

            Although the trial court admitted the testimony without indicating on which evidentiary basis, the challenged statements qualify as an excited utterance or spontaneous statement.  To qualify as an excited utterance, the statement must be made (1) about an event startling enough to cause nervous excitement; (2) without time to contrive or misrepresent; and (3) while the declarant was under the stress or excitement caused by the event.  Henyard v. State, 689 So. 2d 239, 251 (Fla. 1996). If the statement happens while the exciting or stressful event is happening, courts have little difficulty finding that the excitement or stress prompted the statement. State v. Jano, 524 So. 2d 660, 662 (Fla. 1988) (quoting Edward W. Cleary, McCormick on Evidence § 297 at 856 (3d ed. 1984)). "While an excited utterance need not be contemporaneous to the event, it must be made while the declarant is under the stress of the startling event and without time for reflection." Hutchinson v. State, 882 So. 2d 943, 951 (Fla. 2004); see also Rogers v. State, 660 So. 2d 237, 240 (Fla. 1995).  Here, the son’s comment was a direct reaction to Appellant’s actions.  Appellant ranting and yelling was a sufficiently startling event to a young boy to meet the requirements of section 90.803(2).  The son’s comments were made while trying to leave the stressful event without any time to contrive or misrepresent.  We conclude that the statements clearly met the criteria for an excited utterance under section 90.803(2).

            The statement would have also been admissible under the spontaneous statement exception contained in section 90.803(1).  A spontaneous statement describes or explains an event or condition while the declarant was perceiving it, or immediately thereafter.  The statement must, however, be made under circumstances that indicate its trustworthiness.  The son’s comments about being in fear from Appellant’s behavior were made during the event and explained what was happening at that moment.  Since the spontaneous statements were made during the event, the son did not have time to contrive or misrepresent, which is indicative of its trustworthiness.  Therefore, the statements could have also been admissible under the spontaneous statement exception.       

            Even if the comment were improperly admitted, however, it would not require reversal.  In his testimony, Mr. Smith was merely explaining why he and his son were trying to get away quickly from Appellant.  It was apparent that the son was scared even without Mr. Smith’s comment.  And while it may not have been perfect, it was not a feature of the trial and did not contribute to the judgment.  Therefore, any error would have been harmless. 

           

ISSUE III

            Appellant argues that the trial court erred in denying his motion for judgment of acquittal and challenges the sufficiency of the evidence for the remaining charges.  In reviewing the denial of a motion for judgment of acquittal, an appellate court must apply a de novo standard of review and shall not reverse a conviction where it is supported by competent, substantial evidence. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).  After viewing the evidence in the light most favorable to the State, if 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.  Simmons v. State, 934 So. 2d 1100, 1111 (Fla. 2006). This court finds that the jury had been presented with sufficient evidence to convict him of battery and resisting an officer without violence. 

            As to the battery conviction, the State presented competent, substantial evidence to support the charge.  Mr. Smith testified that while seated in his car, he rolled down the window and Appellant struck him in the mouth, busting his lip and cracking his tooth.  Deputy Roque observed the injuries and took photographs, which were entered into evidence.  Deputy Crawford further testified that he noticed bruising, redness and slight bleeding in Mr. Smith’s mouth.  Considering the evidence in the light most favorable to the State, the jury could have found Appellant guilty of all the elements of battery. 

            The State also presented a prima facie case to support the resisting arrest without violence charge.  Deputy Roque testified that he told Appellant he was under arrest.  Appellant responded by backing away from the deputy.  After Deputy Roque made contact with Appellant’s arm, Appellant attempted to pull away and run.  Appellant and Deputy Roque went to the ground where Appellant continued to struggle by pushing himself off the ground.  Deputy Crawford further testified that after being notified of the arrest, Appellant retreated and attempted to pull away from Deputy Roque.  Appellant pulled his right arm loose so that he could not be handcuffed.  This evidence was sufficient to sustain the conviction for resisting arrest without violence.  The trial court properly denied Appellant’s motion for judgment of acquittal.  This argument also lacks merit. 

            Therefore, it is

ORDERED that Appellant’s judgment and sentences are hereby AFFIRMED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 2nd day of November 2010.

 

            Original order entered on November 2, 2010 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.