Florida Criminal Law Opinions

STEVEN K. OLIVER, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-2005

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

February 29, 2008, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Sumter County, William H. Hallman, III, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   PLEUS, J. GRIFFIN and COHEN, JJ., concur.

OPINION BY:   PLEUS

OPINION  

PLEUS, J.

Oliver appeals his convictions on six counts of sexual battery on a child by a person in familial or custodial authority and one count of lewd and lascivious molestation of a child. We affirm but write to address four of Oliver’s arguments on appeal.

Motion for Judgment of Acquittal

Oliver argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to present evidence that these crimes were committed while Oliver was in a position of familial or custodial authority. We disagree.

The de novo standard applies to reviewing the denial of a motion for judgment of acquittal. Harris v. State, 954 So. 2d 1260, 1261 (Fla. 5th DCA 2007). The terms “familial or custodial authority” are not defined in Chapter 794, but they are defined in the case law. Familial authority and custodial  [*2]  authority are not the same. Crocker v. State, 752 So. 2d 615 (Fla. 2d DCA 1999). In Pozek v. State, 803 So. 2d 768, 769 -70 (Fla. 5th DCA 2001), we adopted the following definitions:

In State v. Rawls, 649 So.2d 1350, 1353 (Fla.1994), the supreme court defined the concept of “familial relationship” in the context of the sexual battery of children. Although the court in that case addressed the concept for the sole purpose of determining whether similar fact evidence was admissible to corroborate the testimony of a minor victim of sexual battery, the definition is nonetheless helpful in deciding whether sufficient evidence of familial or custodial authority has been presented to uphold a conviction under section 794.011(8)(b). In Rawls, the court concluded that the determination of a “familial relationship” must be done on a case-by-case basis. Id. at 1353. The court explained:

Consanguinity and affinity are strong indicia of a familial relationship but are not necessary. Also, the defendant and victim need not reside in the same home. The relationship must be one in which there is a recognizable bond of trust with the defendant, similar to the bond that develops between a child and her  [*3]  grandfather, uncle, or guardian. Where an individual legitimately exercises parental-type authority over a child or maintains custody of a child on a regular basis, a familial relationship may exist for purposes of the admissibility of collateral crimes evidence . . . .

In the instant case, there was sufficient evidence to deny the motion for judgment of acquittal on this element. Oliver was charged with committing various sex acts upon twin teenage girls, D.P.E. and D.J.E. Their mother, Gail Ramsey, testified that she met Oliver when he was her sons’ soccer coach. Ramsey became friends with Oliver’s wife and the Ramseys started “hanging out” at the Olivers’ house on weekends. Their families became very close. The twins often went over to the Oliver house to babysit on weekends. The twins also went on vacation with Oliver. Mrs. Ramsey trusted Oliver as a father figure with her daughters because he showed them the affection a father would show a child. Oliver was also D.P.E.’s soccer coach.

D.P.E. testified that she met Oliver in 2003, when she was in sixth grade. Their families became close. She and her sister frequently stayed overnight at Oliver’s house. In the beginning, she regarded  [*4]  Oliver as “[a]lmost like a father figure” because he was always there, playing with them. D.P.E. trusted and confided in Oliver. In addition, Oliver was D.P.E.’s soccer coach in 2004 and 2005. D.P.E. testified that three incidents occurred between her and Oliver. All of them occurred at his house. One occurred in the living room, one somewhere inside his house, and one in the swimming pool.

D.J.E. testified that she met Oliver when her brothers started playing soccer. He was “like a father figure.” D.J.E. stayed overnight at Oliver’s house babysitting on a regular basis. She trusted him. She told him her father had died and he shared with her that his father had died when he was around her age. That connection made her feel close to him. D.J.E. testified to four incidents all occurring at Oliver’s house. Three occurred while she was alone with Oliver in his bedroom. D.J.E. specified that on the first occasion, Oliver locked the bedroom door. The other incident occurred while she and Oliver were alone in his swimming pool.

This evidence was sufficient for the jury to conclude that Oliver was in a position of familial or custodial authority. The girls looked up to Oliver as a father figure.  [*5]  They trusted and confided in him. Their own father was deceased and they were not close to their step-father. Thus, there was a recognizable bond of trust between Oliver and the girls similar to that of father and child.

In addition, the twins’ mother trusted Oliver enough to let them stay overnight at his home and go on vacation with him. Oliver was one of the girls’ soccer coaches. All of the incidents occurred at Oliver’s home at times when Oliver was alone with the girls or others were asleep. Thus, Oliver was in a position of custodial authority over the girls because they frequently stayed overnight with him and were alone with him at his house when the incidents occurred.

Admission of Expert Testimony

The State called Dr. Thomas Dikel, who was accepted, without objection, as an expert in child sexual abuse, child psychology and neuropsychology. He testified that although there was “no single post sexual abuse syndrome” and “no way to look at a child and say this child’s been sexually abused,” there were some typical behaviors. These included (1) the victim’s desire to act “hyper-normal” after being sexually abused; (2) denying sexual abuse at first; (3) delaying disclosure; (4)  [*6]  disclosing the facts in piecemeal fashion; and (5) the victim’s attempts to control their emotions.

Oliver argues that the trial court erred in admitting Dr. Dikel’s testimony, over objection, because it was improper profile evidence. He cites to Hadden v. State, 690 So. 2d 573 (Fla. 1997), which held that expert testimony regarding the child sexual abuse accommodation syndrome was not admissible because it had not been proven to be generally accepted in the scientific community, as required under Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

However, Hadden noted that the Frye standard “is not applicable to an expert’s pure opinion testimony which is based solely upon the expert’s training and experience.” Id. at 579-80. In this case, Dr. Dikel carefully couched his testimony solely in relation to his professional experience. Thus, it was pure opinion testimony not subject to Frye.

We also disagree with Oliver’s contention that Dr. Dikel’s testimony constituted improper vouching for the credibility of the victims. It is well-established that an expert may not directly testify as to the truthfulness of the victim in a child sexual abuse case. Tingle v. State, 536 So. 2d 202, 2005 (Fla. 1988).  [*7]  However, Dr. Dikel did not directly testify about the victims in this case. Instead, he offered observations from his experience regarding behaviors of child sex abuse victims. These were admissible to “properly aid a jury in assessing the veracity of a victim of child sexual abuse.” Id. They were also admissible to rebut defense attacks on the victims’ credibility. See Russ v. State, 934 So. 2d 527, 530-31 (Fla. 3d DCA 2006).

Admission of Oliver’s Prior Sexual Statements in the Presence of Children

Before trial, the State filed a motion in limine to admit Oliver’s prior statements regarding sexual activity. In one instance, Oliver allegedly told one of the girls on the soccer team he coached, “If your dad would get off or quit riding your momma, then maybe he’d be here on time.” The girl’s father later complained and Oliver was reprimanded by the soccer league. In another instance, Oliver told one of the victims that when he had sex with his girlfriend, her head would hit the headboard when she [had an orgasm] and that when he or his girlfriend Tina would [have an orgasm], they would knock the picture frame off the wall. The trial court ruled these statements were “highly inflammatory,”  [*8]  irrelevant, and therefore inadmissible.

At trial, Oliver testified on direct exam that he had coached in youth sports since he was eighteen years old, from Maryland to Florida. He was also asked about an incident of “sexual joking” that took place in front of children, in which Mrs. Ramsey put Oliver’s young child on her lap and prompted her to say something. Oliver explained, “It was referring to my ex-wife at the time, Shannon, as being Mommy’s a Ho, Daddy’s a Ho, Daddy’s a Jackass, inappropriate language for any of the children.”

Based on these two statements, the prosecutor argued, at a bench conference just before Oliver’s cross-examination, that Oliver had “opened the door” to questioning about statements the court had previously ruled inadmissible because Oliver had tried to portray himself as a model soccer coach and not approving of sexual talk in front of children. Defense counsel conceded that the prosecutor could ask if Oliver had been reprimanded. The court ruled that Oliver had made coaching a credibility issue. As to the extent of further questioning, the following exchange occurred:

[PROSECUTOR]: Judge, I can ask him if he made that statement. To ask him if he’s ever been  [*9]  reprimanded means nothing.

THE COURT: You can ask him. It depends on how.

[PROSECUTOR]: Were you ever asked to apologize to one of the parents?

THE COURT: If he says no, then that takes you to the next level.On cross-examination, the following exchange occurred:

Q. Were you reprimanded by the administration of directors of the Lady Lake Soccer League for making an inappropriate sexual comment to [M.D.] on the field one day?

A. I was reprimanded for something.

Q. Do you know what that was for, sir?

A. Yes. You can be reprimanded for anything in the soccer league. Any allegations that might come up, anything that arises.

Q. Let me refresh your recollection. [M.D.] was waiting for her mother one day from the soccer field. She’s a little girl. And you told her if your dad would get off or quit riding your mama, then maybe he’d be here on time. You told that to that child, correct?

A. I don’t recollect that. No, sir.

. . . .

Q. Now, did there come a time as well sometime in 2005, late 2005, that you had a conversation with [D.J.E.] and I believe her brother, [M.E.], where you were talking about having sex with your girlfriend, Tina Turner, and making her come when her head would hit the headboard  [*10]  and bang the picture frame? Do you recall that?

A. That conversation never took place.

Q. Okay. And in that conversation, you indicated that when she would come and you would come, you would knock the picture frame off the wall. Do you remember saying that in front of [D.J.E. and M.E.]?

A. No. That conversation never took place.

Q. Okay. Would you consider that inappropriate language for children?

A. Yes. I would.

In its rebuttal case, the State called Oliver’s assistant soccer coach, Jim Gartland, who overheard Oliver tell one of his girl soccer players to “tell your mama to get off your papa and come down here and pick you up.” The girl’s father complained to the president of the soccer league, who confronted Oliver. At first, Oliver denied making the statement, but ultimately apologized to the father. The State also recalled one of the victims, who testified that Oliver told her, in the presence of other children, that “when he was banging [his girlfriend], the picture on the wall would fall off. And also, when he made her come, she would hit the door.”

The abuse of discretion standard applies to review of trial court decisions to admit evidence. Lowry v. State, 963 So. 2d 321, 325 (Fla. 5th DCA 2007).  [*11]  Oliver argues that the prosecutor violated a pretrial order in limine by questioning him and other witnesses about two sexually related comments he allegedly made.

However, we agree with the State that Oliver “opened the door” by portraying himself on direct examination as someone who had been a model soccer coach and someone who disapproved of talking about sex in front of children. Once the door was opened, and the trial court had revisited its prior ruling, Oliver failed to object to the prosecutor’s subsequent questioning. Even if Oliver had objected, we believe the prosecutor’s questions were proper. When Oliver was asked about being reprimanded for making sexually inappropriate comments, he attempted to mislead the jury by responding that he was reprimanded “for something.” Consequently, the State was entitled to follow up on this question to negate any false impression created by Oliver. See, e.g., Fotopoulos v. State, 608 So. 2d 784, 791 (Fla. 1992).

Prosecutor’s Improper Attack on Oliver’s Fiance

Oliver’s fiance, Sharon Dlugoborski, testified for the defense. During cross-examination, Dlugoborski acknowledged that at one point after Oliver went to jail, she moved in with a woman  [*12]  named Bebe Fox. At that point, the prosecutor asked Dlugoborski, “And you moved in with Bebe Fox because you slept in the same bed with her?” The trial court sustained Oliver’s objection to the question.

Later, during Oliver’s cross-examination, the prosecutor asked Oliver about his telephone conversations with Dlugoborski from jail:

Q. Did there come a time when you discussed with Sharon her bisexuality and sleeping in the same bed with Bebe Fox?

A. No. I did not discuss her –At that point, defense counsel objected and asked that the question be stricken. At a bench conference, defense counsel requested a mistrial based upon the prosecutor’s question regarding the sexual orientation of the witness. The court denied the motion, stating:

As to the issue of the motion concerning the bisexuality of any witnesses, it has been stopped at this point. And I believe by sustaining that objection, stopping and advising the State not to go any further with that, your client has not been unfairly prejudiced.

Oliver argues that the trial court erred in denying his motion for mistrial after the prosecutor improperly attempted to impugn the credibility of a key defense witness by accusing her of being  [*13]  a lesbian. A trial court’s ruling on a motion for mistrial is reviewed for abuse of discretion. Lowry, 963 So. 2d at 327. A motion for mistral should only be granted if the error is so prejudicial that it vitiates the entire trial. Id.

Here the prosecutor’s attempt to cast Dlugoborski as a lesbian was clearly improper. It was both irrelevant and unfairly prejudicial. However, we believe the trial judge was in the best position to judge the detrimental impact of this attack. We cannot say, based on the record before us, that the trial court abused its discretion in concluding that this error was not so prejudicial as to vitiate the entire trial.

Accordingly, we affirm Oliver’s convictions.

AFFIRMED.

GRIFFIN and COHEN, JJ., concur.

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VINCENT MAURICE ROBINSON, a/k/a PREACHER ROBINSON, Appellant, v. STATE OF FLORIDA, Appellee.

Case Nos. 2D06-1916, 2D06-1918 CONSOLIDATED

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 29, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Hillsborough County; William Fuente, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Sean K. Ahmed, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   SILBERMAN, Judge. CASANUEVA and SALCINES, JJ., Concur.

OPINION BY:   SILBERMAN

OPINION  

SILBERMAN, Judge.

In these consolidated appeals, Vincent Maurice Robinson challenges his judgment and sentence of time served for possession of cocaine in case number 2D06-1916 (circuit court case number 03-CF-021137). We affirm that judgment and sentence without discussion.

In case number 2D06-1918 (circuit court case number 05-CF-000140), Robinson challenges his judgment and sentence for (1) trafficking in illegal drugs (hydrocodone); (2) possession of a controlled substance (cocaine) with intent to sell or deliver within 1000 feet of a church; (3) possession of less than twenty grams of cannabis; and (4) possession of drug paraphernalia. We affirm the judgment and sentence on counts one and four without discussion. We reverse the judgment and sentence on counts two and three because the trial court should have granted the  [*2]  motion for judgment of acquittal on those counts when the State failed to prove the knowledge element for constructive possession.

In case number 2D06-1918, the evidence at trial showed that on January 3, 2005, officers of the QUAD squad, a Tampa Police Department narcotics unit, executed a search warrant at Robinson’s residence. Robinson lived there with his girlfriend and her two children. With respect to counts two and three, cocaine and marijuana were found in baggies in a ceramic house on the kitchen counter. The police did not attempt to lift fingerprints from any of the items.

Officer Petit searched the kitchen, and he testified that the bottom portion of the ceramic house was hollowed out and that when he looked underneath it he discovered the baggies containing the drugs. Officer Petit admitted on cross-examination that he did not see the baggies until he turned the house over. Officer Petit was asked “if a person walking in that room was to just look at that house, they’d have no idea that there was something concealed in it, correct?” He replied, “Unless they had knowledge it was there.”

In his motion for judgment of acquittal, Robinson argued that the State had failed to prove  [*3]  any actual possession of the contraband and that the State had failed to prove the knowledge element required for constructive possession. The trial court denied the motion, and the jury found Robinson guilty as charged. The State presented no evidence that Robinson had been in actual possession of the cocaine and marijuana found in the ceramic house. Thus, the issue is whether the State presented sufficient evidence to support a conviction on counts two and three based on constructive possession.

“In a constructive possession case, the State’s burden is to show beyond a reasonable doubt that the defendant knew of the presence of the contraband and that he had the ability to exercise dominion and control over it.” Wagner v. State, 950 So. 2d 511, 512 (Fla. 2d DCA 2007). When possession of the premises where the contraband is found is joint rather than exclusive, “knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership but must be established by independent proof.” Mitchell v. State, 958 So. 2d 496, 500 (Fla. 4th DCA) (citing Brown v. State, 428 So. 2d 250, 252 (Fla. 1983)), review denied, 969 So. 2d 1015 (Fla. 2007). Independent proof  [*4]  may include “evidence that the defendant had actual knowledge of the presence of the contraband or evidence of incriminating statements or circumstances, other than simple proximity to the contraband, from which the jury could infer the defendant’s knowledge.” Wagner, 950 So. 2d at 513.

When the premises are in joint possession, the State may prove knowledge by contraband found in plain view in the common areas of the premises. Mitchell, 958 So. 2d at 500 (citing Brown, 428 So. 2d at 252). In Mitchell, the court cautioned, however, that “[t]he mere fact that some contraband was in plain view does not permit the inference that the defendant knew of the entire amount of contraband found upon a search of a residence.” Id.

Here, Robinson was a joint occupant of the residence. The State failed to prove that the cocaine and marijuana were in plain view. Further, the State did not present independent proof establishing the required element that Robinson had knowledge of the cocaine and marijuana in the ceramic house on the kitchen counter. Because the State failed to prove actual or constructive possession, the trial court should have granted the motion for judgment of acquittal on the cocaine  [*5]  and marijuana charges. Accordingly, we reverse Robinson’s judgment and sentence on counts two and three in circuit court case number 05-CF-000140.

Affirmed in part and reversed in part.

CASANUEVA and SALCINES, JJ., Concur.

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CHRISTOPHER BELLAMY, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-594

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 29, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Hillsborough County; Ronald N. Ficarrotta, Judge.

COUNSEL:   Robert E. Heyman of Zimmet, Unice, Salzman & Heyman, P.A., Clearwater, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   KELLY, Judge. SALCINES and LaROSE, JJ., Concur.

OPINION BY:   KELLY

OPINION  

KELLY, Judge.

Christopher Bellamy appeals from his judgment and sentences for second-degree murder with a weapon for the death of David Anderson, attempted second-degree murder with a weapon for the stabbing of David Decker, and aggravated battery with a deadly weapon for the injury to David DeMedici. We find merit in his argument that the trial court erred in failing to grant his motion for judgment of acquittal as to the second-degree murder and attempted second-degree murder charges, and therefore we reverse.

Second-degree murder is “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” § 782.04(2), Fla. Stat. (2004).

“An act is one ‘imminently dangerous to another  [*2]  and evincing a depraved mind’ if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life.” Duckett v. State, 686 So. 2d 662, 663 (Fla. 2d DCA 1996) (quoting Fla. Std. Jury Inst. (Crim.) 66)). Bellamy moved for a judgment of acquittal arguing that the State had not proved that he acted out of ill will, hatred, spite, or evil intent. We agree.

The charges against Bellamy arose from what witnesses described as a “chaotic brawl,” “melee” or “affray” that occurred at the New World Brewery in Tampa. Bellamy was at the New World Brewery to hear his cousin’s band, Nuclear Beer. Witnesses described Nuclear Beer as a punk rock band that played its music at (ear splitting volume.” At some point during the show, the band invited bar patrons to sing “cover songs” along with them using an extra microphone connected to the band(s sound system. Those patrons included David Decker and Joseph Paez.

Decker, who was intoxicated, joined others in singing along  [*3]  with the band; however, he kept stepping on a cable running from the microphone to the sound board. At the request of the sound engineer, Bellamy approached Decker to ask him to move away from the microphone. It was too loud to talk so Bellamy tried to usher Decker away from the microphone by placing his hand on Decker’s elbow. Decker turned away and ignored him. However, Decker’s friend, Paez, took umbrage at this and approached Bellamy to find out what he was doing. Bellamy tried to explain; however, Paez was not receptive. Bellamy and Paez began to fight. At some point, Decker, whose attention had returned to the band, reeled around and joined Paez in the fight with Bellamy. Decker testified that he placed Bellamy in a “bear hug,” pushed him into the wall, felt a pain in his arm and when he looked down, he saw a knife being pulled out of his side.

The State’s other witnesses testified generally to having seen Bellamy engaged in an “affray” with a crowd of people who were either trying to break-up the fight between Paez and Bellamy or who were joining in the fight. The crowd backed Bellamy up against a brick wall. Witnesses indicated that at some point the crowd fell and pushed Bellamy  [*4]  to the ground. Some witnesses saw Bellamy with a knife before he fell; others did not. There is some indication that the crowd “surged” and fell when alerted to the presence of a knife. Bellamy testified that after he was pushed down, someone stepped or kneeled on his neck and that he was not able to breathe. He claimed that it was at this point that he took a knife from his rear pocket and used it to get people off him. Eventually, someone in the crowd disarmed Bellamy. Paez testified that David Anderson was pulled from the pile of people on top of Bellamy after Bellamy was disarmed. No witness saw Bellamy stab Anderson or even saw Anderson in the area where the fight took place, except for Paez, who saw Anderson at the bottom of the pile of people on top of Bellamy.

Bellamy did not know Decker or Anderson. Bellamy initially approached Decker at the request of the sound engineer, not because he had any problem with Decker. Nothing the State’s witnesses described when testifying about this brief interaction demonstrated any enmity between Bellamy and Decker. Decker was stabbed only after he joined Paez in the fight with Bellamy. All we know about Anderson is that he was stabbed at some  [*5]  point during the ensuing affray. By the accounts of all witnesses, it was a chaotic environment and the entire affray lasted only one or two minutes. We conclude that while the State’s evidence may have proved an “impulsive overreaction to an attack or injury,” it was insufficient to prove ill will, hatred, spite, or evil intent. See Light v. State, 841 So. 2d 623, 626 (Fla. 2d DCA 2003); see also Williams v. State, 674 So. 2d 177 (Fla. 2d DCA 1996); McDaniel v. State, 620 So. 2d 1308 (Fla. 4th DCA 1993). Accordingly, we reverse Bellamy’s convictions for second-degree murder and attempted second-degree murder and remand with directions to enter a judgment of conviction for manslaughter with a weapon and attempted manslaughter with a weapon and to resentence Bellamy accordingly. See Rayl v. State, 765 So. 2d 917 (Fla. 2d DCA 2000). In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded for resentencing.

SALCINES and LaROSE, JJ., Concur.

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RASHAUN ARTEA McCULLOUGH, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5611

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 29, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Pinellas County; Richard A. Luce, Judge.

COUNSEL:   James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   SILBERMAN, Judge. NORTHCUTT, C.J., and STRINGER, J., Concur.

OPINION BY:   SILBERMAN

OPINION  

SILBERMAN, Judge.

Rashaun McCullough appeals from judgments and sentences for three counts of robbery with a firearm that were entered following his plea agreement with the State. McCullough argues that the sentences violate the terms of his plea agreement. We affirm McCullough’s convictions but reverse his sentences and remand for resentencing in accordance with this opinion.

McCullough’s written plea agreement with the State provided for concurrent sentences of fifteen years’ imprisonment as a habitual violent felony offender with a minimum mandatory term of ten years and credit for time served on each charge of robbery. The written agreement did not condition McCullough’s plea or the sentences that were to be imposed in any way. At the plea hearing, McCullough’s counsel described the terms of the plea agreement, including  [*2]  the fifteen-year sentences, and stated that McCullough “is prepared to give the name of the individual that went into the hotels who was masked and participated in the robbery. And [he] realizes that if called upon by the State and/or the Court, he would have to give truthful testimony against that individual.” (Emphasis added.) The State did not object to or dispute defense counsel’s representations.

The trial court conducted a plea colloquy and found that the plea was freely and voluntarily given and that a factual basis existed for it. The court then asked McCullough to identify the masked participant in the robberies, and McCullough named Anthony Swanson. The court proceeded to question McCullough about the robberies, stating, “And, I’m only interested in truthful testimony, as you can well imagine. Whose idea was this whole thing?” McCullough responded, “Shaun Bryant.” When the trial court asked the State’s position, the prosecutor disagreed that it was Bryant’s idea. The trial court then stated:

Well, what I’m going to do is delay a sentence in this case and allow your client to meet with the detective and the assistant state attorney, Ms. Wardell, and, in effect, make a full and  [*3]  complete accounting of these three incidents. Again, I think that you need to understand I told your attorney this morning, that I would not accept a plea for anything less than twenty years minimum mandatory. And you have an opportunity to reduce that by five, by giving truthful testimony. And that’s the only condition that I’ve put on it. So I have to be satisfied and they have to be satisfied that, in effect, they’re receiving truthful testimony.

So, I’ll receive your plea, adjudicate you guilty. . .

At the sentencing hearing held nearly three months later, the prosecutor contended that McCullough had breached the plea agreement and should be sentenced to twenty years’ imprisonment for each robbery. The prosecutor pointed out that at the plea hearing, McCullough claimed that Shaun Bryant was the “mastermind” behind the robberies, which the prosecutor knew was not true. The prosecutor then explained what happened after the plea hearing, as follows:

We went over to the jail and he said he admitted, “Ms. Wardell, I’m sorry I said that. He wasn’t the mastermind. I was mad, I made that up.” He lost credibility at that point.

I proceeded to take his statement. He admitted his involvement  [*4]  in these charge [sic] offenses. However, what he didn’t know is that I had information that he was involved in other crimes that he didn’t mention, that he left out and could have come forward and fessed up. He didn’t. There’s nothing that he said to me that was helpful in any way.McCullough’s counsel responded that McCullough had agreed to give truthful testimony but the State did not want to use that information and “nobody can say it was or was not truthful.”

The trial court proceeded to impose sentences of twenty years’ imprisonment with minimum mandatory terms of fifteen years for each of the robberies. When McCullough stated, “I’m not taking 20 years,” the court responded that was part of the agreement. McCullough stated that he had “agreed to 15 years, 10 mandatory. I didn’t agree to 20 years.” The trial court told McCullough to “[h]ave your attorney file the appropriate motion.”

One week later, McCullough, through his counsel, filed a Motion to Withdraw Plea, asserting that his plea was based on the agreement to concurrent sentences of fifteen years’ imprisonment with ten years’ minimum mandatory. The motion stated that the trial court added a condition to the plea agreement  [*5]  that McCullough “could be sentenced to twenty years minimum mandatory, but that it could be reduced by five years by giving truthful testimony.” McCullough contended that the court’s sentences of twenty years’ imprisonment with fifteen years’ minimum mandatory were contrary to the plea agreement.

At the hearing on the motion to withdraw plea, the State conceded that as to the minimum mandatory portions of the sentences, the plea agreement called for ten years’ minimum mandatory instead of fifteen years’ minimum mandatory. The trial court amended the judgments and sentences by reducing the minimum mandatory portion to ten years. The parties also discussed the condition that McCullough would avoid the imposition of twenty-year sentences if he gave truthful testimony. The trial court reviewed the transcript of the plea hearing, noting that “it says that he realizes if called upon by the State he would give truthful testimony.” The court then stated that it had “made a finding, apparently, at [the] actual sentencing that [McCullough] hadn’t been truthful so he didn’t get the reduction.” The court added that the issue of whether McCullough got the reduction for giving truthful testimony  [*6]  would be addressed on appeal.

McCullough argues in this appeal that the trial court erred in finding that he violated the plea agreement by not being truthful and that the court should have imposed fifteen-year sentences. He states that he agreed to provide, and did provide, the name of the masked participant in the robberies. He adds that he agreed to testify truthfully against that person, Anthony Swanson, but that the State did not ask him to testify. He contends that the State did not establish that he violated any term of the plea agreement. The State responds that because McCullough made conflicting statements about whose idea it was to commit the robberies, he destroyed his own credibility and made worthless any testimony that he might give against Anthony Swanson, thereby violating the agreement.

In McCoy v. State, 599 So. 2d 645 (Fla. 1992), the Florida Supreme Court reviewed a sentence that the trial court imposed after finding that the defendant violated the terms of a plea agreement. The court stated that “when entering into a plea agreement, the State must make sure that the specific terms of the agreement are made a part of the plea agreement and the record.” Id. at 649.  [*7]  If the defendant’s noncompliance with the specific terms of the plea agreement is at issue, “the defendant must have a full opportunity to be heard at an evidentiary hearing.” Id. at 650. Further, “to vacate the plea and sentence, the court must find that there has been substantial noncompliance with the express plea agreement.” Id. n1

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In 1994, the Florida Supreme Court adopted amendments to Florida Rule of Criminal Procedure 3.170 that were “in accord with our decision in McCoy.” Amendments to Florida Rule of Criminal Procedure 3.170 & 3.700, 633 So. 2d 1056, 1056 (Fla. 1994).
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The trial court stated that McCullough had to provide a full and complete accounting of “these three incidents,” but nothing in the written agreement or expressed at the plea proceedings required McCullough to confess his involvement in other crimes. Although the State indicated that McCullough’s information was not “helpful,” the plea agreement did not require McCullough to provide some additional helpful, but unspecified, information to the State. The plea agreement required McCullough to identify the masked participant, which he did by identifying Swanson, and to testify truthfully against that individual “if  [*8]  called upon by the State and/or the Court.” (Emphasis added.) The State may have elected not to have McCullough testify because it felt that McCullough’s credibility was damaged, but it did not establish that McCullough refused to testify or that he testified falsely against Swanson.

Concerning McCullough’s statement at the plea hearing identifying Shaun Bryant as the mastermind, the prosecutor immediately expressed her disbelief. As a result, the trial judge directed McCullough to meet with the detective and the prosecutor and stated, “I have to be satisfied and they have to be satisfied that, in effect, they’re receiving truthful testimony.”

The State argues, as it did in the trial court, that because McCullough gave conflicting statements any trial testimony he might give would be worthless. The difficulty with this argument is that the court directed McCullough to meet with the prosecutor and to be truthful after the State disputed McCullough’s identification of Bryant as the mastermind. McCullough complied with the court’s direction by meeting with the prosecutor and truthfully acknowledging that Bryant was not the mastermind. n2

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The State has not asserted that at the meeting McCullough  [*9]  failed to identify the actual mastermind or otherwise did not give a full and complete accounting of the charged crimes.
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Based on the terms of the plea agreement, the State’s decision not to have McCullough testify at Swanson’s trial is not evidence that McCullough violated the plea agreement. In Spencer v. State, 623 So. 2d 1211 (Fla. 4th DCA 1993), the Fourth District addressed a similar situation. Spencer and the State entered into a plea agreement that required Spencer to “testify truthfully if required.” Id. at 1211. At sentencing, the State argued that Spencer violated the agreement when, in an interview given after the plea agreement had been reached, he directly contradicted an earlier statement that he had given to the State’s investigator. The court observed the following:

The mere fact that Spencer’s later statement contradicted his initial statement does not constitute a breach of an agreement merely to testify truthfully, without reference to any identified previous statement. As in McCoy, if the state failed to make it an express part of the agreement that he was expected to testify in accordance with his initial statement, the trial court was precluded from finding that  [*10]  he had breached the agreement actually reached.Id. at 1212.

Here, there is no evidence that McCullough did not give a full, truthful, and complete accounting of the three robberies when he met with the prosecutor after the plea hearing, as required by the trial court. Also, although McCullough agreed to testify truthfully if called upon to do so by the State and the trial court, the State later elected not to use his testimony at trial. Under these circumstances, and consistent with Spencer, we conclude that the State failed to establish that McCullough breached the terms of the plea agreement. Because the trial court sentenced McCullough to the twenty-year sentences based upon its erroneous conclusion that McCullough breached the plea agreement, we reverse the sentences.

Citing to Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), McCullough asks that we order specific performance of the plea agreement and that we direct the trial court to impose sentences of fifteen years’ imprisonment with ten years’ minimum mandatory. In response, the State cites to Rollman v. State, 887 So. 2d 1233 (Fla. 2004), and contends that if McCullough prevails in this appeal, he is not entitled to specific performance  [*11]  of the plea agreement. The State argues that he may either withdraw his plea or keep his current twenty-year sentences with ten years’ minimum mandatory.

Neither Santobello nor Rollman address the circumstances present in this case. In Santobello, the United States Supreme Court stated that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” 404 U.S. at 262; see also Hunt v. State, 613 So. 2d 893, 897 (Fla. 1992) (quoting Santobello, 404 U.S. at 262). The Supreme Court remanded the case for the state court to determine whether the circumstances required specific performance of the plea agreement or, alternatively, granting Santobello an opportunity to withdraw his plea. Santobello, 404 U.S. at 262-63. In his concurring opinion, Justice Douglas stated that the defendant’s preference should be given considerable, if not controlling, weight in determining the remedy. Id. at 267. However, Santobello, which concerned the breach of a plea agreement by the State, is not directly applicable here.

In contrast, Rollman states that “a trial court retains the  [*12]  authority to alter a prior plea arrangement up until the time sentence is imposed, so long as the trial court provides the defendant an opportunity to withdraw any plea that was entered in reliance on the promised sentence.” 887 So. 2d at 1235; see also Goins v. State, 672 So. 2d 30, 31 (Fla. 1996) (reiterating that a judge is not bound to honor a plea agreement for a specified sentence, even if the plea has been accepted, but if the judge imposes a greater sentence, the defendant is entitled to withdraw the plea).

Here, the trial court accepted the plea agreement reached by McCullough and the State with modification as to McCullough’s obligations and the sentences that he faced. McCullough performed under the agreement, including the conditions imposed by the trial court, and the State received the benefit of the plea agreement. At sentencing, the court did not reject the agreement or abandon its earlier acceptance of the agreement. Instead, it simply sentenced McCullough based upon its erroneous conclusion that McCullough had breached the agreement. Under these circumstances, McCullough is entitled to the sentences that the trial court stated would be imposed upon his fulfillment  [*13]  of the conditions of the plea agreement. Accordingly, we reverse McCullough’s sentences and remand for the trial court to impose fifteen-year sentences with ten-year minimum mandatory terms of imprisonment.

Reversed and remanded.

NORTHCUTT, C.J., and STRINGER, J., Concur.

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JEFFREY ALAN BUTTS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D07-776

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

February 29, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Hillsborough County; Emmett L. Battles, Judge.

COUNSEL:   James E. Felman and Katherine Earle Yanes, of Kynes, Markman & Felman, P.A., Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   DAVIS, Judge. NORTHCUTT, C.J., and WHATLEY, J., Concur.

OPINION BY:   DAVIS

OPINION  

DAVIS, Judge.

Jeffrey Alan Butts appeals his convictions for reckless driving and culpable negligence. Although he was originally charged with vehicular homicide and manslaughter while operating a motor vehicle, the jury returned convictions on the lesser included charges. He does not contest the sentence imposed on either of the two convictions. Because we conclude that admission of portions of the widow’s testimony was harmful, reversible error, we reverse and remand for a new trial on the charges of reckless driving and culpable negligence.

The charges resulted from a tragic motor vehicular accident that occurred as Butts was traveling north on Interstate 75 when he struck the rear of a motorcycle driven by Robert Seborowski. Seborowski suffered from skin abrasions and a laceration and was transported to the hospital. However, as a  [*2]  result of his hospitalization, it was discovered that Seborowski suffered from several other medical conditions of which he was not aware and for which he was not being treated. These conditions included hypertension, diabetes, and severe coronary heart disease. While hospitalized, Seborowski suffered serious cardiac complications and died eight days later as the result of a pulmonary thromboembolism, which is a blood clot, commonly from the leg, that breaks loose and travels to the lung, causing blockage of an artery.

After Seborowski’s death, the State filed an information charging Butts with vehicular homicide and manslaughter while operating a motor vehicle. According to the State’s theory, Butts caused the accident by recklessly driving at an excessive rate of speed, frequently changing lanes, and striking the victim’s motorcycle from the rear at a time when the motorcycle was traveling at a speed under the posted speed limit. This theory was based on the eyewitness testimony of four lay witnesses.

At trial, the State presented the testimony of the four lay witnesses, a traffic homicide investigator, and the victim’s wife. On appeal, Butts challenges the testimony of the investigator  [*3]  and Mrs. Seborowski.

The four lay eyewitnesses gave conflicting testimony regarding what actually happened at the time of and immediately preceding the accident. The State’s traffic homicide investigator testified that in her opinion this was a case of vehicular homicide, and the victim’s wife testified that Seborowski did not know of his other medical conditions, that she would only receive $ 50,000 as a settlement from the insurance company, and that Seborowski had been very active before the accident. She also became so emotional on the stand that the trial court found it necessary to call a temporary recess. Butts then presented the testimony of his accident reconstruction expert, who testified that based on his evaluation of the physical evidence, the State’s theory of the accident was in error.

Although there was no disagreement at trial regarding the fact that Butts did strike the motorcycle from behind, the jury was presented with a contested set of facts as to exactly how the motorcycle was struck and the nature of Butts’ driving at the time of the collision. Similarly, although the question of whether the accident was the cause of the victim’s death was not raised, the jury  [*4]  was advised as to the nature of the injuries the victim sustained in the accident, the status of his physical condition, and the cause of his death. The jury was also advised that the burden was on the State to prove each element of each offense and that an element of each of the charges against Butts was that the victim’s death was the result of Butts’ conduct.

The jury returned verdicts acquitting Butts on both of the felonies but finding him guilty of the misdemeanor lesser included charges for each count. It is these misdemeanor convictions that Butts now appeals.

Butts argues that the trial court erred in allowing the victim’s widow to testify over his objection. Butts attacks the relevancy of any of the widow’s testimony; however, he particularly objects to her statement at trial that she had settled with Butts’ insurance company for $ 50,000. Because we find this to be reversible error, we need not address Butts’ remaining challenges to the widow’s testimony.

When the widow testified at trial that the insurance company already had settled the case for $ 50,000, the clear implication was that someone else had investigated these facts and had determined that Butts was liable. See  [*5]  Keen v. State, 775 So. 2d 263, 274 (Fla. 2000) (”‘[T]he clear inference to be drawn from [Amabile’s] testimony’ was that the insurance industry with its resources had investigated the disappearance and discovered a murder . . . .” (second alteration in original)). However, Butts was unable to refute that implication because he could not cross-examine the widow as to the motivation of the insurance company in entering the settlement. Thus the jury was improperly led to believe that the insurance company had uncovered reliable evidence of Butts’ guilt. As such, this testimony was not merely irrelevant; it was prejudicial to Butts.

The State argues that even if admission of this testimony was error, it was harmless. We disagree. We cannot say beyond a reasonable doubt that the verdict would have been the same had the jury not been advised of this settlement. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). First, the jury was presented with conflicting testimony as to Butts’ driving immediately preceding the accident. The State’s eyewitnesses contradicted each other in several important respects. Their testimony was then rebutted by Butts’ expert, who opined that based on his evaluation  [*6]  of the damages and his calculations as an accident reconstructionist, Butts could not have been traveling at the speed attributed to him by some of the State’s witnesses. For a jury attempting to reconcile this conflict, the existence of evidence that the insurance company’s independent investigator already had determined that Butts was at fault to some degree could have been the crucial factor in the decision to return guilty verdicts on reckless driving and culpable negligence, both of which required proof of improper driving by Butts. Additionally, the emotional impact of a widow, after testifying as to the length and quality of her marriage to the victim, telling the jury that she received $ 50,000 less the attorney’s fee as her settlement and that “that was all there was to get” is unpredictable. For these reasons, we conclude that the error was not harmless, that the convictions must be reversed, and that the case must be remanded for a new trial. We need not address the remaining arguments regarding other portions of the widow’s testimony.

Although Butts also argues that the trial court erred in accepting the traffic homicide investigator as an expert in accident reconstruction  [*7]  and admitting her testimony that the proper charge was vehicular homicide, we need not address this issue. Because the jury acquitted Butts of vehicular homicide, the charges to be tried on remand will be limited to the misdemeanors of reckless driving and culpable negligence, making irrelevant the traffic investigator’s determination that vehicular homicide was the correct charge. n1 Moveover, since all of the widow’s testimony was admitted, as argued by the State, to address issues regarding the victim’s injuries and ultimate death, her testimony will be irrelevant on retrial because the victim’s death will not be at issue.

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The investigator testified that she made no calculations and applied no scientific principles in reaching her “conclusion” that the proper charge was vehicular homicide. At retrial, should the State again attempt to qualify her as an expert in accident reconstruction, the trial court would be required to determine that her opinion was in fact relevant to an issue susceptible of an expert’s testimony, i.e., an issue beyond the knowledge of the lay juror. If, in fact, her opinion is solely based on her review of the witness’ statements and her interview of witnesses,  [*8]  such would not qualify as an expert’s opinion.
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Reversed and remanded for retrial on the charges of reckless driving and culpable negligence.

NORTHCUTT, C.J., and WHATLEY, J., Concur.

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