Florida Criminal Law Opinions

JODY BRUMIT, Petitioner, v. STATE OF FLORIDA, Respondent.

No. 4D06-4999

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

December 31, 2007, Decided

NOTICE:

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY: [*1]

Petition for writ of habeas corpus to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Paul L. Backman and Ana I. Gardiner, Judges; L.T. Case No. 00-12574 CF10A.

COUNSEL: Jason T. Forman of Law Offices of Jason T. Foreman, P.A., Fort Lauderdale, for petitioner.

Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for respondent.

JUDGES: GUNTHER, POLEN and GROSS, JJ., concur.

OPINION

PER CURIAM.

Jody Brumit (Defendant) appealed an order summarily denying her motion to vacate sentence, filed pursuant to rule 3.800(a) and/or rule 3.850, Florida Rules of Criminal Procedure, and the order denying her motion for rehearing. Her motion actually challenged her conviction, rather than her sentence. Although she was out of time to appeal her conviction or to file a timely rule 3.850 motion, her ground was that she should be treated the same as her similarly situated co-defendant. This court redesignated the case as a petition for writ of habeas corpus, treated her initial brief as the petition, and issued an order to show cause. We now grant the petition.

Defendant was charged, along with co-defendant Ronald Festa (Festa), with one count [*2] of aggravated child abuse in violation of section 827.03(2)(b), alleged to have occurred on June 18, 2000. At their jury trial, neither side asked to have the jury instructed on any lesser included offenses, and the jury was instructed to find the defendants either guilty of aggravated child abuse as charged, or not guilty. Both were found guilty as charged.

This court reversed Defendant’s direct appeal, finding the trial court erred in denying her motion for judgment of acquittal because there was insufficient evidence as a matter of law to support her conviction for aggravated child abuse. It directed the trial court on remand to enter judgment for child abuse under section 827.03(1). Brumit v. State, 843 So.2d 978 (Fla. 4th DCA 2003). On June 13, 2003, the trial court vacated the prior judgment and sentence, and resentenced Defendant to four years of probation for the offense of child abuse. No direct appeal was taken from the new conviction and sentence, and Defendant’s probation was terminated by order dated December 14, 2005.

Festa raised the same issue on direct appeal, as well as whether the trial court’s error–in precluding him from discovering the victim’s medical and mental [*3] health records and introducing testimony about the victim’s propensity for violence–prevented him from confronting the victim and presenting his only defense. This court found Festa’s appeal meritorious on both points. It reversed and remanded for a new trial because of the discovery error, but it held that he could be retried for no more than child abuse because, as this court already had found in Defendant’s appeal, the evidence was insufficient for the charge of aggravated child abuse. Festa v. State, 901 So.2d 1026 (Fla. 4th DCA 2005) (Festa I).

On remand, the state charged Festa with child abuse and he moved to dismiss, explaining that the permissive lesser offense of child abuse was not submitted to the jury at his trial, because neither he nor the state requested instruction on a lesser included offense; he had elected the “all or nothing” strategy in hopes of an acquittal. In light of the fact that the jury was not instructed on the lesser included offense of child abuse, he argued that the state was now precluded from trying him for that related offense pursuant to Florida Rule of Criminal Procedure 3.151. The trial court denied the motion to dismiss, Festa filed a petition [*4] for writ of prohibition in this court, and this court granted the petition, holding that, because the jury was not instructed on the lesser included offense of simple child abuse at the original trial, retrying him for simple child abuse would violate his right to be protected from double jeopardy. Festa v. State, 927 So.2d 1049 (Fla. 4th DCA 2006) (Festa II).

In the opinion granting the petition, this court addressed Defendant’s case in a footnote that reads as follows:

On the co-defendant’s appeal, another panel held that the evidence was not sufficient to support the charge and reversed. Brumit v. State, 843 So.2d 978 (Fla. 4th DCA 2003). Unlike the present case, however, that panel directed the trial court to enter judgment on the lesser included offense of child abuse, relying on a statute. See § 924.34, Fla. Stat. (2005) (”When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser [*5] degree of the offense or for the lesser included offense.”). In Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004), we held under similar circumstances that section 924.34 is no longer valid when a factual issue critical to the lesser included offense was not itself submitted to the jury at trial. Because we have no way of knowing from the record in this case whether the co-defendant also waived all instruction on lesser included offenses, we express no opinion as to whether, because of our disposition in this case, the outcome in the co-defendant’s case should be changed.Id. at 1052 n.5 (emphasis added).

Based on the emphasized language above, Defendant sought collateral relief in her own case, and this case originated as an appeal from the trial court’s denial of that relief. She argues that the “manifest injustice” doctrine should overcome the law of the case presented by this court’s prior opinion in her direct appeal, Zolache v. State, 687 So.2d 298 (Fla. 4th DCA 1997); Line v. State, 722 So.2d 853 (Fla. 4th DCA 1998); Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004), aff’d, 967 So.2d 835 (Fla. 2007); Young v. State, 939 So.2d 263 (Fla. 4th DCA 2006), and she asserts entitlement [*6] to the same relief provided to her co-defendant, Festa, Laster v. State, 739 So.2d 150 (Fla. 1st DCA 1999) (holding that defendant was entitled to same relief on double jeopardy claim as that obtained by co-defendant who was jointly tried with defendant, though before a different jury).

Habeas corpus filed in the appellate court is the proper method for seeking relief when co-defendants’ appeals on the same issue are resolved differently. See, e.g., Raulerson v. State, 724 So.2d 641 (Fla. 4th DCA 1999); Romero v. State, 637 So.2d 7 (Fla. 4th DCA 1994); Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005), disagreed with on other grounds by Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006), rev. granted, 956 So.2d 455 (Fla. 2007).

The state concedes that the manifest injustice doctrine may apply to Defendant, who is similarly situated to Festa; its only argument to the contrary arises in the event the supreme court were to uphold the application of section 924.34, Florida Statutes.

Section 924.34 provides as follows:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree [*7] of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

While this case was pending, the supreme court issued an opinion affirming this court’s opinion in Sigler. Sigler arose on direct appeal from a conviction for a lesser offense, entered in accordance with this court’s mandate from a prior appeal. There, this court considered, as a matter of grace, defendant’s argument that his conviction for third-degree felony murder as a lesser-included offense of second-degree murder was illegal, despite the contention that this court’s prior conclusion that the conviction was proper was the law of the case. The allegation of an illegal conviction was an exceptional circumstance warranting relaxation of the law of the case doctrine. 881 So.2d at 17. In State v. Sigler, 967 So.2d 835 (Fla. 2007), the supreme court affirmed, holding that section 924.34, Florida Statutes, is unconstitutional to the extent it can be read to allow the appellate court to direct entry of judgment for a lesser included offense if not [*8] all the elements of the lesser have been found by a jury beyond a reasonable doubt.

That is the case here. Child abuse n1 is a permissive, category 2, lesser included offense of aggravated child abuse. n2 Festa II, 927 So.2d at 1050 (citing Fla. Std. Jury Instr. (Crim.) 16.1). By definition, a permissive lesser included offense contains at least one statutory element that is not included in the greater offense. Carrin v. State, 875 So.2d 719, 722 (Fla. 1st DCA 2004) (citing Nurse v. State, 658 So.2d 1074, 1077 (Fla. 3d DCA 1995)). The previous jury determination that Defendant was guilty of aggravated child abuse, i.e., that she “maliciously punished” the child, cannot be deemed to include a jury finding that she was guilty of every element of the permissive lesser included offense of child abuse. State v. Sigler, 967 So.2d at 839 (citing Sigler v. State, 881 So.2d 14, 20 (Fla. 4th DCA 2004) (citing Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004))).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1

The jury instruction for child abuse under section 827.03(1), Florida Statutes (1999), is as follows:

To prove the crime of Child Abuse, the State must prove the following two elements beyond a reasonable [*9] doubt:

1. (Defendant)

Give as applicable

a. intentionally inflicted physical or mental injury upon (victim)

b. committed an intentional act that could reasonably be expected to result in physical or mental injury to (victim)

c. actively encouraged another person to commit an act that resulted in or could reasonably have been expected to result in physical or mental injury to (victim).

2. (Victim) was under the age of 18 years.Fla. Std. Jury Instr. (Crim.) 16.3.2

The jury instruction for aggravated child abuse under section 827.03(2), Florida Statutes (1999), is as follows:

To prove the crime of aggravated child abuse, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant)

Give as applicable

a. committed aggravated battery upon (victim)

b. willfully tortured (victim)

c. maliciously punished (victim)

d. willfully and unlawfully caged (victim)

e. knowingly or willfully committed child abuse upon (victim) and in so doing caused great bodily harm, permanent disability, or permanent disfigurement.

2. (Victim) was under the age of 18 years.Fla. Std. Jury Instr. (Crim.) 16.1.

In the instant case, the jury was asked to find Defendant (and Festa) guilty of aggravated child [*10] abuse only if it found they maliciously punished the child.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Accordingly, we grant the petition and direct the trial court to vacate Defendant’s conviction.

GUNTHER, POLEN and GROSS, JJ., concur.

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ZERRON MCDANIEL, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-3942

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 31, 2007, Opinion Filed

NOTICE:

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY: [*1]

An appeal from the Circuit Court for Madison County. Frederick L. Koberlein, Judge.

COUNSEL: Nancy Daniels, Public Defender, Archie F. Gardner, Jr., Assistant Public Defender, and Joel Arnold, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

JUDGES: KAHN, PADOVANO, and HAWKES, JJ., CONCUR.

OPINION

PER CURIAM.

The defendant appeals his convictions for possession of cocaine, possession of a concealed weapon and possession of less than twenty grams of marijuana. We find no error except that the order placing the defendant on probation incorrectly states that he entered a plea of guilty to the charges, when in fact he was convicted by a jury. This error was preserved for review by a timely post-sentencing motion under rule 3.800(b) and brought to this court’s attention by appellate counsel in a brief filed under the procedure in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We remand the case for the entry of a new probation order reflecting that the defendant was convicted by a jury. In all other respects we affirm.

KAHN, PADOVANO, and HAWKES, JJ., CONCUR.

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BONNIE RENEE HUMPERT, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-2196

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 31, 2007, Opinion Filed

NOTICE:

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY: [*1]

An appeal from the Circuit Court for Okaloosa County. Thomas T. Remington, Judge.

COUNSEL: Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Donna A. Gerace and Giselle Lylen Rivera, Assistant Attorneys General, Tallahassee, for Appellee.

JUDGES: ALLEN, KAHN, and DAVIS, JJ., CONCUR.

OPINION

PER CURIAM.

The appellant challenges an order by which the trial court denied her motion to suppress. The appellant was convicted pursuant to a nolo contendere plea of possession of a controlled substance (cocaine), possession of less than 20 grams of marijuana, and possession of drug paraphernalia. When the deputy ordered the appellant out of her legally parked car, the consensual encounter became an investigatory stop. See Popple v. State, 626 So. 2d 185 (Fla. 1993). Based on the totality of the circumstances, there was no “well-founded, articulable suspicion of criminal activity” justifying an investigatory stop. See id. at 187; State v. Taylor, 826 So. 2d 399 (Fla. 3d DCA 2002); Miranda v. State, 816 So. 2d 132 (Fla. 4th DCA 2002). Thus, the trial court erred in denying the appellant’s motion to suppress the dispositive [*2] evidence which was seized as a result of the illegal search. See Dees v. State, 564 So. 2d 1166, 1169 (Fla. 1st DCA 1990). Accordingly, the appellant’s convictions are reversed and this case is remanded with directions that the appellant be discharged.

ALLEN, KAHN, and DAVIS, JJ., CONCUR.

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RICHARD LEE HUNTER, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-1637

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 31, 2007, Opinion Filed

NOTICE:

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY: [*1]

An appeal from the Circuit Court for Escambia County. Linda Nobles, Judge.

COUNSEL: Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Edward C. Hill, Jr., Special Counsel, Criminal Appeals, Tallahassee, for Appellee.

JUDGES: ALLEN, KAHN, and DAVIS, JJ., CONCUR.

OPINION

PER CURIAM.

Appellant, Richard Lee Hunter, challenges his conviction for first-degree murder and his sentence of life imprisonment. Appellant raises several claims of trial court error and argues that both individually and cumulatively these errors deprived him of a fair trial. Because we agree that three of Appellant’s claims have merit and that the trial court’s errors cannot be deemed harmless, we reverse. We affirm all other issues raised by Appellant without further discussion.

Appellant first argues that the trial court erred by denying his motion to suppress a taped statement he made to the police the day after his arrest. The evidence adduced at the suppression hearing, when viewed in a light most favorable to the State, revealed that Appellant informed law enforcement upon his arrest that he wanted an attorney. However, while Appellant was waiting [*2] to be arraigned, several correctional officers asked him to speak to the investigators in his case. Appellant repeatedly refused this request. At 4:30 a.m. the following day, another correctional officer asked him to speak to the investigators about his case, and he decided to speak to Officer Orr. Officer Orr’s testimony established that he received a call from a correctional officer around 5:00 a.m. that morning informing him that Appellant wanted to speak to him. Officer Orr confirmed that it was Appellant’s decision to speak with him before he started the interrogation. In his motion to suppress, Appellant argued that his statement should be suppressed because the evidence showed that he did not initiate contact with Officer Orr. The State argued that the court had to make a credibility determination between Appellant and Officer Orr. The trial court erroneously denied this motion.

Because Appellant invoked his right to counsel upon being arrested, the State had to establish that Appellant was the person that initiated contact with Officer Orr in order for his statement to be admissible at trial. Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983). The waiver of the right to counsel [*3] cannot be established by showing that Appellant responded to police-initiated contact. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). In this case, the State never rebutted Appellant’s testimony that he decided to speak to Officer Orr after being contacted by a correctional officer. Moreover, Officer Orr merely testified that he confirmed that it was Appellant’s decision to speak to him. This testimony does not address the issue of who initiated the contact that led Appellant to decide to speak to the officer. Thus, the trial court erred in denying Appellant’s motion to suppress.

Next, Appellant argues that the trial court erred in denying his motion for mistrial after an officer commented on his right to remain silent. During direct examination, Officer Orr testified that Appellant wanted an attorney after he was arrested. This comment is fairly susceptible of being interpreted by the jury as a comment on Appellant’s right to remain silent. State v. DiGuilio, 491 So. 2d 1129, 1131 (Fla. 1986). Comments on a defendant’s right to remain silent are high-risk errors because there is a substantial likelihood that they will vitiate the defendant’s right to a fair trial. Grier v. State, 934 So. 2d 653, 655 (Fla. 4th DCA 2006). [*4] The State argued that this comment was harmless error in light of Appellant’s statements that were admitted at trial, including Appellant’s own testimony. However, a defendant’s decision to testify at trial is separate from his decision to remain silent at the time of arrest, and a decision to testify at trial does not waive a defendant’s right to remain silent at the time of arrest. Robbins v. State, 891 So. 2d 1102, 1106 (Fla. 5th DCA 2004); Sharp v. State, 605 So. 2d 146, 148 (Fla. 1st DCA 1992). Thus, the trial court erred by denying Appellant’s motion for mistrial.

Finally, Appellant argues that the trial court erred in denying his motion for mistrial after the prosecutor questioned him about testimony he gave in a previous murder trial. In this case, Appellant was being tried for first-degree murder where the victim’s body was never recovered and decided to testify on his own behalf. During cross-examination, the prosecutor asked Appellant if he had previously testified in a trial twenty years ago where a man was charged with killing someone whose body was never found. The trial court sustained defense counsel’s objection to this question, denied Appellant’s motion for mistrial, [*5] and directed the jury to disregard the question. This question reflected poorly on Appellant’s character because it implied that he was directly involved in a similar crime. Appellant’s character and credibility were the main focus of this trial; thus, the trial court should have granted the motion for mistrial.

In light of the cumulative effect of these errors, we cannot say that they were harmless. “The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” DiGuilio, 491 So. 2d at 1135. “Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” Id. at 1138. In this case, the body of the victim was never located, and there was no physical evidence that a crime occurred. The case centered on the credibility of the trial witnesses, including Appellant. [*6] It is possible that all of the above errors had a negative effect on Appellant’s credibility with the jury. Because it cannot be said beyond a reasonable doubt that the combined effect of the above errors did not contribute to the jury’s verdict, we reverse Appellant’s conviction and remand for a new trial.

REVERSED and REMANDED.

ALLEN, KAHN, and DAVIS, JJ., CONCUR.

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LAYURA SELLERS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-4352

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

December 31, 2007, Opinion Filed

NOTICE:

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

PRIOR HISTORY: [*1]

An appeal from the Circuit Court for Jackson County. William L. Wright, Judge.

COUNSEL: Nancy A. Daniels, Public Defender, Tallahassee; and Gail E. Anderson, Special Assistant Public Defender, Greensboro, for Appellant.

Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES: THOMAS, J. VAN NORTWICK and LEWIS, JJ., CONCUR.

OPINION BY: THOMAS

OPINION

THOMAS, J.

Appellant contests her convictions for aggravated manslaughter, DUI manslaughter, vehicular homicide and child neglect, arguing that the trial court erred in admitting, over objection, blood test results that demonstrated her impairment. She also alleges that the admission of a beer can found at the scene of the automobile accident was unfairly prejudicial and should not have been allowed. After careful consideration, we disagree with Appellant’s arguments and affirm her sentence of 30 years’ imprisonment.

The United States Supreme Court has held that the Sixth Amendment right to confrontation allows the admission of “testimonial hearsay” only if the witness is unavailable and the accused has had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). When hearsay [*2] is non-testimonial, a defendant’s Sixth Amendment right to confront witnesses is not an issue. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224 (2006).

Reports that are produced in furtherance of a police investigation constitute testimonial hearsay. See Martin v. State, 936 So. 2d 1190, 1192 (Fla. 1st DCA 2006) (holding that an FDLE report was inadmissible testimonial hearsay because “[t]he testing memorialized in the report was occasioned solely by the arrest of appellant and was performed by a state law enforcement agency, and the report was offered by the State in furtherance of a criminal prosecution.”); Johnson v. State, 929 So. 2d 4 (Fla. 2d DCA 2005) (holding an FDLE-ordered drug test was testimonial); Belvin v. State, 922 So. 2d 1046 (Fla. 4th DCA 2006) (holding a breath test affidavit was testimonial because it was ordered by police for use at a later criminal trial); Shiver v. State, 900 So. 2d 615, 618 (Fla. 1st DCA 2005) (holding a breath test affidavit was testimonial because it “was made under circumstances which would lead an objective witness to reasonably believe the statements would be available for trial.”). However, drug or alcohol tests performed by a hospital in the [*3] usual course of business are admissible as business records. See Martin, 936 So. 2d at 1192 (citing Rivera v. State, 917 So. 2d 210, 211 (Fla. 5th DCA 2005)); Pflieger v. State, 952 So. 2d 1251, 1253-1254 (Fla. 4th DCA 2007) (finding annual inspection reports of breathalyzer machines were non-testimonial hearsay because these reports were not specifically prepared for trial; also specifically mentions that a “hospital record of a blood test” is for “accurate medical treatment” and is non-testimonial).

Here, we find that the blood test record admitted into evidence is not testimonial; therefore, there was no violation of Appellant’s right to confrontation. The blood test in question was performed only because Appellant’s emergency room doctor required the test in order to properly diagnose and treat Appellant’s injuries. It was not ordered by law enforcement and was not performed in the furtherance of a criminal prosecution. Thus, this case is factually distinct from Sobota v. State, 933 So. 2d 1277, 1278 (Fla. 2d DCA 2006) (finding the results of a blood test were testimonial hearsay because a police officer ordered the testing). Accordingly, we agree with the trial court that a Crawford [*4] violation did not take place.

As to Appellant’s claim that the beer can found at the scene of the accident should not have been admitted into evidence, we find no error. Further, even if there was error, it was certainly harmless. The benchmark of the harmless error test is “whether there is a reasonable possibility that the error affected the verdict.” Knowles v. State, 848 So. 2d 1055, 1059 (Fla. 2003) (quoting State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986)). The jury was presented with an abundance of evidence suggesting that Appellant was intoxicated on the evening of the accident, including the results of two separate blood tests, witness testimony, the investigator’s conclusions that intoxication was the cause of the accident, and Appellant’s own admission that she had consumed at least one beer and some cold medicine on the day of the accident. Accordingly, no reasonable possibility exists that the presentation of the beer can affected the verdict.

Appellant’s judgment is hereby AFFIRMED.

VAN NORTWICK and LEWIS, JJ., CONCUR.

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