Florida Criminal Law Opinions

RANDALL LAMORE, Appellant,
v.
STATE OF FLORIDA,. Appellee.

Case No. 5D07-2271.

District Court of Appeal of Florida, Fifth District.

Opinion filed May 30, 2008.

Appeal from the Circuit Court for Marion County, Brian Lambert, Judge.

W. Mark Burnette of Mark Burnette, P.A., Ocala, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

Randall G. Lamore timely appeals his convictions by jury verdict for driving under the influence of alcohol, (”DUI“),¹ and driving while driver’s license permanently revoked, (”DWLR”).² Lamore contends that his convictions and sentences should be reversed because: (1) “both the DUI and the DWLR statutes under which [he] was convicted violate the due process clauses of both the United States and Florida

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Constitutions”; (2) the evidence was legally insufficient to sustain a conviction for DWLR as the State failed to prove that he was on a “highway”; (3) the State presented speculative and unfairly prejudicial testimony through cross-examination of the defense witness, Gene Biel, that was irreparably harmful to him; and (4) the State made an unfairly prejudicial and legally erroneous argument to the jury in closing that was irreparably harmful to him. As none of these arguments were preserved for appellate review, we affirm.³

On the evening of October 5, 2006, Gene Biel, Lamore’s neighbor, brought his car to Lamore, an automobile mechanic, for repair at Lamore’s shop. Biel expected that the work on his car would be completed that evening. As soon as he approached Lamore, however, he immediately noticed that Lamore had been drinking. Lamore continued drinking and became more intoxicated as the evening progressed. When it became clear that he would not be able to complete the repairs that evening, Lamore offered to drive Biel home in a car that, according to Lamore, belonged to his wife. Biel refused, offering that there was no way he would have even gotten into a bumper car with Lamore given his state of intoxication. Thereafter, Biel agreed to drive Lamore and himself home in the wife’s car. In route, however, Lamore became very belligerent, demanding that Biel stop at every convenience store they drove past, so that he could buy more beer. When Biel repeatedly refused, Lamore became physically and verbally abusive. After Lamore slapped Biel, and then struck him harder in the head, Biel pulled over at a visitor’s center off of County Road 315, threw the car keys at Lamore, got out

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of the car and proceeded to walk home. Lamore also got out of the car and stumbled after Biel. At some point, he returned to his car.

Approximately five hours later, at around 1:00 a.m., Deputy Joshua Brown noticed a white car with its interior lights on pulled off the side of County Road 315 near a visitor’s center that was closed. Upon investigation, Deputy Brown found Lamore seated in the driver’s seat with his feet on the driver’s side floorboard and his body slumped over onto the passenger side seat. Deputy Brown noticed that the car key was in the ignition and that there was vomit on the ground at the driver’s side door. He could also distinctly smell the presence of alcohol through the open driver’s side window. It took Deputy Brown several attempts to awaken Lamore, at which point he sat straight up (apparently in answer to the officer’s question about the time of morning), cranked on the engine, looked at the car clock, told the officer it was 1:10 a.m., and then turned off the car and promptly laid back down. Lamore appeared intoxicated so that his normal faculties were impaired. Accordingly, Deputy Brown ordered him from the car with the purpose of conducting field sobriety tests.

Lamore refused to perform any tests, denied that he had consumed any alcohol that night, and further denied that the vomit outside of the car was his, notwithstanding that Deputy Brown also observed vomit on the inside of the door. Deputy Brown then arrested Lamore and transported him to jail. During the drive there, Lamore was belligerent and verbally abusive towards Deputy Brown, telling the officer it was his fault and that he was ruining Lamore’s life. At the jail, Lamore refused to take any test for the presence of alcohol and was charged with a misdemeanor offense for his refusal. Lamore was also charged with DUI and DWLR. Significantly, Florida’s DUI and DWLR

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statutes not only apply to a person “driving,” but also to persons in “actual physical control” of a vehicle. §§ 316.193(1), 322.01(15) & 322.341, Fla. Stat. (2006); see also, e.g., Griffin v. State, 457 So. 2d 1070 (Fla. 2d DCA 1984); State, Dep’t of Highway Safety and Motor Vehicles v. Prue, 701 So. 2d 637 (Fla. 2d DCA 1997); Baltrus v. State, 571 So. 2d 75 (Fla. 4th DCA 1990); Fieselman v. State, 537 So. 2d 603 (Fla. 3d DCA 1988), approved, 566 So. 2d 768 (Fla. 1990).

At trial, the State argued that it did not need to prove Lamore had been driving, and that the jury should convict because the evidence showed beyond a reasonable doubt that Lamore was in “actual physical control” of the vehicle while impaired, and after his license had been permanently revoked. Lamore argued that he was not in “actual physical control” of his vehicle as defined by the DUI and DWLR statutes, because he was passed out, incapable of operating a car. The jury rejected that argument, and convicted Lamore as charged. This appeal ensued.

Lamore initially contends that the DUI and DWLR statutes are unconstitutionally vague in using the phrase “actual physical control” and violate substantive due process (again, as applied to a person in who is in “actual physical control” of a vehicle, but not driving), because they lack a mens rea requirement in that they do not specifically require an intent to drive. Lamore suggests that this court could render the statutes constitutional by holding that an intent to drive is a requirement of the statutes.

We agree with the State that Lamore’s constitutional challenges are not preserved for appellate review. A cons titutional challenge to the facial validity of a statute can be presented for the first time on appeal under the fundamental error exception. Trushin v. State, 425 So. 2d 1126 (Fla. 1982). However, a “constitutional

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application of a statute to a particular set of facts is another matter and must be raised at the trial level.” Id. at 1129-30; see also, Wright v. State, 920 So. 2d 21, 23 (Fla. 4th DCA), rev. denied, 915 So. 2d 1198 (Fla. 2005). In this case, it is undisputed that Lamore raised no constitutional objection during the prosecution below. On appeal, although Lamore attempts to label his argument as a “facial” challenge to the statute, his real argument is that the statute is unconstitutional as applied to a person, like Lamore, who is found asleep in his car with his torso laying across the front passenger’s seat.⁴ He also argues other factual scenarios involving a defendant in actual physical control of a vehicle, but not driving, that might present constitutional concerns. Because these “as applied” challenges were not raised below, they were not preserved. Id.

As for Lamore’s remaining contention that the DUI and DWLR statutes violate substantive due process because they lack a mens rea requirement, the State correctly points out that these statutes are typical general intent statutes, which present no facial constitutional concern. Reynolds v. State, 842 So. 2d 46, 51 (Fla. 2002) (”That the statute contains a requirement of a general intent to commit an act that is obviously reasonably related to the harm sought to be avoided, rather than a more specific intent, is a choice for the Legislature.”); see also, Wright, 920 So. 2d at 23-24 (the legislature has broad authority to determine intent requirements in defining crimes and courts must defer to the legislative determination on such matters as long as there is a rational basis

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for the legislative action).⁵ In other words, placing oneself in actual physical control of a motor vehicle is generally an intentional act, which can be proscribed without violating due process. Id. Again, to the extent that Lamore attempts to argue that some additional, specific intent requirement should be added to the statute to address a constitutional concern as applied to the facts of this case, no such argument was preserved for review.

Next, Lamore contends that the evidence at trial was legally insufficient to sustain a conviction for DWLR because the State failed to prove that he was on a “highway” when in actual physical control of his car. The State correctly points out that this argument was not preserved for appellate review, as the defense made no motion for judgment of acquittal challenging the sufficiency of the evidence. F.B. v. State, 852 So. 2d 226 (Fla. 2003).

As his third point on appeal, Lamore essentially contends that the State presented speculative and unfairly prejudicial testimony through its cross-examination of defense witness Gene Biel, that also impermissibly exceeded the scope of defense counsel’s direct examination of Biel. During Biel’s cross-examination, however, the defense only made one objection to a single question. Specifically, the prosecutor asked Biel if Lamore thought that he was in a condition to drive. Defense counsel objected that the question called for speculation, and the prosecutor clarified that he

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was only asking Beil to relate what Lamore actually said. After this clarification, defense counsel did not pursue the original objection, and the defense made no further objections during the prosecution’s entire questioning of Beil. Accordingly, none of the issues raised under this point were preserved for appeal. See, e.g., Graves v. State, 548 So. 2d 801, 802 (Fla. 1st DCA 1989).

Finally, Lamore argues that the State made an unfairly prejudicial and legally erroneous argument to the jury in closing that was irreparably harmful to him. In making this argument, Lamore concedes that no objection was raised below. We have carefully reviewed the State’s entire closing argument, and find nothing approaching fundamental error in any of the prosecutor’s comments. See, e.g., Servis v. State, 855 So. 2d 1190, 1193 (Fla. 5th DCA 2003) (”Fundamental error in closing arguments occurs when the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.”) (quoting Silva v. Nightingale, 619 So. 2d 4, 5 (Fla. 5th DCA 1993)).

Accordingly, we affirm Lamore’s convictions and sentences.

GRIFFIN and MONACO, JJ., concur.

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Notes:

1. § 316.193 (2)(b)3. Fla. Stat. (2006).

2. § 322.341, Fla. Stat. (2006).

3. We note that Lamore’s current counsel, who has done an exceptionally thorough and professional job on appeal, did not represent him below.

4. We also note that other jurisdictions addressing the issue have consistently held that the phrase “actual physical control” is not unconstitutionally vague in similar contexts. See, e.g., United States v. McFarland, 369 F. Supp. 2d 54, 61 (D. Me. 2005) (”[A] line of cases has rejected vagueness challenges to actual physical control statutes.”) (citations omitted); State v. Schwalk, 430 N.W. 2d 317, 319 (N.D. 1988) (”Our research, however, reveals a line of cases from other jurisdictions consistently rejecting vagueness challenges to actual physical control statutes.”) (citations omitted).

5. Clearly, there is a legitimate governmental interest in addressing the drunk driving problem by making it a crime to be in actual physical control of a vehicle while impaired — thereby allowing an intoxicated person to be apprehended before he “strikes;” deterring those who have been drinking from getting into their vehicles, except as passengers; and protecting the public from the danger of an impaired person who places himself behind the wheel and could at any time and with little difficulty start the car and drive away.

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KARL DENHART, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D07-13.

District Court of Appeal of Florida, Fifth District.

Opinion filed May 30, 2008

Appeal from the Circuit Court for Marion County, Hale R. Stancil, Judge.

James S. Purdy, Public Defender, and Anne

Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

PALMER, C.J.,

Karl Denhart (defendant) appeals his judgment and sentence which were entered by the trial court after a jury found him guilty of committing the crime of promoting a sexual performance by a child. Finding no harmful error, we affirm.

The defendant engaged in various types of sexual conduct with a seventeen-year-old female, and was involved in photographing those activities and then distributing the photographs to others. Based on this conduct, he was convicted of committing the crime of promoting a sexual performance by a child. The defendant raises four points on appeal. First, he argues that the trial erred in denying his motion for entry of a judgment of acquittal. We disagree.

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The defendant was charged with violating section 827.071(3) of the Florida Statutes which reads:

827.071. Sexual performance by a child; penalties

(1) As used in this section, the following definitions shall apply:

* * *(b) “Performance” means any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.

(c) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do the same.

* * *(g) “Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

(h) “Sexual performance” means any performance or part thereof which includes sexual conduct by a child of less than 18 years of age.

* * *(3) A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age.

§827.071, Fla. Stat. (2005).

The defendant maintains that the State failed to present a prima facie case because the photographs at issue did not depict “sexual conduct” as proscribed by paragraph (1)(g) of the statute. Specifically, the defendant maintains that the plain

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meaning of the statute requires a showing that the child victim made contact with one of the designated sexual areas of another person and that the State failed to present any evidence to support a finding that the child victim in this case made contact with any of the designated sexual areas of the defendant. Rather, the defendant contends the evidence showed him making contact with the child’s breast.

The trial court properly concluded that the evidence presented by the State at trial was sufficient to establish a prima facia case under section 827.071(3) of the Florida Statutes. The statute, as written, defines sexual conduct broadly enough to cover contact by one party with the designated sexual areas of another party regardless of whether the child victim is making the contact or receiving the contact.¹

The defendant next argues that the trial court erred in agreeing to issue the special jury instruction requested by the State regarding the fact that the defendant’s ignorance of the victim’s age, the victim’s misrepresentation of her age, or the defendant’s bona fide belief of the victim’s age, is not a defense to the crime charged. We find no abuse of discretion.

“The giving or withholding by a trial court of a requested jury instruction is reviewed under an abuse of discretion standard of review.” Worley v. State, 848 So.2d 491 (Fla. 5th DCA 2003). Nicholson v. State, 748 So.2d 1092 (Fla. 4th DCA 2000),

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the defendant was convicted of promoting a sexual performance by a child in violation of section 827.071(3). The defendant argued that the trial court erred in denying his motion for judgment of acquittal because the State failed to prove that the defendant knew that the victim was a minor. He further argued that the court erred in refusing to instruct the jury that knowledge of the victim’s age was an element of the offense. The court rejected the arguments, stating:

We […] follow the holding Hicks v. State, 561 So. 2d 1284 (Fla. 2d DCA), rev. denied, 574 So. 2d 141 (Fla. 1990), that the defe ndant’s ignorance of the victim’s age is not a viable defense to the charge of use of a child in a sexual performance. Where the state has a compelling interest in protecting underage persons from being sexually abused or exploited, an exception is recogni zed to the general rule that every crime must include a specific intent, or a mens rea and, so, ignorance of the age of the victim, misrepresentation of age, or a defendant’s bona fide belief that such victim is over the specified age are not viable defenses.

Id. at 1093. Accord State v. Snyder, 807 So. 2d 117 (Fla. 3d DCA 2002). We adopt this holding as our own.

The defendant further argues that the trial court erred in permitting the State to admit into evidence photographs taken of the inside and outside of the defendant’s house, arguing that the photos were irrelevant and overly prejudicial since they depicted various articles of pornography hung on the walls of the defendant’s home. We again disagree. The defendant has failed to sustain his burden of proving that the trial court abused its discretion in concluding that the photographs of the defendant’s home were relevant to corroborate the testimony presented by the State’s witnesses concerning the

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fact that the crime took place inside the defendant’s home and to refute a claim that the photos of the child victim were altered by use of computer software.²

Lastly, the defendant argues that the trial court reversibly erred in adjudicating him to be a sexual predator because Florida’s sexual predator statute is unconstitutional as applied to him. We again disagree.

Section 775.21 of the Florida Statutes (2007) sets forth the provisions of Florida’s Sexual Predator Act. As it relates to the defendant, the Act provides as follows:

775.21. The Florida Sexual Predators Act

* * *(4) Sexual predator criteria.—

(a) For a current offense committed on or after October 1, 1993, upon conviction, an offender shall be designated as a “sexual predator” under subsection (5), and subject to registration under subsection (6) and community and public notification under subsection (7) if:

1. The felony is:

* * *b. Any felony violation, or any attempt thereof, of … s. 827.071 ….

§775.21(4), Fla. Stat. (2007). Thus, pursuant to the provisions of the Act, a person like the defendant who is convicted of violating one of the statute’s enumerated offenses must be designated as being a sexual predator. Butler v. State, 923 So. 2d 566, 567 (Fla. 4th DCA 2006).

AFFIRMED.

SAWAYA and COHEN, JJ., concur.

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Notes:

1. The photographs also depict the child victim touching her own exposed breast while posing for the camera. In light of our ruling, we need not reach the issue of whether such conduct constitutes “sexual conduct” as defined in the statute. We do note that in one case, Breeze v. State, 634 So.2d 689 (Fla. 1st DCA 1994), the court, in dicta, appears to reject the conclusion that the term “sexual conduct” includes a child victim’s actual physical contact with his or her own designated sexual areas, but Judge Ervin, in dissent, sets forth compelling arguments, based upon the language of the statute and the public policy in Florida to protect child victims from the dangers associated with underage sexual conduct, that the statute does proscribe such sexual contact by the child victim upon himself or herself.

2. We note that, even if the photographs had been improperly admitted, any such error would have been harmless in light of the other evidence presented in his case.

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LEVERETT DUANE SMITH, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D07-2078.

District Court of Appeal of Florida, Fifth District.

Opinion filed May 30, 2008

Appeal from the Circuit Court for Orange County, Charles N. Prather, Judge.

James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

The issue on appeal is whether the trial court abused its discretion in denying the appellant’s motion for continuance. We find it did not and affirm.

Appellant, Leverett Smith, was charged with DUI manslaughter, vehicular homicide, and driving while license suspended causing serious bodily injury or death, stemming from an accident that occurred on August 10, 2003. Charges were formally

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filed on May 4, 2004, and an arrest made in early July, 2004. Trial was originally set for October 11, 2004. Over nine continuances later, the case was set for trial on a special docket beginning May 14, 2007 — over three years since Appellant’s arrest and almost four years since the accident.¹ The Friday before trial, Appellant’s counsel argued yet another motion to continue. The basis for this latest motion was that the defense’s accident reconstruction expert was unavailable due to his daughter’s college graduation. Noting that the case was “ancient”, the trial court² denied the continuance, but gave Appellant the option of calling his expert at any time during the course of the trial to accommodate the family obligation. Notwithstanding, he did not call his expert at trial.

To obtain a continuance based on the unavailability of a witness, the movant must show prior due diligence in obtaining the witness’ presence; the witness would offer substantially favorable testimony; the witness was available and willing to testify; and material prejudice if the continuance is denied. State v. Cook, 796 So. 2d 1247 (Fla. 5th DCA 2001).

In the case at bar, Appellant was not prejudiced by the denial of his motion to continue. Specifically, the absence of Appellant’s expert did not hamper his ability to develop his defense of lack of causation. At trial, Appellant argued that he did not cause the accident because a vehicle U-turned in front of his vehicle, causing him to

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swerve, lose control, and crash.³ However, the existence of a U-turning car was not in dispute. In fact, that driver testified at trial. Furthermore, a number of witnesses testified to the high speed and reckless nature of the Appellant’s driving, as well as to his impairment. Given the evidence, it is apparent that the jury rejected Appellant’s causation defense.

The lack of prejudice notwithstanding, Appellant also failed to proffer the expert’s testimony at the hearing on the motion for continuance or at trial. Without such a proffer, there was no way to determine whether the expert would offer substantially favorable testimony, even assuming that the expert had relevant information to offer. Consequently, Appellant’s motion for continuance was also properly denied on this basis. See Sainte v. State, 864 So. 2d 506, 506 (Fla. 4th DCA 2004).

The decision to grant or deny a continuance is within the sound discretion of the trial judge. Hernandez-Alberto v. State, 889 So. 2d 721, 730 (Fla. 2004). Defense counsel had four weeks’ notice of the trial date. No effort was made to perpetuate the testimony, even assuming that the witness communicated the conflict in a timely manner to defense counsel. Appellant has not demonstrated any abuse of the court’s discretion, and we therefore AFFIRM.

PLEUS and EVANDER, JJ., concur.

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Notes:

1. Towards the end of the case, motions for continuance ceased being filed. Instead, status conferences were set, and the case rolled from one docket to the next. Appellant requested most, but not all, of the continuances.

2. The judge who tried the case was not the one who had been handling the case over its long and tortured history, which included a period of time when Appellant failed to appear for trial and was on capias status.

3. The decedent was a passenger in Appellant’s vehicle.

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VICTORIA McNEIL, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D06-4123.

District Court of Appeal of Florida, Second District.

Opinion filed May 30, 2008.

Appeal from the Circuit Court for Manatee County, Edward Nicholas and Diana Moreland, Judges.

James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Chief Judge.

Victoria McNeil pleaded no contest to possession of cocaine, reserving her right to appeal the denial of a dispositive motion to suppress. We conclude that the motion should have been granted. Therefore, we reverse McNeil’s conviction, rendering moot the sentencing issue also raised on appeal.

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McNeil was a passenger in a stolen car that was stopped by the Manatee County Sheriff’s Office. The car’s driver and one passenger fled; McNeil and two other occupants stayed behind. A deputy patted McNeil down and discovered cocaine in her groin area. At the suppression hearing, the deputy testified that she did not ask for consent to search McNeil. Nor did the deputy assert that she believed McNeil to be armed and dangerous. Rather, she testified to a general concern for officer safety because “there are a lot of weapons out on the streets.”

Standing alone, a valid stop does not give officers authority to search an individual for weapons. D.L.J. v. State, 932 So. 2d 1133, 1135 (Fla. 2d DCA 2006). Instead, the officer must have a reasonable belief that the individual is armed and dangerous. Id.; Premo v. State, 610 So. 2d 72 (Fla. 2d DCA 1992); see also § 901.151, Fla. Stat. (2006). Routine patdown searches based on general concerns for officer safety are not constitutionally permitted. D.L.J., 932 So. 2d at 1135 (citing Hunt v. State, 700 So. 2d 94, 95 (Fla. 2d DCA 1997)). Here, the deputy did not have a reasonable belief that McNeil was armed and dangerous. Therefore, the patdown for weapons was not permissible, and the circuit court erred in denying the motion to suppress.

Reversed and remanded for McNeil’s discharge.

WHATLEY and DAVIS, JJ., Concur.

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

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D.G.B., A CHILD, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D07-1636.

District Court of Appeal of Florida, Fifth District.

Opinion filed May 30, 2008

Appeal from the Circuit Court for Orange County, Roger J. McDonald, Judge.

James S. Purdy, Public Defender, and

Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

D.G.B. [”Defendant”], a child, appeals his convictions for Carjacking with a Firearm, Aggravated Battery with a Firearm, Grand Theft of a Firearm, and Grand Theft Third Degree. Gary Edwards McAdams [”Victim”] sold firearms and firearm related products. On November 26, 2007, he was at the Central Florida Fairgrounds for a gun show. That night, he packed the items that he had brought for the show into a trailer, which he pulled behind his truck. After locking both the trailer and the truck, Victim went to the restroom. As he was exiting the restroom, Victim was accosted by three men.

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Two of the assailants had guns and pushed him back into the restroom, while the third waited near its entrance. The men then severely pistol-whipped Victim and took his keys and money. One of the men left to start up Victim’s truck. Another of the assailants then threatened to kill Victim if he moved or said anything.

The issue on appeal is whether the trial court erred in failing to grant Defendant’s motion for mistrial based on two discovery violations by the State. After examination of the record and considering various curative measures fashioned by the trial court, it is clear that a mistrial was not required in order to ensure that Defendant received a fair trial.

AFFIRMED.

MONACO and LAWSON, JJ., concur.

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