author: Conner, J.

text:
    Robert WALEROWICZ, Defendant, v. Mandy Nicky ARMAND-HOSANG, Appellee.
    No. 4D17-1900
    District Court of Appeal of Florida, Fourth District.
    [May 23, 2018]
    Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, for appellant.
    Philip M. Gerson and Edward S. Schwartz of Gerson & Schwartz, P.A., Miami, for appellee.
   Conner, J.

The appellant, Robert Walerowicz ("Defendant"), appeals the final judgment for damages awarded by the jury in the personal injury action brought by the appellee, Mandy Nicky Armand-Hosang ("Plaintiff"). Defendant asserts eight separate grounds for reversing the final judgment entered below. The eight grounds revolve around three primary contentions: the trial court erroneously (1) allowed the jury to consider evidence of past medical expenses for which there was insufficient proof of the reasonableness and necessity; (2) allowed Plaintiff's treating physician to testify as an expert witness about causation and permanency in violation of a trial preparation order; and (3) used a procedure for jury selection which denied Defendant the right to intelligently use his peremptory challenges. We affirm the trial court's rulings on the jury selection issue without discussion. We also affirm the trial court's rulings regarding the sufficiency of the evidence of past medical expenses and admission of expert opinion testimony, and explain our reasoning.

Background

Plaintiff filed suit against Defendant seeking damages for bodily injuries she sustained as a result of an automobile accident. Prior to trial, Defendant admitted liability for the accident, but denied that the accident caused the Plaintiff's injuries. The case proceeded to a jury trial to resolve the issues of causation, permanency of the injuries, reasonableness and necessity of medical bills, and damages.

As discussed more fully below, at trial, Defendant objected to Plaintiff's treating physician, an orthopedic surgeon ("the Surgeon"), testifying as an expert on issues of causation and permanency. Additionally, at the close of Plaintiff's case in chief, Defendant unsuccessfully moved for a directed verdict on the issue of past medical expenses, contending there was no evidence of the reasonableness and necessity of the bills presented, other than the bills from the Surgeon. Defendant argued that the full amount of the bills by other providers should not have been submitted to the jury.

The jury determined that Defendant was the legal cause of permanent injury to Plaintiff and awarded damages for past medical expenses, past pain and suffering, and future pain and suffering.

After trial, Defendant filed a motion for new trial and for judgment in accordance with motion for directed verdict based on arguments that the trial court erred in allowing the Surgeon to testify as an undisclosed expert and by denying his motion for directed verdict. Defendant's post-trial motions were denied, whereupon Defendant gave notice of appeal.

Appellate Analysis

Reasonableness and Necessity of Past Medical Bills

Additional Background

At trial, the Surgeon testified extensively about Plaintiff's shoulder injury requiring surgery and his course of treatment. With regards to his medical bill, the Surgeon testified that the total bill for his practice group was $58,000, which included the surgery, office visits, x-rays, and therapy.

Plaintiff also testified and described the various treatments she underwent as a result of the accident. She testified that prior to her car accident, she had never injured her left shoulder. Because of the accident, she went to an urgent care facility the same day for pain and stiffness in the back of her neck and a numbing sensation radiating from her shoulder to her fingers. When the pain continued, approximately a month later, she went to the medical group. She testified she sought treatment at the medical group for several months, where she underwent different kinds of physical therapy, including massage, heat compressions, and ice compressions. Because her shoulder and arm were not getting better, she had an MRI performed, after which the doctors at the medical group recommended she undergo shoulder surgery. She testified that she then went to a doctor for a second opinion, and that doctor referred her to his partner, the Surgeon, who performed the surgery. She testified that she went to a separate medical provider for pre-surgery clearance where several tests were conducted. The Surgeon also testified to these tests. Finally, Plaintiff testified that she had more therapy after the surgery to improve mobility and strength, though she was still experiencing pain and her injury hindered her ability as a musician to fix and play instruments.

After referencing an exhibit containing her medical bills, Plaintiff's counsel asked her if she still owed all of the money on the medical bills, to which she testified, "Yes, I do." During a subsequent break in the trial, Plaintiff's medical records, including bills for past medical services, were admitted into evidence.

During Defendant's presentation of evidence, Defendant's medical expert disputed the reasonableness of the amounts charged for various procedures performed on Plaintiff.

Defendant moved for a directed verdict on the issue of the past medical bills, contending that Plaintiff failed to present sufficient evidence to prove the reasonableness and necessity of the past medical expenses, except for the treatment provided by the Surgeon. The trial court denied the motion.

Analysis

Defendant contends the trial court erred in denying his motion for a directed verdict and motion for judgment in accordance with a motion for directed verdict regarding past medical bills. The basis for both motions was that there was insufficient evidence of the reasonableness and necessity for past medical services rendered, other than the bills relating to the services of the Surgeon. In other words, Defendant contended below that the jury could only consider an award up to $58,000 for the past services of the Surgeon, and not consider an award for the services of other medical providers.

A trial court's ruling on a motion for directed verdict and a motion for judgment in accordance with a motion for directed verdict is reviewed de novo . Aragon v. Issa , 103 So.3d 887, 888 (Fla. 4th DCA 2012). In reviewing a trial court's ruling on a motion for directed verdict, "an appellate court must view the evidence, resolve all conflicts in the evidence, and construe every reasonable conclusion that may be drawn from the evidence in the light most favorable to the non-moving party." Id. "The standard of review of a trial court's evidentiary rulings is abuse of discretion." McDuffie v. State , 970 So.2d 312, 326 (Fla. 2007) (citing Fitzpatrick v. State , 900 So.2d 495, 514-15 (Fla. 2005) ).

Defendant correctly argues that it was Plaintiff's burden to prove the reasonableness and necessity of medical expenses. See Albertson's Inc. v. Brady , 475 So.2d 986, 988 (Fla. 2d DCA 1985) ("It is well established that the plaintiff in a personal injury suit has the burden to prove the reasonableness and necessity of medical expenses.").

Regarding reasonableness, "[a]lthough some jurisdictions consider evidence of the amount of a medical bill to be sufficient proof of reasonableness, many, including Florida, require something more." Id. As we have observed, in a personal injury action, "[t]he patient's obligation is not to pay whatever the provider demands, but only a reasonable amount ." Columbia Hosp. (Palm Beaches) Ltd. P'ship v. Hasson , 33 So.3d 148, 150 (Fla. 4th DCA 2010) (emphasis added) (quoting A.J. v. State, 677 So.2d 935, 937 (Fla. 4th DCA 1996) ). Thus, in Florida, the plaintiff's burden to prove the reasonableness and necessity of medical expenses "requires more than just evidence of the amount of the bill to establish that reasonableness." E. W. Karate Ass'n, Inc. v. Riquelme , 638 So.2d 604, 605 (Fla. 4th DCA 1994).

Defendant concedes that expert testimony is not required to establish the reasonableness and necessity of medical bills; instead, a plaintiff's lay testimony may adequately establish the reasonableness and necessity of the medical bills. See Garrett v. Morris Kirschman & Co. , 336 So.2d 566, 571 (Fla. 1976) ); Easton v. Bradford , 390 So.2d 1202, 1204 (Fla. 2d DCA 1980) (holding that the plaintiff's "detailed description of the treatment procedures clearly related the therapy to the accident," and the medical bills were properly admitted into evidence). However, quoting Albertson's , Defendant contends that where a plaintiff "does not associate each bill with injuries resulting from the accident ... the reasonableness and necessity of the medical bills [are] not adequately established[.]" Albertson's , 475 So.2d at 988.

Defendant argues that there was no testimony from Plaintiff associating each bill to the subject accident. Specifically, Defendant asserts that Plaintiff simply testified that she still owes the past medical bills but that she did not know the amount. He points out that the medical bills themselves were insufficient to meet her burden to prove the reasonableness and necessity of her past medical bills, apart from the Surgeon's bill.

Plaintiff responds that her testimony sufficiently established the reasonableness and necessity of all of the medical bills by describing the treatment for which the bills were incurred and relating that treatment to the injuries sustained. She maintains that she was not required to address specific dollar amounts, contrary to Defendant's assertion, and all that was necessary was to link the medical treatments she received to the injury resulting from the accident.

In Albertson's , the Second District determined that the trial court improperly admitted a composite exhibit of the plaintiff's medical bills. There, the plaintiff, Ruth Brady, in responding to her counsel's questions, described the exhibit as follows:

Q. Ruth, I also have a composite exhibit which includes all medical bills and prescriptions that have been incurred to date. They total $13,122.94.
A. Yes, and I have some medical bills at home I never brought to you.
Q. Okay. But you've had occasion already to review this composite exhibit. Does this contain all the bills to date other than those you've just made reference to to the best of your knowledge?
A. Yes. It's pretty close 'cause I thought maybe fifteen or twenty-but I didn't know how many thousands it was.

Albertson's , 475 So.2d at 987-88. Albertson's objected to the composite exhibit on the ground that there was no predicate laid as to reasonableness and necessity. Id. at 988. The trial court overruled the objection. Id.

The Second District determined that the evidentiary scenario in Albertson's was distinguishable from Garrett , where our supreme court determined that the plaintiff's testimony adequately established the reasonableness and necessity of medical bills, and expert testimony was not required. Id. The Second District also determined that the evidentiary scenario was distinguishable from its prior decision in Easton , where the court held that, since the plaintiff's " 'detailed description of the treatment procedures clearly related the therapy to the accident,' the medical bills were properly admitted into evidence." Id. (quoting Easton , 390 So.2d at 1204 ). Immediately after distinguishing Garrett and Easton , the Second District said:

Here, unlike in Garrett and Easton , [Brady]'s testimony does not associate each medical bill with injuries resulting from the accident at Albertson's.

Id. (emphasis added).

In addition to distinguishing the evidentiary issue in Albertson's from Garrett and Easton , the Second District also addressed Brady's contention that the testimony of her physicians, the bills themselves, and the hospital records sufficiently established a prima facie case for admissibility, and her reliance on Crowe v. Overland Hauling, Inc. , 245 So.2d 654 (Fla. 4th DCA 1971). In Crowe , we determined that the testimony of the doctor, the plaintiff's husband, and the plaintiff, coupled with the defendant's stipulation that the charges were reasonable, established a proper predicate for admission of some pharmacy bills. Id. at 655-56. The Second District, in Albertson's , found Crowe inapposite for two reasons. First, in Crowe , the plaintiff's physician testified that he prescribed drugs for the plaintiff to take for pain resulting from her injuries. Albertson's , 475 So.2d at 988. Second, in Crowe , there was a stipulation as to the reasonableness of the medical expenses. Id.

Our reading of Albertson's leads us to the conclusion that the core evidentiary issue which the Second District addressed was the sufficiency of evidence regarding the necessity of medical bills, in the context of whether the medical bills were related to the injury. In Albertson's , unlike this case, apparently neither the plaintiff nor an expert testified about the details of her treatment to establish that the medical bills in her composite exhibit were related to her injury.

Our review of the record in this case leads us to conclude that by the combination of Plaintiff's testimony and the Surgeon's testimony, coupled with the introduction of the medicals bills, Plaintiff provided sufficient testimony to establish the reasonableness and necessity of the medical bills presented to the jury, and the trial court properly denied Defendant's motion for directed verdict and the post-trial motions for new trial and for judgment in accordance with motion for directed verdict. Unpersuaded by Defendant's arguments, we affirm the trial court on this issue.

Trial Preparation Order Noncompliance

Additional Background

Upon setting the case for trial, the trial court entered a trial preparation order. The trial preparation order required the parties to disclose their expert witnesses ninety days prior to trial and to include particular information regarding their expert witnesses. Significantly, the order stated that the parties would be strictly limited to trial witnesses properly and timely disclosed.

With two amendments, Plaintiff filed disclosures in response to the trial preparation order. None of the disclosures designated the Surgeon as an expert and his area of expertise or provided his curriculum vitae , as required by the trial preparation order. In the initial and first amended disclosures, the Surgeon was listed in conjunction with a records custodian or representative of his office. None of the disclosures contained separate descriptions of the substance of each witness's testimony, as required by the order. However, in the initial and first amended disclosures, after listing her witnesses, Plaintiff included a brief final paragraph which stated:

Will testify as to the history, examination, diagnosis, treatment, prognosis, disability, causation, permanency of the Plaintiff's condition and reasonable necessary charges for services.

In the last disclosure filed, the Surgeon and the records custodian from his office were listed on separate lines, but the Surgeon still was not designated as an expert. The final disclosure did not contain the brief paragraph at the end of the list of witnesses used in the prior disclosures stating a general description of the witness testimony collectively.

Prior to the start of trial, Defendant objected to Plaintiff calling the Surgeon as an expert witness due to noncompliance with the trial preparation order. Defense counsel informed the court that she had not deposed the Surgeon and argued that the Surgeon's reports did not discuss anything regarding causation or permanency of the injury. She argued that the failure to designate the Surgeon as an expert and the failure to disclose the substance of his opinions precluded the Surgeon from providing any expert opinions on those issues. Plaintiff's counsel confirmed that she intended to have the Surgeon testify regarding causation and permanency, stating that he was the treating doctor and that his opinions were implicit in the medical records. When asked by the trial court, Plaintiff conceded that she had not provided the Surgeon's curriculum vitae to Defendant, but argued that Defendant had not provided a curriculum vitae for his expert either. Apparently looking at one of Plaintiff's prior trial preparation disclosures, the trial court noted the paragraph at the end of the witness list stating collectively what Plaintiff's witnesses would be testifying about, including causation and permanency. Defendant maintained that this was insufficient because experts were supposed to be specifically designated. The trial court overruled the objection.

Defendant did not renew his prior objection when the Surgeon testified that Plaintiff's injury was a permanent disability. The prior objection was renewed when Plaintiff's counsel asked the Surgeon whether the injury was related to the car accident. Defendant's renewed objection was overruled. The Surgeon then testified that in his opinion, he believed the injury was related to the accident. Defendant's medical expert disputed the accident caused a permanent injury to Plaintiff.

Analysis

Defendant contends the trial court erred in denying his motion for new trial. The motion asserted the trial court improperly allowed the Surgeon to testify as an expert on issues of causation and permanency in violation of the trial court's trial preparation order.

Generally, we review trial court orders regarding motions for new trial for abuse of broad discretion. Office Depot, Inc. v. Miller , 584 So.2d 587, 589 (Fla. 4th DCA 1991). Admission or exclusion of the testimony of a witness in violation of a trial preparation order is within the trial court's discretion. Binger v. King Pest Control , 401 So.2d 1310, 1313-14 (Fla. 1981).

In Binger , our supreme court held that "a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order." Id. at 1313. "The discretion to do so must not be exercised blindly, however, and should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party. Prejudice in this sense refers to the surprise in fact of the objecting party[.]" Id. at 1314 (footnote omitted). Binger also outlined other factors which should guide the discretion to permit or exclude evidence in violation of trial preparation orders:

(i) the objecting party's ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

Id.

On appeal, Defendant argues that a new trial is required because he was prejudiced by the Surgeon's undisclosed opinions. He argues that Plaintiff's counsel failed to properly disclose the Surgeon as an expert witness, even though she intended to present expert opinions from him on the issues of causation and permanency. Plaintiff's counsel's intention was demonstrated by Plaintiff's counsel providing the Surgeon with all of Plaintiff's medical records, including a compulsory medical examination report and other records the Surgeon did not previously have, two days before trial so that the Surgeon could review them. Defendant further argues that there were no opinions as to causation and permanency in the Surgeon's medical records and that he was surprised in fact by the Surgeon's undisclosed opinions. Additionally, Defendant argues he was prevented from taking the Surgeon's expert opinions into account in preparing for and defending the case and had no ability to cure the prejudice, as he had no time to counteract these opinions or to allow his own expert to analyze the Surgeon's testimony.

In part, Defendant's arguments are framed around the distinction between a treating physician testifying as a fact witness and a treating physician testifying as an expert witness. However, we are satisfied that the trial court recognized that the Surgeon was testifying as an expert witness, in addition to providing fact testimony as the treating physician. We are also satisfied that the trial court recognized that Plaintiff failed to properly disclose the Surgeon as an expert witness in strict compliance with the pretrial order. While it is clear from the record that Plaintiff's counsel failed to comply with the trial preparation order, Defendant's arguments do not demonstrate an abuse of discretion by the trial court.

Defendant argues that had he known Plaintiff intended to use the Surgeon as an expert, he could have conducted additional expert discovery and deposed the Surgeon. However, the Surgeon was listed as a witness on each of Plaintiff's witness lists and it does not appear that Defendant's counsel sought to depose him, even as the treating physician. He further argues that he likely would have challenged the Surgeon's opinion as to permanency under the Daubert expert opinion standards. However, Defendant failed to ask for a Daubert hearing during trial or contemporaneously object to the Surgeon's testimony regarding the permanency of Plaintiff's injury. Indeed, nothing prevented Defendant from objecting at trial regarding the Surgeon's bases for determining his opinion as to permanency. Thus, his argument that he was prejudiced by the nondisclosure of the Surgeon as an expert, fails. Furthermore, Defendant's argument that he was surprised by the Surgeon's opinions is suspect, where apart from damages, those were the only other two issues in dispute to be determined at trial.

It appears to us the trial court was somewhat persuaded that Plaintiff's first two witness lists indicated generally that witnesses would be providing testimony as to permanency and causation, even after observing that Plaintiff did not explicitly comply by identifying which witness would testify about those issues. The trial court was also concerned that the prior general statement about the substance of witness testimony collectively was not included in the last version of Plaintiff's witness list. However, the trial court found it significant that Defendant did not seek to compel Plaintiff's strict compliance with the trial preparation order. Indeed, Defendant did not raise the issue of Plaintiff's noncompliance until just before trial was to begin. Additionally, despite the failure to enforce compliance, Defendant was able to present his own expert witness disputing the causation and permanency of Plaintiff's injury.

Finally, we note that part of the reason the trial court decided not to strike the Surgeon's expert testimony was because it had found that neither party had strictly complied with the trial preparation order. As Binger provides, "if after considering [the Binger ] factors, and any others that are relevant , the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify." Id. at 1314 (emphasis added).

Having failed to establish the trial court abused its discretion, we find no error in the admission of the Surgeon's testimony, despite noncompliance with the pretrial preparation order, or the denial of Defendant's motion for new trial based on issues regarding the Surgeon's testimony.

Conclusion

Although Defendant raised eight issues arguing for reversal, we are not persuaded the trial court erred.

Affirmed.

NOTE: GERBER , C.J., did not participate in oral argument, but has had the opportunity to review the entire proceedings.

Gerber, C.J., and Levine, J., concur.

      Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).


source: Caselaw Access Project

author: Forst, J.

license: Public Domain

text:
    Junio SAINVIL, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D17-1745 4D17-1746
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2018]
    Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Junio Sainvil appeals the trial court's orders revoking his community control and imposing two concurrent ten-year sentences. On appeal, Appellant argues that the court failed to conduct a Richardson hearing, predetermined the ten-year sentence, and ordered restitution without first holding a hearing. We find no merit in Appellant's first two arguments and affirm without discussion. As to Appellant's third argument, the State concedes error and we agree. Accordingly, we reverse and remand the restitution order with instructions to hold a hearing to properly determine the amount of restitution.

Background

Appellant pled guilty to two counts of burglary of a dwelling and one count of grand theft. In exchange for the guilty pleas, the trial court sentenced Appellant as a youthful offender for a total of two years of community control, followed by four years of probation. It also ordered restitution to the victim, indicating it would render a determination at an unspecified later date. Initially, Appellant twice violated his community control. After a subsequent arrest for fleeing and eluding law enforcement during a traffic stop, the trial court found that Appellant had once again violated community control. Appellant was sentenced to two concurrent ten-year sentences with credit for time served. That same day, the court entered an order finding that Appellant owed the victim $6,500 in restitution. The trial court did not hold a hearing to determine the amount. Appellant filed a rule 3.800(b)(2) motion to alert the court to the error, but the court effectively denied the motion by failing to rule on it.

Analysis

"The imposition of restitution without notice or a hearing is error." Hamrick v. State , 648 So.2d 274, 276 (Fla. 4th DCA 1995) ; see also Manuel v. State , 152 So.3d 1290, 1290 (Fla. 4th DCA 2015). The trial court did not err in ordering Appellant to pay restitution, but it must hold a hearing to properly determine the amount. Hamrick , 648 So.2d at 276. In determining the proper amount, the court must consider several factors, "including the loss by the victim and the appellant's ability to pay restitution." Id. (citing § 775.089(6), Fla. Stat. (1993) ). Here, the State concedes error, and the record on appeal is silent as to the manner in which the court calculated restitution.

Conclusion

Apart from the restitution portion of the trial court's order, we affirm the judgment and sentence. As conceded by the State, the trial court erred in ordering Appellant to pay a sum certain in restitution without first providing notice or conducting a hearing to determine the amount. Accordingly, we reverse and remand this issue to the trial court to conduct a hearing and issue a new restitution order. See Manuel , 152 So.3d at 1290.

Affirmed in part, Reversed in part and Remanded .

Damoorgian and Klingensmith, JJ., concur.


author: Ciklin, J.

text:
    Marlon Joel GRIMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-127
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Ciklin, J.

Marlon Grimes contends that his conviction for possession of a firearm by a convicted felon should be reversed because the trial court abused its discretion in allowing the state to introduce multiple certified judgments of prior felony convictions into evidence in order to establish Grimes' legal status. On the record before us, we find no error and we affirm.

As the parties were preparing to begin voir dire, Grimes moved to exclude all but one of the certified judgments the state sought to enter into evidence to prove Grimes was a convicted felon. Grimes argued that only one judgment was necessary and that admission of more than one would be "overly prejudicial." The state explained that it sought to admit six certified judgments encompassing eight felony convictions: three sales of cocaine, three possessions of cocaine, a fleeing and eluding, and resisting an officer with violence.

The trial court noted that Grimes did not stipulate to the legal status element of the offense and that it was not apparent as to whether Grimes would dispute that element of the charged crime. Based on Harris v. State , 449 So.2d 892 (Fla. 1st DCA 1984), the trial court fashioned a compromise: the state could introduce four certified judgments encompassing up to six convictions. The trial court believed that any more than that would be cumulative and unduly prejudicial. During trial, four certified judgments were entered into evidence. They reflected convictions for two sales of cocaine and three possessions of cocaine.

In moving for exclusion of all but one certified judgment, Grimes acknowledged the relevance of any one of the prior convictions. He focused on the cumulative and overly prejudicial effect of the other certified judgments. Thus, his objection was lodged pursuant to section 90.403, Florida Statutes (2016), which provides that "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence."

The Florida Supreme Court has elaborated on the balancing inquiry of section 90.403 :

"Unfair prejudice" has been described as "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Brown v. State , 719 So.2d 882, 885 (Fla. 1998) (quoting Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed. 2d 574 (1997) ). This rule of exclusion "is directed at evidence which inflames the jury or appeals improperly to the jury's emotions." Steverson v. State , 695 So.2d 687, 688-89 (Fla. 1997). In performing the balancing test to determine if the unfair prejudice outweighs the probative value of the evidence, the trial court should consider the need for the evidence , the tendency of the evidence to suggest an emotional basis for the verdict , the chain of inference from the evidence necessary to establish the material fact, and the effectiveness of a limiting instruction . Taylor v. State , 855 So.2d 1, 22 (Fla. 2003). The trial court is obligated to exclude evidence in which unfair prejudice outweighs the probative value in order to avoid the danger that a jury will convict a defendant based upon reasons other than evidence establishing his guilt.

Wright v. State , 19 So.3d 277, 296 (Fla. 2009) (emphases in original) (quoting McDuffie v. State , 970 So.2d 312, 327 (Fla. 2007) ).

The trial court relied on Harris , 449 So.2d at 896-98, which involved the application of section 90.403 to the admission of more than one prior conviction in a prosecution for possession of a firearm by a convicted felon. In Harris's first trial, which ended in a mistrial, the parties stipulated to his status as a convicted felon. Id. at 894. During the second trial, certified copies of four of Harris's prior felony convictions were introduced into evidence over his objection. Id. at 895.

Harris argued on appeal that the trial court erred in allowing the state to introduce documentary evidence of his four felony convictions, as the probative value was substantially outweighed by the prejudicial effect. Id. at 896. The First District rejected the argument, first recognizing that a prior conviction is a substantive element of the offense. Id. But the court also recognized that even if the introduction of more than one prior felony conviction was not necessary, "the test for admissibility of evidence of such prior convictions is one of relevancy , not necessity." Id. (emphasis in original). The court explained that not all relevant evidence is admissible under the balancing test of section 90.403. Id. at 897. The court affirmed that a trial court has discretion to determine whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice or the needless presentation of cumulative evidence: "The court must weigh the proffered evidence against the other facts in the record and balance it against the strength of the reason for exclusion." Id.

(quoting C. Ehrhardt, Florida Evidence § 403.1 at 62-63 (1977) ). The court also recognized that "most evidence that is admitted will be prejudicial to the adverse party," and it is only "evidence which inflames the jury or appeals strongly to the jury's prejudice" that triggers the protections of section 90.403. Id. (quoting C. Ehrhardt, Florida Evidence § 403.1 at 62-63 (1977) ). The court requested guidance from the Florida Supreme Court on the issue of whether, in a prosecution for possession of a firearm by a convicted felon, the admission of more than one prior felony conviction and the particulars of each crime amounts to reversible error. Id. at 898. The Florida Supreme Court declined review. Harris v. State , 453 So.2d 1364 (Fla. 1984).

Many years after Harris issued, the Florida Supreme Court, relying on Old Chief v. United States , 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), held that "when a criminal defendant offers to stipulate to the convicted felon element of a charge of possession of firearm by a convicted felon, the State and the trial court should accept that stipulation." Brown v. State , 719 So.2d 882, 889 (Fla. 1998). Under such a stipulation, the jury would not be informed of the number or nature of the prior convictions submitted by the state to the court, and the trial court would "instruct the jury that it can consider the convicted felon status element of the crime as proven by agreement of the parties in the form of a stipulation." Id. The court recognized that there is a "risk of prejudice inherent in establishing that a defendant is a convicted felon," but that in "the absence of a dispute that the prior conviction was indeed a felony, such an admission [of the prior substantive offense] can only prejudice the jury with absolutely no countervailing interest in its support." Id. at 888 (alteration in original) (citation omitted). The Florida Supreme Court also agreed with the United States Supreme Court's assertion that the prosecution's need for "evidentiary depth" in satisfying its burden of persuasion has "virtually no application when the point at issue is a defendant's legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him." Id. (quoting Old Chief , 519 U.S. at 190, 117 S.Ct. 644 ). The court summed up:

Offering into evidence anything beyond what is necessary to establish the defendant's legal status as a convicted felon is irrelevant to the current proceeding, has "discounted probative value," and may needlessly risk a conviction on improper grounds. Old Chief , 519 U.S. at 191, 117 S.Ct. 644.
[W]hen presented with an "evidentiary alternative"-a defendant's stipulation of prior convicted felon status-rather than attempting to balance the "twin tendencies" of prior conviction evidence, trial courts should ordinarily accept such a stipulation when requested by a criminal defendant.

Id. at 889 (footnote omitted).

Here, Grimes did not stipulate to the legal status element of the offense. If Grimes had offered a stipulation, then pursuant to Brown , the state would have been required to accept the stipulation, and the jury would not have been apprised of the actual number or nature of his prior convictions.

With a stipulation lacking, the trial court had to engage in the balancing inquiry of section 90.403-the inquiry that was the focus of Harris . The trial court could have limited the state to fewer certified judgments, and perhaps it could have provided a limiting instruction. But we are not able to say that the trial court abused its discretion.

Affirmed.

Warner and Klingensmith, JJ., concur.

      The opinion does not indicate whether Harris stipulated to his legal status when he was retried.

      Defense counsel did not request such an instruction.

      We do not address whether the trial court should have redacted the certified judgments of any information reflecting the nature of the offenses, as defense counsel failed to make such a request and the issue was not raised on appeal.


text:
    Harold INGRAHAM, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3605
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Jacob M. Noble, Palm Beach County, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Harold Ingraham, Jr. appeals the trial court's summary denial of his motion to withdraw his guilty plea. Appellant contends his plea was involuntarily made and that he is entitled to an evidentiary hearing with respect to his motion. Alternatively, he argues that he was denied due process because the trial court did not permit his conflict-free counsel the opportunity to amend the motion. We agree with the trial court that Appellant's motion was facially insufficient to entitle him to an evidentiary hearing. However, we reverse and remand, agreeing with Appellant that he was entitled to have conflict-free counsel amend the motion to withdraw plea.

Background

Appellant was charged with sexual battery on a victim eighteen-years of age or older. Pursuant to an agreement with the State, Appellant entered a guilty plea to the lesser charge of aggravated battery. Appellant's initial attorney then filed a motion to withdraw plea. The motion alleged the plea was involuntary because Appellant's initial attorney failed to inform him of the "weakness in the State's case against him until after the plea was accepted." The motion did not identify what "weaknesses" were withheld from Appellant. Also in the motion, Appellant's initial attorney requested to withdraw from the case based on the nature of the allegations, and asked the court to grant the motion to withdraw plea or appoint conflict-free counsel to further pursue the withdrawal. The trial court granted the initial attorney's request to withdraw and appointed conflict-free counsel to represent Appellant. However, the following day, the trial court summarily denied Appellant's motion to withdraw his plea.

Analysis

We review the trial court's summary denial of a motion to withdraw a plea after sentencing for abuse of discretion. Hamil v. State , 106 So.3d 495, 497 (Fla. 4th DCA 2013) (citing Woodly v. State , 937 So.2d 193, 196 (Fla. 4th DCA 2006) ).

To file a facially sufficient motion to withdraw plea after sentencing, the burden is on the defendant to prove that a manifest injustice has occurred (for example, that the plea was involuntarily entered) and that withdrawal is necessary to correct this injustice. See id. (citing Panchu v. State , 1 So.3d 1243, 1245 (Fla. 4th DCA 2009) ). But the motion to withdraw plea must be more than a mere recitation of general allegations. See Saintiler v. State , 109 So.3d 303, 305 (Fla. 4th DCA 2013) (finding the motion "facially insufficient because the appellant did not set forth any factual basis to support his conclusory allegations."); Powell v. State , 929 So.2d 54, 55 (Fla. 5th DCA 2006) ("[C]onclusory allegations are insufficient[;] a defendant must offer some proof that his plea was not voluntarily entered."). Here, Appellant's motion was facially insufficient because it did not set forth any factual basis to support his conclusory allegation that his initial attorney failed to inform him of certain "weaknesses" in the State's case.

However, Appellant's motion was filed by the same attorney whose purported action/inaction was the basis of the motion to withdraw plea. Not every motion to withdraw plea based on failure to advise requires conflict-free counsel. A trial court is only required to appoint conflict-free counsel if an adversary relationship exists and the defendant's allegations are not conclusively refuted by the record. See Nelfrard v. State , 34 So.3d 221, 223 (Fla. 4th DCA 2010) (citing Sheppard v. State , 17 So.3d 275, 286-87 (Fla. 2009) ). Here, the trial court granted the initial attorney's request to withdraw, implicitly acknowledging a potential conflict between Appellant and the initial attorney who prepared the motion to withdraw plea.

"It is difficult to discern how defense counsel could have effectively represented defendant at the motion to withdraw his plea when the very basis for the motion was allegations concerning defense counsel's own misconduct ...." Roberts v. State , 670 So.2d 1042, 1045 (Fla. 4th DCA 1996). By summarily denying the motion to withdraw plea the day after conflict-free counsel was appointed, the trial court did not afford an opportunity for this substitute counsel to amend the motion. The inconsistency between appointing substitute counsel and not permitting that substitute counsel with an opportunity to act on Appellant's behalf is an abuse of discretion.

Conclusion

We reverse the trial court's denial of Appellant's motion to withdraw plea and remand to allow conflict-free counsel an opportunity to file an amended motion.

Reversed and Remanded.

Levine and Conner, JJ., concur.


author: Warner, J.

text:
    James E. EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3790
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Carey Haughwout, Public Defender, and Erika Follmer, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

Appellant challenges his convictions for sexual battery and burglary with an assault. He contends that the court erred in multiple rulings. We affirm as to all issues, but address only two. First, the court admitted a 911 call from the victim as an excited utterance. Appellant contends that the time between the incident and the call was sufficient to allow time for reflection, so that the court abused its discretion in admitting the call. Considering all the circumstances of the event, the trial court properly admitted the call. Second, appellant claims that the court erred in denying his motion for mistrial after an outburst by the victim. This too is a discretionary call by the court, and the court did not abuse that discretion.

The State charged the defendant with several counts of sexual battery and burglary with an assault of a seventy-seven-year-old woman. Appellant contended that their contact was entirely consensual.

At trial, the victim, testified that she lived alone in a senior citizens complex. On the night of the incident, she awoke to see the silhouette of a figure in her doorway. The person grabbed her and said, "[I]t's going to be okay, don't worry." He pushed her back into her bedroom and she realized he was a stranger. He got on top of her on her bed. She was scared and thought she was going to die. The man told her he was a gentle man and would not hurt her. Trying to act calm, she asked him to have a glass of wine and talk, but he kept pushing her down. He then sexually assaulted her in multiple ways. She then asked for some water, and they both got up and went to the kitchen. She suggested that they sit in the living room and talk, because she wanted to gain his confidence. When they went in the living room, she could see his face and features. He also digitally penetrated her while in the living room. She told him she wasn't angry with him. They talked for a while, and then she gave him her business card with her cell phone number on it. She was trying to connect with him on a human level, as she knew she couldn't fight him.

After a while, he thought she was tired, and he decided to leave. He started to get dressed and realized he left his cigarettes in her bedroom. They went back to find them. As she was searching, she stepped on something by her bed. It was a knife with a fancy handle in a sheath. The man said, "[T]hat's for my protection." Then he took the knife. They walked into the kitchen, and he hugged her. He said he liked her and wanted to get to know her better. He said he was sorry, that this wasn't the way to start a relationship. She let him think she was ok with that. Then he left through the front door.

She immediately locked the door. She stood there a few seconds or minutes, frozen, not believing what had just happened. Then she called her son and told him she had been raped. The son worked about three and a half miles away, and he was there within fifteen minutes. When he arrived, he called 911, and the victim reported the incident. Police came and interviewed her, collecting evidence.

The next day a person, whom the victim recognized as her attacker, called her cell phone. He called himself "Thomas" and said he wanted to come over. She said "no," but she recognized his voice. She told police about the call. That same person called her again. She also found a pack of Marlboro cigarettes in her apartment the next day. She identified appellant in court as her attacker.

On cross-examination, defense counsel questioned the victim extensively about the incident, suggesting that she had invited appellant into her home and had initiated sexual contact. Defense counsel impeached her with statements she made to the police, including that she told the police right after the incident that she asked him to call her the next day. Counsel questioned her on details, such as the knife and its fancy handle, noting that she had not mentioned the handle to the police or in her deposition. She also had not mentioned to the police that she had seen appellant sometime before the incident sitting on a bench near the victim's apartment complex. Nor had she mentioned in any of her prior statements that appellant had said he was a gentle man or some other details that she revealed on direct examination. The victim grew more and more upset by the tenor of the questions, stating that counsel was making her feel like the guilty one. At one point, she told counsel, "[T]his is ridiculous. I am telling you the honest to God truth." Counsel objected that the victim's answers were non-responsive, at which point the court removed the jury and sought to calm things down, telling the victim that the court understood that she was very emotional. The victim claimed counsel was asking inconsequential questions and that she was trying to be very honest. The court then took a break.

When court reconvened, cross-examination continued. Defense counsel suggested to the victim that the reason that she had not given some information to the police was that she didn't want to lie to them, as she had in fact invited appellant to her home earlier that day. Defense counsel asked whether she was the one who had initiated sexual contact, to which the victim asked why defense counsel was accusing her, as it was not true. Defense counsel then asked if, when she called her son, it was because she was embarrassed that someone might have seen the appellant in her apartment. The victim responded, "Oh no. I swear on my son's soul that everything you are saying is a lie. ... Unbelievable. Oh, my God." Defense counsel moved to strike her response and then moved for a mistrial based upon the victim's outbursts. The court denied the mistrial, but it did instruct the jury to disregard the victim's comments.

Several police officers testified as part of the State's case. One, who arrived after the 911 call, found the victim in a state of shock or disbelief. She was shaking and crying on and off. A nurse testified to the victim's sexual assault examination, and DNA evidence linked appellant to the crime.

By matching the phone number of the person who called the victim the day after the assault, the police located appellant and created a photo line-up. The victim selected appellant's picture as similar, although she thought he looked younger in the photo. Appellant was eventually arrested for the crimes.

At the end of the State's case, the 911 tape was played for the jury. In it the victim told the dispatcher that she had been raped about twenty minutes earlier. She had called her son who had come over. She was concerned that the man may still be in the area. During the call, the victim can be heard crying. She said the man had a knife. She appeared to be in shock. After the 911 call was played, the State rested.

In his defense, appellant admitted that he was in the victim's home, but maintained that their encounter, including the sexual aspects, was consensual. The victim had flirted with him earlier and invited him to her residence. She initiated the sexual relations, and after it was over, she gave him her business card with her cell phone number on it. Until a police interview a few weeks later, he had no reason to believe that the encounter was not consensual.

Appellant was convicted as charged of burglary of a structure with assault or battery, as well as three counts of sexual battery while carrying, displaying, threatening, or attempting to use a weapon, for each sexual battery charge. He was sentenced to concurrent terms of twenty-five years for each count. He now appeals.

Appellant first claims that the court erred in admitting the 911 tape because it did not meet the excited utterance exception of section 90.803(2), Florida Statutes (2013), which allows admission of "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." He argues that because the call was made twenty or thirty minutes after the offense, the victim had sufficient time to engage in reflective thought; thus, her statement could not qualify as an excited utterance.

Stoll v. State , 762 So.2d 870, 873 (Fla. 2000), announced that three requirements must be met before a court can admit an excited utterance: 1) an event startling enough to cause nervous excitement; 2) the statement was made without time to contrive; 3) the statement was made while the person was still under the stress of the startling event. Appellant concedes that the incident would qualify as startling enough to cause nervous excitement; however, he contends that the interval between the event and the 911 call was long enough to allow time to contrive. As stated in Stoll ,

If "the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process." [citing State v. Jano , 524 So.2d 660, 662 (Fla. 1988) ] (quoting Edward W. Clearly, McCormick on Evidence , § 297 at 856 (3d ed.1984) ); ....

Id. (alteration added). However, there is no bright-line rule for determining whether too much time has passed for the exception to apply. Blandenburg v. State , 890 So.2d 267, 270 (Fla. 1st DCA 2004). Blandenburg points out that the common thread running through the cases that find the statement fits within the exception, even though time passed between the event and the statement, "is that at the time of the statement, the declarants were either 'hysterical,' severely injured, or subject to some other extreme emotional state sufficient to prevent reflective thought." Id.

In Akien v. State , 44 So.3d 152 (Fla. 4th DCA 2010), a case somewhat similar to this case, the State sought to admit, over a defense objection that it did not constitute an excited utterance, a 911 call from a victim. There, a seventeen-year-old victim had gone to bed and awakened to find a man with his hand around her neck. Id. at 153. He threatened to kill her if she didn't stop fighting. Id. He covered her head with a blanket, took her clothes off, and raped her for thirty to forty-five minutes. Id. He ordered her to take a shower, took a nude photo of her, and ordered her to write a note stating that the sex was consensual. Id. He removed the bed sheets, taking the victim's keys and asking for her cell phone number before he left. Five minutes after he left, she called her mother, who convinced her to call the police. Id. At trial, the defendant argued that too much time had passed between the assault and the 911 call, so that the victim could have had reflective thought. Id. at 154. The trial court ruled the victim's 911 call qualified as an excited utterance because the call was still made under the stress of the event. Id. This court agreed. The recording of the 911 call did not refute the contention that the victim was still under the stress of the rape. Id. at 155.

Similarly, in this case, the victim was an elderly woman. Although she called her son first, and waited until he arrived in order to call the police, the 911 call was made only about twenty minutes after the appellant left her apartment. During the call, she was crying and in shock. Further, an officer who came to the scene also described the victim as in shock. The victim sounded stunned and extremely concerned that she was still in danger. The court acted within its discretion in admitting the tape.

As a second ground for reversal, appellant argues that the court erred in denying his motion for mistrial after the outburst by the victim. A ruling on a motion for mistrial is within the trial court's discretion. "A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial." Hamilton v. State , 703 So.2d 1038, 1041 (Fla. 1997).

When the appellate court "cannot glean from the record how intense a witness's outburst was[,]" it should defer to the trial court's judgments and rulings. See Thomas v. State , 748 So.2d 970, 980 (Fla. 1999). In Thomas , the defendant was charged with first-degree murder along with his co-defendant. The State asked the murder victim's companion to identify the defendants at trial by standing next to them. Id. At that point she suffered an emotional breakdown. Id. The Florida Supreme Court ruled that the trial court did not abuse its discretion in denying a mistrial. Id. The court noted that an appellate court should defer to the trial court's judgment when it cannot tell from the record how intense the witness's outburst was. In Thomas , after the breakdown, the judge stopped the trial, removed the jury, and did not resume until the companion had gathered herself completely. Id.

Unlike Thomas , appellant contends that the victim's emotional outburst is apparent on the record. He relies on Colon v. State , 191 So.3d 985, 986 (Fla. 2d DCA 2016). There, in a capital sexual battery case, the mother of a four-year-old child who had been sexually battered was testifying. When the mother was shown a picture of the child's vaginal injuries, she stated that she needed to throw up, and then vomited into a trash can. Id. The mother was visibly upset and cried throughout her testimony. Id. The trial court denied a motion for mistrial. The appellate court reversed because the record clearly showed the severity and intensity of the mother's reaction to the photograph. Id. Further, the defense had sought to have the photo admitted through a physician, in order to avoid triggering the mother to have an emotional reaction, as had occurred when she viewed the photo at her deposition. Id. The appellate court reversed because of the lack of justification for the state's chosen trial tactic of having the mother identify the photo. The mother's response had been a "visceral" response, not simply an emotional response, and the court was on notice that it was probable that the mother would have an emotional outburst if the court allowed the state to show her the picture. Id. at 986-87.

Colon is unlike the present case, where the victim chastised the defense attorney for suggesting that she was lying and for asking questions which were irrelevant. The record in the present case does not indicate as extreme a response as in Colon . The victim merely said things such as "Oh my God" and "unbelievable" to indicate that she didn't understand why the defense would suggest that she was lying. To the contrary, it appears that after the court ordered a recess, the victim calmed herself, but after the recess ended, defense counsel commenced even more pointed questioning, challenging the victim. Unlike either Colon or Thomas , the victim's emotional outburst appears to have been directed at her indignation at being accused of lying. While the defense should be entitled to question the victim's credibility, it is not surprising that she reacted with an emotional outburst. We cannot gauge the intensity of the outburst, as it appears that it was limited to a few words. On this record, we must defer to the trial court's superior vantage point at trial, and we hold that the court did not abuse its discretion in denying the motion for mistrial. See Thomas , 748 So.2d at 980.

We affirm, without further comment the remaining issues raised because they do not present any error or abuse of discretion and because all of them are harmless beyond a reasonable doubt.

For the foregoing reasons, we affirm appellant's convictions and sentences.

Affirmed.

Ciklin and Klingensmith, JJ., concur.

      Moreover, it appears that the 911 call could have been admissible as non-hearsay under section 90.801(2)(b), Florida Statutes, as the victim/declarant testified at the trial and was subject to cross-examination regarding her statements. The 911 call was consistent with her testimony and "offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication," as defense counsel suggested quite pointedly that the victim was lying about the encounter.


text:
    Augustus ROSE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1723
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Forst, J.

Appellant Augustus Rose appeals the denial of his motion to withdraw his plea and vacate his sentence, arguing that the trial court fundamentally erred in accepting his plea of nolo contendere without first holding a hearing to determine his competency. We agree and reverse and remand for further proceedings consistent with this opinion.

Background

Appellant was charged with burglary of a dwelling with assault or battery while armed, kidnapping with a weapon or firearm, abuse of a disabled adult, and possession of a firearm by a convicted felon. His defense counsel filed a motion to examine Appellant "on the issue of competence to proceed," with an assertion that the motion was made "in good faith and on reasonable ground to believe that [Appellant] is incompetent to proceed." The trial court granted the motion.

Nearly one year later, Appellant entered a "no contest" plea to all charges. On his Felony Plea Form, it was noted that Appellant was prescribed medication for "mental health." His counsel further informed the court that Appellant had been treated in the past for mental illness and, after Appellant's arrest, a psychological examination had been performed. However, there was no discussion with respect to the details of this evaluation at either the change of plea or sentencing hearings. When questioned as to whether Appellant had been "deemed competent and not insane at the time of the offense," Appellant responded "[t]hat's what they said."

At the sentencing hearing, more details regarding Appellant's mental health history were presented to the trial court. This was the first opportunity for the judge to review the mental competency examination report. In arguing for a bottom of the guidelines sentence, defense counsel made note that Appellant had been "Baker-acted"; received in-patient mental health treatment; continues to be prescribed medication; and, continues to have mental health issues. The trial court made no further inquiries regarding Appellant's present mental fitness at either the change of plea or sentencing hearing. Appellant was sentenced to forty years in prison.

Subsequently, Appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.170(f) to withdraw his plea. In asserting that Appellant's agreement to enter the no contest plea was involuntary, the motion notes the trial court had been informed of Appellant's "mental health issues" and prior "mental health commitment." It further alleged that, at the time Appellant entered the plea agreement, he was taking four different medications, each of which "have either a sedative, neurological or psychological effect on a person." A hearing was then held on Appellant's motion. There, the court denied the motion and rejected Appellant's claims that he was impaired at the time he entered his plea ("There is no showing that any of this medication he claims he was taking affected his ability to understand the proceedings."). Appellant's appeal follows, with the allegation that the trial court reversibly erred when it did not conduct a competency hearing and enter a written order regarding competency before accepting Appellant's change of plea.

Analysis

"The procedure for determining a defendant's competency is governed by Florida Rules of Criminal Procedure 3.210 through 3.215. We review the court's judgment and its compliance with these rules de novo. " Hawks v. State , 226 So.3d 892, 893 (Fla. 4th DCA 2017).

Once a trial court has reasonable grounds to believe the defendant is incompetent and orders an examination, it must hold a hearing, and it must enter a written order on the issue. See Fla. R. Crim. P. 3.210(b), 3.212(b). Failure to do so is fundamental error and requires reversal.

Dortch v. State , Nos. 4D16-2815, 4D16-2816, 242 So.3d 431, 432-33, 2018 WL 1617082, at *1 (Fla. 4th DCA Apr. 4, 2018) (emphasis added) (footnote omitted).

In Hawks , we set forth the "three steps" a trial court must take following "an initial determination that it has reasonable grounds to question the competency of a defendant." Hawks , 226 So.3d at 894. The trial court followed none of these steps: it did not schedule a competency hearing; it did not hold a competency hearing; and it did not issue a written order making findings as to the defendant's competence. Its failure to do so was fundamental error, regardless of whether there was a previous declaration or adjudication of incompetence or whether a motion to withdraw plea was filed and considered by the trial court. See Dortch , 4D16-2815, 242 So.3d at 433-34, 2018 WL 1617082, at *2. Thus, to the extent that Appellant failed to properly preserve the competency issue, either at the change of plea hearing, the sentencing hearing, or the motion to withdraw plea hearing, the purported failures are not fatal in our review of this issue.

The State appears to argue on appeal that the trial court's failure to hold the competency hearing mandated by Rule 3.210(b) is excusable because (1) Appellant "specifically agreed to his own competence," and (2) Appellant waived a competency hearing. As noted in the Background section of this opinion, Appellant did not "specifically agree[ ]"; rather, he merely acknowledged that the expert's report said he was competent. Moreover, it was Appellant, through defense counsel, who initiated the Rule 3.210(b) process when he moved for a mental competence examination and declared that the motion was made "in good faith and on reasonable ground to believe that [Appellant] is incompetent to proceed."

As to the purported waiver, a defendant may not waive his or her right to a competency hearing. Williams v. State , 169 So.3d 221, 223 (Fla. 2d DCA 2015). "[E]ven an express waiver of a hearing does not comport with the statute." Deferrell v. State , 199 So.3d 1056, 1061 (Fla. 4th DCA 2016) (remanding for a competency hearing notwithstanding three mental competency examinations opining that the defendant was competent to proceed.).

In Presley v. State , 199 So.3d 1014 (Fla. 4th DCA 2016), the trial court accepted defendant's no contest plea. Id. at 1016. As in the instant case, though at a different stage in the proceedings, the court was put on notice of the defendant's mental health history and treatment and had ordered an evaluation. Id. In both cases, the trial court failed to schedule or hold a competency hearing prior to conducting the next material stage of the proceedings. Id. Both the defendant in Presley and Appellant in the instant case filed a motion to withdraw plea on the basis that the defendant was incompetent at the time of entering the plea, and in both cases that motion was denied. Id. In both cases, "[t]he trial court did not make a finding of competency following an evidentiary hearing or the parties' agreement for the court to decide the competency issue on the basis of a written report." Id. at 1019.

We reversed the denial of the defendant's motions to withdraw his plea in Presley . We must do so in this case as well. "Under Rule 3.210, 'once a trial court has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing.' " Hawks , 226 So.3d at 893 (quoting Monte v. State , 51 So.3d 1196, 1202 (Fla. 4th DCA 2011) ). Here, there were "reasonable grounds," but there was no competency hearing before the change of plea, and there was no written order making findings as to Appellant's competence. Accordingly, we reverse and remand.

On remand, the trial court must first discern whether it can determine Appellant's competence nunc pro tunc. Dortch , 4D16-2815, 242 So.3d at 433-34, 2018 WL 1617082, at *2 ; Hawks , 226 So.3d at 894-95. "If the court finds Appellant was competent at the time of the plea hearing, it must enter a nunc pro tunc order, and the judgment and sentence need not change." Sheheane v. State , 228 So.3d 1178, 1181 (Fla. 1st DCA 2017). If the trial court cannot make a retroactive determination or it finds Appellant was incompetent at the time of the plea hearing, it must grant Appellant's motion to withdraw plea, vacate Appellant's judgment and sentence, and determine or re-determine Appellant's competence to proceed.

Conclusion

There were reasonable grounds to question the competency of Appellant, both prior to the change of plea hearing as well as after this hearing. The trial court's failure to schedule and hold a competency hearing and issue a competency order constitutes fundamental error. This requires us to reverse the trial court's order denying Appellant's motion to withdraw plea and to remand for further proceedings.

Reversed and Remanded for further proceedings consistent with this opinion.

Levine and Conner, JJ., concur.

      The "Baker-acted" reference is to section 394.467, Florida Statutes (2013) ("the Baker Act").

      In its Answer Brief, the State concedes the trial court erred in failing to prepare a written order regarding competency.


author: Per Curiam.

text:
    Jidier A. SAAVEDRA, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-30
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Jidier Saavedra, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Jidier Saavedra appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. In his motion, Saavedra alleged that his 2014 plea of no contest to several controlled substance offenses was involuntary because counsel affirmatively misadvised him that he would not be deported as a result. Contrary to what he had been told, he now claims that Immigration and Customs Enforcement (ICE) has lodged a detainer against him. Having determined that Saavedra alleged a facially sufficient claim, which is not refuted by the record, we reverse and remand.

In 2014, Saavedra entered a global plea agreement in eleven cases. Specifically, he entered a plea of no contest to several controlled substance offenses including a count for trafficking in hydrocodone, which would subject him to mandatory deportation under the federal immigration code. Hernandez v. State , 124 So.3d 757, 762-63 (Fla. 2012) (citing 8 U.S.C. §§ 1101(a)(43)(B), 1227(a)(2)(B)(i) ).

Less than two years after entering his plea, Saavedra was informed that ICE lodged a detainer against him. After learning about the detainer, he filed this timely motion for post-conviction relief, claiming that his plea was involuntary because counsel affirmatively misadvised him that he would not be deported.

We conclude that Saavedra's claim is facially sufficient because he alleged that: (i) he was lawfully in the United States when he entered his plea; (ii) the sole basis for the ICE detainer lodged against him was his 2014 plea; (iii) the law, as it existed when he entered his plea, subjected him to virtually automatic deportation; (iv) the presumptively mandatory consequence of deportation is clear on the face of the federal immigration code; (v) counsel failed to accurately advise him about the deportation consequences of his plea; and (vi) if he had been accurately advised, he would have rejected the plea offer. Cano v. State , 112 So.3d 646, 648 (Fla. 4th DCA 2013).

Furthermore, Saavedra's claim is not refuted by the record. The record reflects that Saavedra's plea form warned that his plea "could" result in deportation, and during the plea colloquy, he was given an equivocal warning regarding the possibility of deportation. In cases like this, where mandatory deportation will result from a plea, these equivocal warnings are not sufficient to refute a claim that counsel provided inaccurate advice regarding deportation. Id.

The State asserts that Saavedra's motion is facially insufficient because he failed to establish that his removal is based solely on his 2014 plea. As Saavedra has alleged that the ICE detainer is based solely on his 2014 plea, this is an issue that should be addressed during an evidentiary hearing.

Accordingly, we reverse and remand with instructions for the trial court to conduct an evidentiary hearing on Saavedra's claim.

Reversed and remanded.

Warner, Gross and Ciklin, JJ., concur.

      We note that Saavedra filed a motion to supplement the appellate record with a copy of a document that purports to be the ICE detainer. As this detainer was not part of the record below, the motion was denied. The proper place to present this evidence for the first time is in the trial court.


author: Taylor, J.

text:
    Michael EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-3965
    District Court of Appeal of Florida, Fourth District.
    [June 13, 2018]
    Carey Haughwout, Public Defender, and Siobhan Helene Shea, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

Michael Edwards appeals his conviction and sentence for aggravated battery. At trial, appellant maintained he was acting in self-defense during a fight with the alleged victim. Critical to his case was testimony by a detective implying that appellant's demeanor during a post-arrest interview indicated deception. We reverse appellant's conviction and remand for a new trial, because the trial court erred in allowing the detective to testify that, based on his training and experience in conducting interviews, certain body language and mannerisms indicate deception. Because appellant exhibited those same mannerisms during the interview, the detective's testimony amounted to an inadmissible opinion on credibility and invaded the province of the jury.

Briefly, the evidence at trial established that a fight arose between appellant and the alleged victim one evening outside a convenience store after the two exchanged words about money the victim claimed appellant owed him for a pair of boots.

Appellant punched the victim, and the two men started fighting. The surveillance video at the convenience store captured the beginning of the fight when appellant threw the first punch, but appellant and the victim disappeared from the camera's view soon thereafter.

The victim and appellant were "just going back and forth" for a while. According to the victim's testimony, appellant eventually pulled out a razor and started cutting him with it. At the time of the fight, the victim was carrying a little silver pocketknife. The victim testified that he was unable to use his knife because his hands were too bloody. The victim denied pulling his knife on appellant or cutting him.

The victim was badly cut on his face, head, neck, and arms. When he realized he was cut, he let appellant go, and appellant got on his bike and rode away.

A detective took a statement from the victim at the hospital. Because the victim claimed in his statement that he was unable to use his knife in the fight, the police never collected or examined the knife.

The detective later conducted a videotaped interrogation of appellant, which was played for the jury. During the interview, appellant mostly looked at the ground, buried his face in his hands, and avoided making eye contact.

The detective asked appellant what caused him to do what he did. Appellant responded by writing on paper, "He tried to kill with his knife." Appellant said the other man was drinking and tried to hurt him. Appellant claimed the man beat him up and cut him with a razor or a knife. Appellant said he could not remember too much after that.

Appellant described the man as "big" and said the man was in a group of three or four people. Appellant denied knowing the man. When the detective asked appellant if he got the knife away from the man, appellant replied that he grabbed the man's hand but could not remember if he got the knife away from him. Appellant repeated that the man cut him. Appellant did not call the police after the incident because "[t]hey don't want to help no bum." Appellant said he just wished that he had not been there.

Shortly before the interrogation was played for the jury, the detective testified that he had received special training in conducting interviews. Then, over repeated defense objections, the trial court permitted the state to elicit testimony from the detective regarding the mannerisms he looks for during interviews that would indicate whether the person is being truthful or deceptive. The detective testified that if someone is being honest and truthful, he will maintain eye contact during the conversation. He said, however, that if someone is being deceptive, he will avoid eye contact and look down. Other indicators of deception, according to the detective, are that the person may bury his face, cross his arms to create a barrier, conceal his mouth, or look away.

Defense counsel strongly objected to the detective's testimony on mannerisms, arguing that it was irrelevant and an improper comment on appellant's veracity. The trial court overruled defense counsel's objections, but precluded the state from offering the detective's ultimate opinion as to whether appellant was telling the truth. Defense counsel also moved for a mistrial, explaining: "Mr. Edwards, as you will see shortly, constantly looks at the ground, doesn't make eye contact. [The detective] just told the jury that he's deceptive based on his training and experience without saying, 'I believe he's deceptive.' " The trial court denied the motion for mistrial.

In both his opening statement and his closing argument, defense counsel suggested that the victim could have introduced the knife into the altercation and that appellant's use of deadly force was justified.

During deliberations, the jury requested to see the last two minutes of appellant's police interview, which the trial court permitted the jury to view.

The jury found appellant guilty of the lesser included offense of aggravated battery, and made a specific finding that appellant actually carried, possessed, or displayed a weapon. The trial court sentenced appellant to 30 years in prison as a habitual violent career criminal. This appeal ensued.

On appeal, appellant argues that the trial court erred in overruling his objection to the detective's testimony regarding mannerisms indicative of deception. Appellant contends that the detective's "experience with other people's mannerisms in interviews in other cases was not relevant." Moreover, appellant asserts that the detective's testimony was, in essence, an improper opinion on appellant's credibility.

The state responds that the trial court properly admitted the detective's opinion. The state argues that the detective was qualified to give either a lay opinion or an expert opinion as to how an individual exhibits deception. The state also points out that the detective never gave an ultimate opinion as to whether appellant was telling the truth during the interview. Finally, the state argues that any error was harmless, emphasizing that the jury was given an instruction on weighing the testimony of witnesses, that the evidence was "overwhelming," and that the prosecutor did not rely on the detective's body language testimony in closing argument.

"A trial court's ruling on the admissibility of evidence is subject to an abuse of discretion standard of review, but the court's discretion is limited by the rules of evidence and the applicable case law." Horwitz v. State , 189 So.3d 800, 802 (Fla. 4th DCA 2015).

"Generally, a witness' opinion as to the credibility, guilt, or innocence of the accused is inadmissible." Jackson v. State , 107 So.3d 328, 339 (Fla. 2012). Likewise, "[i]t is well established that police officers cannot give their opinions as to the truthfulness of a defendant." Shannon v. State , 753 So.2d 148, 149 (Fla. 3d DCA 2000). For example, it is improper for a police officer to testify that, on the basis of his training and experience, he was able to tell that the defendant was untruthful during an interrogation. Id. at 149-50.

It is also improper for a prosecutor to advise the jury to apply an officer's lay testimony on the topic of body language in evaluating the defendant's credibility. See Miller v. State , 782 So.2d 426 (Fla. 2d DCA 2001). In Miller , the prosecutor asked an officer if he had any training in determining whether a person was being truthful or deceitful based on the person's body language. Id. at 431. Over defense objection, "the officer explained how one could distinguish truth from falsehood by watching the movement of the speaker's eyes." Id. Although the officer was not presented by the state as an expert, the trial court "allowed this testimony as part of the officer's 'qualifications.' " Id.

In Miller, the prosecutor implied during closing argument that the officer had provided expert testimony on body language, and suggested that the jury should apply the officer's testimony in evaluating the defendant's credibility in a videotaped interrogation:

You heard Deputy Bradish tell you he has had specific training in body language regarding interrogation techniques. You look at where [the defendant's] eyes go. Stop the video and look at it. Where do his eyes go when he's asked about his knowledge of that sign.

782 So.2d at 431.

The Second District held that this argument was improper, reasoning:

The officer had not been qualified by the trial court as an expert, and lay witnesses may not normally testify in terms of inferences or opinions. In closing, not only did the prosecutor imply that the deputy's testimony amounted to expert testimony, she advised the jury to apply the officer's "expertise" in evaluating [the defendant's] credibility.

Id. (citation omitted).

Several courts outside of Florida have found that officers may not testify as to their interpretation of body language to determine whether a person was being truthful, as such testimony invades the province of the jury. See State v. Barr , 123 Wash.App. 373, 98 P.3d 518, 521-23 (2004) (an officer's testimony regarding his observations of the defendant's statements and body language during an interrogation, as informed by the officer's training to look for verbal and nonverbal clues that a person was being deceptive, invaded the province of the jury by impermissibly commenting on the defendant's guilt); State v. Reimer , 189 Ariz. 239, 941 P.2d 912, 913-14 (Ariz. App. 1997) (whether considered as expert or lay opinion, an officer's testimony as to the credibility of the victim's out-of-court statement was not admissible, despite the officer's training and experience in interpreting body language to distinguish people who are telling the truth from people who are lying, because "courts have expressly determined that neither expert nor lay witnesses assist the trier of fact to understand the evidence or to determine a fact in issue when they merely opine on the truthfulness of a statement by another witness"); United States v. Farrar , 25 M.J. 856, 858 (A.F.C.M.R. 1988) ("[T]he interpretation of body language by a witness cannot be offered as expert testimony on 'truth telling.' "); United States v. Wagner , 20 M.J. 758, 761 (A.F.C.M.R. 1985) (holding that the trial court erred in admitting an officer's expert testimony that the defendant was telling the truth when he confessed, because "[t]he rule remains that, absent unusual circumstances, opinion testimony on whether or not to believe a particular witness' testimony simply is not deemed helpful to the factfinder, for the factfinders are perfectly capable of observing and assessing a witness' credibility"); United States v. Clark , 12 M.J. 978, 979 (A.F.C.M.R. 1982) ("While interpretation of 'body language' may be a valid interviewing technique, it has no place in the courtroom.").

Here, the trial court abused its discretion in allowing the detective to testify about body language and mannerisms that indicated deception. This testimony constituted an inadmissible opinion on credibility, thereby invading the province of the jury. This case fits squarely within the rule that opinion evidence on the truthfulness of a defendant is inadmissible.

A jury ordinarily needs no assistance in deciding whether a particular witness or defendant is to be believed. While the detective did not express an ultimate opinion as to whether appellant was being truthful during the interrogation, the detective's testimony was clearly calculated to imply that appellant's body language showed he was being deceptive. The detective testified as to mannerisms that he claimed were indicative of deception, including avoiding eye contact, looking down, and burying one's face in one's hands. Immediately thereafter, the jury saw an interrogation video in which appellant exhibited those exact mannerisms. Thus, the effect of the detective's testimony was to offer a back door opinion as to appellant's credibility.

Whether characterized as lay opinion or expert opinion, the detective's testimony concerning body language was irrelevant and improperly invaded the province of the jury. Therefore, we find that the trial court should have excluded the detective's testimony concerning body language indicative of deception.

The error was not harmless beyond a reasonable doubt. See State v. DiGuilio , 491 So.2d 1129 (Fla. 1986). In arguing that the error was harmless, the state maintains that the evidence against appellant was "overwhelming." However, this is not the correct test. See Ventura v. State , 29 So.3d 1086, 1089 (Fla. 2010). Instead, the question is whether there is no reasonable possibility that the error contributed to the conviction. DiGuilio , 491 So.2d at 1135.

Here, appellant's theory of defense was that his use of deadly force was justified. Appellant's defense thus depended on his claim in the interrogation that the victim cut him with a knife and tried to kill him. Although the video of the incident supports the state's theory that appellant was the initial aggressor of the fight, the video does not show the entire fight and does not refute appellant's claim that the victim attempted to cut him. The detective's opinion on body language severely damaged appellant's credibility, even if the prosecutor did not rely upon this testimony in closing argument.

Moreover, the fact that the jury was given a standard instruction on weighing the testimony of witnesses does not render the error harmless, as the detective's testimony still might have affected the jury's determination of appellant's veracity. The standard instruction on weighing the evidence, which is primarily focused on factors the jury should consider in weighing live testimony, would not have cured the improper opinion testimony implying that appellant was being deceptive in his interrogation.

Accordingly, we reverse appellant's conviction and sentence and remand this cause for a new trial. Given this disposition, we need not decide appellant's second issue regarding the state's comments on its burden of proof.

Reversed and Remanded.

May and Kuntz, JJ., concur.

      For ease of reference, we will refer to this individual throughout the opinion as "the victim."

      As in Miller , the detective in this case was not formally offered as an expert at trial. However, we find it unnecessary to decide whether his testimony on body language constituted expert testimony or lay testimony.


author: Levine, J.

text:
    STATE of Florida, Appellant, v. T.M., a child, Appellee.
    No. 4D17-2735
    District Court of Appeal of Florida, Fourth District.
    [June 27, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellee.
   Levine, J.

It was 8:00 p.m. when a Lauderhill detective observed appellee and two other males standing in front of a vacant townhouse. The detective, who was on routine patrol, continued to watch appellee and the other two individuals. After five minutes, the detective pulled his car up beside appellee and the other two individuals, who remained standing outside the vacant house. The detective greeted the group using a "soft voice."

Upon seeing the detective approach, appellee and the other two individuals fled. They ran through the parking lot as the detective commanded them to stop. But they did not stop-they kept running. During the pursuit, the detective saw appellee reach into his pocket and retrieve a clear plastic bag which he threw onto the ground. The detective finally caught up with appellee, took him into custody, and recovered the plastic bag. The contents of the bag tested positive for cocaine.

At the hearing on appellee's motion to suppress, the detective testified that he had participated in "many operations" in and near the townhouse community where he saw appellee the day of the arrest. Based on his experience as a narcotics officer for several years and the totality of the circumstances, the detective believed the plastic bag discarded by appellee contained narcotics as soon as he saw it. He explained that, in his experience, clear plastic bags like that one are "indicative of holding narcotics."

After the suppression hearing, the trial court granted appellee's motion to suppress the bag as the fruit of an unlawful search and seizure. We, however, conclude that the trial court erred in granting the motion to suppress and as such we reverse and remand.

We review an order on a motion to suppress by applying a mixed standard of review, deferring to the trial court's factual determinations but reviewing de novo its application of the law to the facts of the case. Lee v. State , 868 So.2d 577, 579 (Fla. 4th DCA 2004).

The trial court found that the detective lacked reasonable suspicion to stop appellee. This conclusion was based in part on the trial court's erroneous interpretation of R.R. v. State , 137 So.3d 535 (Fla. 4th DCA 2014). The state contends that there was reasonable suspicion. Alternatively, the state argues that even if there was no reasonable suspicion, appellee's flight after an officer's command to stop and his subsequent abandonment of the contraband does not constitute an unlawful seizure.

We agree with the state's alternate theory that contraband abandoned during flight from the police is not fruit of an improper seizure and thus not subject to suppression. Due to our agreement, there is no need to determine if there was in fact reasonable suspicion to stop appellee before he discarded the bag.

Both Florida and federal courts have held that reasonable suspicion can arise after a suspect's flight and that illegal contraband abandoned during flight from police is not properly suppressed as the fruit of a seizure. In California v. Hodari D. , 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the United States Supreme Court held that, for Fourth Amendment purposes, the defendant was not seized by police until an officer physically caught up with and restrained him after a chase. As such, the rock of cocaine the defendant tossed away mid-run was not the fruit of any unlawful seizure and should not have been suppressed. Id. Moreover, the Supreme Court in Hodari D. noted that, if the officer recognized the rock as a rock of cocaine at the time it was discarded, reasonable suspicion would have attached at that point anyway. Id. at 624. Hodari D. is controlling law in this state pursuant to the conformity clause of the Florida Constitution. See art. I, § 12, Fla. Const. ("The right of the people to be secure ... against unreasonable searches and seizures ... shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.").

This court has reached similar conclusions when a defendant discards an item of contraband while fleeing from police. In Mosley v. State , 739 So.2d 672, 674 (Fla. 4th DCA 1999), a defendant began to walk away when he saw police approaching him. The officers pursued the defendant and yelled for him to stop, whereupon he reached into his pocket and discarded an object that both officers immediately recognized as a cocaine pipe. Id. We held that the officers developed reasonable suspicion once they recognized the pipe. Id. at 675. We also reversed a suppression order in State v. Grant , 845 So.2d 984, 985 (Fla. 4th DCA 2003), because the officer immediately recognized a crack pipe discarded by the defendant.

Based on Hodari D. , Mosley , and Grant , the trial court erred in suppressing the plastic bag as the fruit of an unlawful seizure. Once appellee abandoned the bag-which the detective, based on the totality of the circumstances and his experience, believed contained drugs-the police could lawfully seize it and later introduce it into evidence. For the foregoing reasons, we reverse.

Reversed and remanded .

Warner and Taylor, JJ., concur.

      While not dispositive of the issue on appeal, it appears that the trial court misread R.R. to create a "holiday season exception" to what circumstances give rise to reasonable suspicion. In R.R. , we merely noted that the defendant was seen walking around cars in a parking lot four days after Christmas. Our opinion lists the holiday season and Christmas as potential factual circumstances that the trial court could look at to determine if there was "sufficient reason to conduct an investigatory stop"-not as factors that would lower the reasonable suspicion bar ab initio or create a new exception to the quantum of evidence needed to meet the reasonable suspicion standard. Id. at 539.