author: SALARIO, Judge.

text:
    Fred MEYERS and Ninibeth Meyers, Appellants, v. Bonneva SHONTZ, Appellee.
    Case No. 2D17-1681
    District Court of Appeal of Florida, Second District.
    Opinion filed July 13, 2018.
    Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, for Appellants.
    Robert Hitchens of Hitchens and Hitchens, P.A., St. Petersburg, and Frank DiCosola of Frank DiCosola, P.A., Pinellas Park, for Appellee.
   SALARIO, Judge.

A car owned by Fred Meyers and driven by Ninibeth Meyers rear-ended a car in which Bonneva Shontz was a passenger. Ms. Shontz sued the Meyerses for negligence, and a jury returned a defense verdict. Ms. Shontz moved for a new trial, which the trial court granted. The Meyerses appeal. Because the trial court failed to apply the correct legal standard to the motion for new trial-which is whether the jury's verdict was against the manifest weight of the evidence-we reverse and remand for reconsideration.

I.

On July 9, 2014, Ms. Meyers was driving down Park Boulevard in Seminole. It had been raining on and off, and the roads were wet. As she neared the intersection of Park and Starkey Road, she saw a car stop in front of her. She hit the brakes, but there was no time to stop. Her car hit the car in front of her. Ms. Shontz was a passenger in that car, which was driven by her husband. The Shontzes' car was pushed into a car in front of it, which was driven by Nicholas Bozick. The Meyerses' car (a 2005 Chevy Aveo) was totaled. The Shontzes' car (a 2013 Chevy Equinox) had to have its rear bumper replaced. Mr. Bozick's car (a 2013 Toyota Highlander) had about $740 of damage. No one went to the hospital on the day of the accident.

Ten months later, Ms. Shontz sued Mr. and Ms. Meyers for physical injuries she says she suffered in the accident. Her complaint alleged that Ms. Meyers negligently caused the wreck, that the wreck caused Ms. Shontz's injuries, and that Mr. Meyers was vicariously liable for Ms. Meyers's negligence under the dangerous instrumentality doctrine. The Meyerses denied those allegations and, in addition, contended that Mr. Shontz negligently operated his vehicle and that his negligence caused the accident. The case went to discovery and, after that, to trial.

Whether Ms. Meyers negligently caused the accident and whether the accident caused Ms. Shontz's injuries were hotly disputed at trial. Ms. Shontz's theory was that as the rear driver, Ms. Meyers was necessarily negligent, that Ms. Meyers was driving too fast on a rainy day, and that the accident injured Ms. Shontz's back or aggravated her existing back problems. The Meyerses, on the other hand, argued that the Shontzes' car suddenly changed lanes and left Ms. Meyers without room to stop. They also contended that Ms. Shontz's back problems were not caused by this accident, but rather by scoliosis-a condition involving a curvature of the spine-degenerative changes in the spine, a different car accident in 1995, or other incidents earlier in Ms. Shontz's life.

The evidence on the issue of negligence came from three witnesses-Mr. Shontz, Mr. Bozick, and Ms. Meyers. Mr. Shontz, who was driving the Shontzes' car, testified that before the accident he and Ms. Shontz left a Wal-Mart Neighborhood Market and drove a couple of miles on Park Boulevard toward Starkey Road. When he got to the intersection of Park and Starkey, he stopped for a red light behind Mr. Bozick's car, where he sat for "about five seconds or so." He heard skidding tires and told Ms. Shontz to brace herself right before they were hit by the Meyerses' car and pushed into Mr. Bozick's car. Mr. Shontz talked to Ms. Meyers at the accident scene, and she said that Mr. Shontz had cut her off. At trial, Mr. Shontz could not remember whether he changed lanes before the accident happened.

Mr. Bozick's testimony was a little more complicated. He testified that after he stopped at the light at Park and Starkey, he saw the Shontzes' car pull in behind him and stop. He initially could not say whether the Shontzes' car changed lanes into the lane he was in, but after being presented with testimony he gave at a pretrial deposition he admitted that the Shontzes' car had switched lanes from the right into the lane his car occupied. He said, however, that the lane change was not "quick" or a "zip, zip type thing." He was asked on direct examination about how much time passed between when he stopped at the light and when the accident happened, and he testified both that it was "a couple of seconds" and "three to five seconds." He then was asked on cross-examination whether it was three to five seconds between his seeing the Shontzes' car behind him and the accident, to which he answered "three to seven seconds or so-maybe a little bit longer" but acknowledged that "it's difficult to give time." He also testified that he thought that Ms. Meyers was "going too fast for the road conditions at that time."

Ms. Meyers testified that before the accident she was driving down Park at about thirty-five miles per hour. Although Park has a forty-five-mile-per-hour speed limit in that area, she was driving more slowly because the streets were wet. She saw the Shontzes' car because she was traveling in the same lane behind it. At some point, Ms. Meyers moved one lane to the left and the Shontzes remained in the lane they were in. That situation prevailed for a few minutes. As Ms. Meyers approached Starkey Road, the Shontzes' car moved into her lane, leaving only one car length between her car and theirs. She testified that she saw the Shontzes' car coming into her lane "all of a sudden" and that "all of a sudden it just came in there." Ms. Meyers applied the brakes and tried to steer into a different lane but did not have enough time to avoid an accident.

The evidence on causation came from Ms. Shontz and several medical professionals. Much of it is in conflict. What seems clear is that Ms. Shontz did not have any pain or, apart from stress, other symptoms either at the scene of the accident or immediately thereafter. She testified that three to four days later, however, she had a headache and neck and back stiffness. She visited her chiropractor five days after the accident, complaining of moderate pain throughout her back and mild pain in her neck. He gave her chiropractic treatments. Ms. Shontz began seeing an orthopedic surgeon about a month after the accident. An MRI revealed disc bulges, protrusions, and herniations throughout her spine. Her complaints grew more severe, including pain and numbness in her left leg. She testified at trial that she is no longer able to do things she enjoyed doing before the accident.

It is also clear that Ms. Shontz had issues with her back long before the accident. She was diagnosed with scoliosis at twenty-one. There was evidence at trial that the curvature of the spine that comes with scoliosis can create wedging on the vertebrae, inflammation of the nerves, arthritis, and degenerative changes that all could cause the kinds of symptoms of which Ms. Shontz complained. She has received chiropractic treatment on and off since her diagnosis. Ms. Shontz was also in a bad car accident in 1995. She was a passenger in a car her son was driving on Interstate 275 when another car came over two lanes and struck her son's car on her side, causing it to spin around and slam into a concrete divider. Afterward, she had pain in her neck, shoulder, and lower back and suffered headaches. She treated with her chiropractor and neurologist and was told by her doctors that she had suffered a partial permanent injury as a result of the accident. She hired an attorney, brought a claim, and settled.

There was no MRI or other objective evidence describing the condition of Ms. Shontz's back before the accident and thus no ready way to say that any particular physical condition in her spine (e.g., a bulge or herniation) did not exist before the accident but did exist after. Ms. Shontz's theory that the accident caused her injuries was based on her own subjective complaints of pain and physical limitations after the accident that she said did not exist before. Her orthopedic surgeon testified that her complaints were corroborated by the results of the postaccident MRI and opined that she suffered permanent injuries to her back as a result of the accident. Her chiropractor opined that she suffered a "classical whiplash injury" to her neck and back. Ms. Shontz testified that her symptoms, need for treatment, and limitations on her physical abilities were greater after the accident than they were before. She had, in her words, reached a "new normal" after the accident that was different from her old normal before it.

The Meyerses, in contrast, theorized that Ms. Shontz's symptoms were not caused by the accident, but were rather the result of her scoliosis, her 1995 accident, various other incidents, and degeneration in her spine. An orthopedic surgeon who testified on their behalf as an expert witness conducted a compulsory medical examination and opined that the accident with Ms. Meyers neither caused any back injury to Ms. Shontz nor aggravated any preexisting back injury. He theorized that the findings from the postaccident MRI took decades to develop and did not show any sign of being related to trauma, such as would occur in a car accident. Based on Ms. Shontz's complaints of pain subsequent to the accident, the surgeon testified that he believed that she suffered a sprain or strain to the neck which would have healed within months with minimal treatment.

The Meyerses supplemented the expert testimony with evidence that Ms. Shontz had visited chiropractors for problems with her neck and back many times in the years leading up to the accident. This included evidence that Ms. Shontz visited the chiropractor in the two months before the accident complaining of severe back pain, problems with her pelvis and left foot, and issues with walking. Ms. Shontz testified that she did not remember these visits. The Meyerses also presented evidence of other events from which one might infer that Ms. Shontz hurt her back, including an event in December 2000 in which she reported to workers' compensation that her spinal cord and wrist were affected during an incident at work, an event in April 2004 in which she reported to workers' compensation an incident during which she "jammed" her "shoulder/neck," an event in December 2006 in which she hurt herself doing a cartwheel and had to visit the chiropractor, an event in July 2008 in which she fell into water and had to visit the chiropractor, and an event in May 2009 in which she reported to workers' compensation that she had suffered a sprain or tear of "multiple body parts." Ms. Shontz testified at trial that she did not remember several of these events, and she admitted that she did not disclose them in answers to interrogatories. There was evidence that at least some of these events were not disclosed to her treating physicians.

After the parties finished presenting evidence, the trial court instructed the jury on the elements of a claim for negligence and gave the jurors the standard instructions on both negligence and causation. See Fla. Std. Jury Instr. (Civ.) 401.4, 401.12(a). In sum, it told the jury that negligence was a failure to use such care as a reasonable person would use under similar circumstances and that negligence was a legal cause of loss if it produces or contributes substantially to producing such loss. The jury was given a verdict form consisting of several special interrogatories. The first asked, "Was there negligence on the part of Ninibeth Meyers on July 9, 2014, which was a legal cause of loss, injury, or damage to Plaintiff, Bonneva Shontz?" The interrogatory thus combined the issues of negligence and causation into a single question, allowing the jury to answer "yes" if it found both elements proved and allowing it to answer "no" if it found either not proved. The jury answered "no," which resolved the case with a complete defense verdict.

Ms. Shontz filed a motion for a new trial in which she argued that the evidence overwhelmingly established both negligence and causation, stating that there was no evidence to support Ms. Meyers's sudden-lane-change theory and that all doctors, including the defense expert, agreed that Ms. Shontz had suffered some physical injury. The Meyerses filed a memorandum in opposition in which they asserted that Ms. Meyers had testified that the Shontzes' car had suddenly changed lanes in front of hers, that Mr. Bozick's testimony was to similar effect, and that Mr. Bozick testified that the Shontzes' car changed lanes three to five seconds before the accident. She further argued that the trial evidence permitted the jury to find that the accident did not cause Ms. Shontz any injury and that the defense expert's opinion was based on the assumed truthfulness of Ms. Shontz's postaccident complaints, which the jury was free to reject. While the motion for new trial was pending, the trial court entered a judgment in the Meyerses' favor in accord with the verdict. Shortly thereafter, and without conducting a hearing, the trial court granted Ms. Shontz's motion for new trial. In relevant part, its order read as follows:

The court has reviewed the Motion and the Court file and the Defendants' Response to the Plaintiff's Motion for New Trial, and is otherwise duly advised on the premises, and finds that the Defendant's response contains a representation of the testimony from Nicholas Bozick submitted at trial which is significantly different from the Court's recollection as to liability. Therefore, it is hereby
ORDERED as follows:
1. The Plaintiff's Motion for New Trial is hereby GRANTED on the basis of liability, the Court is not ruling on the theory of causation.

(Emphasis added.) This is the Meyerses' timely appeal from that order. See Fla. R. App. P. 9.110(a)(3), 9.130(a)(4).

II.

The Meyerses argue that by deciding to award a new trial on the sole basis that its recollection of Mr. Bozick's testimony differed from Ms. Meyers's recitation of it in the response to the motion for new trial, the trial court applied the wrong legal standard to Ms. Shontz's motion for a new trial. The legal question the trial court was required to but did not answer, they argue, is whether the jury's verdict was against the manifest weight of the evidence. This point is well taken.

A trial court may order a new trial when the jury's verdict is against the manifest weight of the evidence. Meadowbrook Meat Co. v. Catinella, 196 So.3d 373, 373 (Fla. 2d DCA 2015). Although a trial judge enjoys broad discretion to grant a new trial under the manifest weight ground, that discretion is neither absolute nor unreviewable. See Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309, 1314 (Fla. 1986) ("A trial court's discretion, while broad, is not unbridled."). A trial judge is not free to behave as a super-juror by disregarding a jury's verdict simply because the judge would have rendered a different one had it been the judge's choice to make. See Brown v. Estate of Stuckey, 749 So.2d 490, 495 (Fla. 1999) ; Phar-Mor of Fla., Inc. v. Steuernagel, 550 So.2d 548, 550 (Fla. 2d DCA 1989). Rather, a trial judge's discretion is properly exercised only when the evidence is "manifestly weighted to one side or the other." Phar-Mor, 550 So.2d at 550 (emphasis added); see also State Farm Mut. Auto. Ins. Co. v. Caboverde, 65 So.3d 46, 46 (Fla. 3d DCA 2011) ("Where the 'evidence was not manifestly weighted to either side,' a trial judge's decision to grant a new trial may be reversed." (quoting Hernandez v. Feliciano, 890 So.2d 401, 404 (Fla. 5th DCA 2004) ) ). The trial judge's discretion is thus not freewheeling but is instead a "check against a jury that has reached an unjust decision on the facts." Stuckey, 749 So.2d at 495.

In deciding whether the evidence manifestly weighs against the verdict, the trial court must examine all of the evidence-giving consideration to its weight and credibility. See Van v. Schmidt, 122 So.3d 243, 260 (Fla. 2013) ; Smith v. Brown, 525 So.2d 868, 869 (Fla. 1988). If it decides to order a new trial, its order must state the reasons why so that its decision can be reviewed on appeal in a meaningful way. See Fla. R. Civ. P. 1.530(f) ; Stuckey, 749 So.2d at 497-98. If the trial court has fulfilled these functions, we will ordinarily review its order only to see if the trial court abused its discretion-making reversal proper only if reasonable people could not disagree that the trial court got it wrong-out of deference to the trial court's superior ability to recall, review, and evaluate what happened at the trial. See Van, 122 So.3d at 253-54 (citing E.R. Squibb & Sons, Inc. v. Farnes, 697 So.2d 825, 826-27 (Fla. 1997) ).

If the trial court's order is based on an error of law, however, we do not afford it that kind of deference because the trial court's ability to consider and resolve legal issues is not superior to our own. See Van, 122 So.3d at 258 (quoting Tri-Pak Mach., Inc. v. Hartshorn, 644 So.2d 118, 119-20 (Fla. 2d DCA 1994) ); Wal-Mart Stores, Inc. v. Wittke, 202 So.3d 929, 931 (Fla. 2d DCA 2016). Accordingly, "an appellate court properly applies a de novo standard of review to a trial court's conclusions of law in an order granting a new trial based on the manifest weight of the evidence, giving no deference to the trial court's legal conclusions." Van, 122 So.3d at 246.

Here, the trial court's stated ground for granting a new trial shows that it applied an incorrect legal standard to Ms. Shontz's motion. The reason it gave was that its recollection of Mr. Bozick's testimony about the accident differed from the statements in the Meyerses' response to the new trial motion. It granted a new trial, in substance, because it thought one witness testified differently than a party said he did. That is not the exercise the correct legal standard requires a trial court to conduct. And nothing in the order or elsewhere in our record suggests that the trial court here actually performed the function the standard requires-namely, to consider all of the evidence, including its weight and credibility, and to decide whether it manifestly weighed in Ms. Shontz's favor. The trial court's order was thus premised on an error of law, and we therefore owe no deference to its decision to grant a new trial. Cf. Collett v. State, 28 So.3d 224, 225-26 (Fla. 2d DCA 2010) (reversing judgment in criminal case when, in denying a motion for new trial, the trial court applied an incorrect "sufficiency of the evidence" standard instead of the correct "contrary to the law or weight of the evidence" standard); Geibel v. State, 817 So.2d 1042, 1044-45 (Fla. 2d DCA 2002) ("[A] trial court's failure to apply the correct legal standard to a motion for new trial is a legal error subject to de novo review.").

Two aspects of the trial court's order make the point clear. The first is that by relying solely on a discrepancy in recollection about unspecified testimony by a single witness, the order necessarily implies that the trial court did not consider the totality of the evidence on the question of whether Ms. Meyers was negligent. Mr. Bozick was, of course, not the only witness to testify about the circumstances under which the accident happened. Ms. Meyers also testified, and her testimony supported the defense theory that the accident happened not because she was negligent, but because Mr. Shontz suddenly changed lanes leaving her without room to stop. Mr. Shontz testified as well, and he said, among other things, that he could not remember whether he changed lanes and that Ms. Meyers stated at the scene, consistent with her theory at the trial, that Mr. Shontz cut her off. Furthermore, Mr. Bozick's testimony concerning the amount of time that passed between the Shontzes' car coming to a stop and the accident was shifting-ranging between as few as two seconds and as many as seven. The trial court's order reflects that it thought Mr. Bozick testified differently than argued by the Meyerses in some respect and not that it engaged in the analysis of the trial evidence that the correct legal standard requires. See Smith, 525 So.2d at 870 ("[T]he trial judge must necessarily consider the credibility of the witnesses along with the weight of all of the other evidence. The trial judge should only intervene when the manifest weight of the evidence dictates such action." (citation omitted) ).

Ms. Shontz argues that all of this is academic because she gets the benefit of a presumption that Ms. Meyers was negligent because she was the rear driver. And it is doubtless true that "where a defendant runs into the rear of plaintiff's car while plaintiff is stopped for a traffic light or at an intersection, there is a presumption of negligence of the defendant." Birge v. Charron, 107 So.3d 350, 359 (Fla. 2012) (quoting Bellere v. Madsen, 114 So.2d 619, 621 (Fla. 1959) ). But the presumption is a rebuttable presumption affecting only the burden of production. As the supreme court has explained,

where a set of facts is produced that "fairly and reasonably tends to show" that the presumption is misplaced or that the "real fact is not as presumed," the presumption is rebutted and all issues of disputed fact regarding negligence and causation should be submitted to the jury to make a finding of fault without the aid of the presumption.

Birge, 107 So.3d at 360 (quoting Eppler v. Tarmac Am., Inc., 752 So.2d 592, 594, 595-96 (Fla. 2000) ). Thus, "where evidence is produced from which a jury could conclude that the front driver in a rear-end collision was negligent in bringing about the collision," the question of negligence should be submitted to the jury without regard to the presumption. Cevallos v. Rideout, 107 So.3d 348, 349 (Fla. 2012).

Assuming without deciding that the sufficiency of the evidence to rebut the presumption is within the direct scope of our review in this appeal, we have little difficulty concluding that the evidence was sufficient here-at least for the purposes of considering whether the trial court's legal error in addressing the motion for new trial was harmless in light of Ms. Shontz's claimed entitlement to an evidentiary presumption that might render its error inconsequential.

Florida courts, including our own, have recognized that evidence of an unexpected lane change may be sufficient to rebut the presumption of rear-driver negligence. See Jiminez v. Faccone, 98 So.3d 621, 624 (Fla. 2d DCA 2012) ; Alford v. Cool Cargo Carriers, Inc., 936 So.2d 646, 649-50 (Fla. 5th DCA 2006). Here, Ms. Meyers testified that the Shontzes' car suddenly changed lanes as she approached the intersection leaving her without sufficient room to stop, which is consistent with what Mr. Shontz testified she said at the scene. Depending on one's interpretation, aspects of Mr. Bozick's testimony are consistent with Ms. Meyers's version of events. That evidence, if credited by a jury, would fairly and reasonably tend to show that Ms. Meyers was not negligent. The trial court submitted the case to the jury on that and other evidence, and the jury had the opportunity to assess it. The trial court's job on Ms. Shontz's motion for new trial thus was to determine whether the manifest weight of the evidence was that Ms. Meyers was not negligent. The trial court focused solely on its recollection of Mr. Bozick's testimony and, in so doing, failed to make the legally correct inquiry.

The second facet of the trial court's order that shows that it failed to apply the correct legal standard to Ms. Shontz's motion for new trial is that the order explicitly says that the trial court did not consider the issue of causation. The special interrogatory upon which the jury decided the case asked both whether Ms. Meyers was negligent and whether any negligence by Ms. Meyers was a legal cause of loss to Ms. Shontz. As a matter of logic, then, the jury was entitled to decide the case in the Meyerses' favor on the basis of negligence, causation, or both. No one knows how the jury sliced the onion on these two issues because both were lumped into a single question. What that means here is that the legal standard governing Ms. Shontz's new trial motion-which mandates consideration of whether the verdict is against the manifest weight of the evidence-required the trial court to consider not only the evidence on the issue of negligence, but also the evidence on the issue of causation. See, e.g., Hernandez v. Gonzalez, 124 So.3d 988, 990 (Fla. 4th DCA 2013) (affirming order denying new trial where negligence was conceded and causation was disputed but where the jury answered a special interrogatory incorporating both issues in the negative). By deciding that it did not need to consider causation at all, the trial court again applied the wrong legal standard to Ms. Shontz's motion for a new trial.

The trial court's mistake might be attributed to imprecision in identifying operative legal concepts in the new trial order. The trial court instructed the jury on "negligence" (i.e., whether Ms. Meyers breached a duty of care) and "legal cause" (i.e., whether Ms. Meyers's breach of duty, if any, caused Ms. Shontz any injury) and asked the jury to answer a single interrogatory directed to both issues. For a defendant to be liable on a negligence claim, of course, there must be both negligence and causation. See Whritenour v. Thompson, 145 So.3d 870, 873 (Fla. 2d DCA 2014) (stating that the "elements of a negligence action are the existence of a duty, a breach of the duty, a causal connection between the conduct and the resulting injury, and actual damages"); see also McCain v. Fla. Power Corp., 593 So.2d 500, 502-03 (Fla. 1992) ("As is obvious, a defendant might be under a legal duty of care to a specific plaintiff, but still not be liable for negligence because proximate causation cannot be proven."); Schwartz v. Wal-Mart Stores, Inc., 155 So.3d 471, 473 (Fla. 5th DCA 2015) ("Causation is an essential element of negligence, and a plaintiff is entitled to recover only for injury, loss, or damage caused by a defendant's negligence."). Mr. Bozick's testimony went solely to the issue of Ms. Meyers's alleged negligence. Yet in granting a new trial based exclusively on its recollection of that testimony, the trial court said that it was considering evidence of "liability" and ordering a new trial on that basis. The apparent assumption in the trial court's order is that proof that Ms. Meyers was negligent is all that was required to prove liability in this case, and the rest was just a question of determining the amount of damages caused by her negligence. But even if the jury had found that Ms. Meyers was negligent, she would still not be liable to Ms. Shontz if the jury also found that Ms. Meyers's negligence was not the cause of any of the injuries Ms. Shontz claims to have suffered. Thus, to order a new trial on the basis that the "liability" portion of the verdict was against the manifest weight of the evidence, the trial court had to inquire into the manifest weight of the evidence on the issue of causation because causation was something Ms. Shontz had to prove to establish "liability."

At oral argument, Ms. Shontz argued that the verdict could not have been based on causation or, alternatively, that a verdict on causation would incontestably be against the manifest weight of the evidence because, at a minimum, Ms. Shontz incurred bills for diagnostic testing as a result of the accident. And to be sure, diagnostic testing that is reasonably necessary to determine whether an accident caused a plaintiff's injuries would ordinarily be considered a form of loss caused by the accident. See Blanford v. Polk County, 410 So.2d 667, 669 (Fla. 2d DCA 1982) ; see also Sparks-Book v. Sports Auth., Inc., 699 So.2d 767, 768 (Fla. 3d DCA 1997) (reversing order denying motion for new trial where "[a]t a minimum, the plaintiff was entitled to recover for those medical expenses incurred for any diagnostic testing which was reasonably necessary to determine whether the accident caused her injuries"). But the courts have also recognized an exception to this general rule when "sufficient evidence is presented at trial regarding certain factors, including but not limited to pre-existing injuries with extensive treatments, lack of candor with treating physicians, videotapes that show actual physical capabilities, and expert medical opinions which conflict as to causation." Hernandez, 124 So.3d at 991-92 ; see also Finkel v. Batista, 202 So.3d 913, 916 (Fla. 3d DCA 2016) ("Examples of such exceptions include lack of candor with treating physicians and conflicting medical opinions on whether the accident caused any injury."); Schwartz, 155 So.3d at 473-74 (same). Thus, in Department of Transportation v. Rosario, 782 So.2d 927, 928 (Fla. 2d DCA 2001), we reversed an order granting a new trial to a plaintiff claiming back injuries in an automobile negligence case-notwithstanding the fact that the plaintiff had incurred expenses for diagnostic testing-where there was evidence that the plaintiff had back problems and extensive treatments predating the accident, the expert testimony on whether the accident caused the back injuries was in conflict, there was evidence that the plaintiff had not disclosed prior treatments and a prior accident to his treating physicians, and a videotape entered into evidence depicted his on-the-job capabilities.

There is some substantially similar evidence in this case. There was a history of prior back problems, a prior automobile accident, prior work-related incidents, and years of treatment for issues related to the back. The testimony of the parties' medical experts as to whether the accident caused injuries to Ms. Shontz's back was in conflict. There was evidence that certain incidents and treatments were not disclosed to Ms. Shontz's treating physicians. And there was evidence that certain incidents and treatments were not disclosed in answers to interrogatories that called for those disclosures. Thus, the exception to the general rule was in play in this case, and the jury could reasonably have decided in light of these facts that a finding of no causation was appropriate. See Schwartz, 155 So.3d at 474 (holding that the exception was implicated where expert testimony on the question of causation was in conflict).

Ms. Shontz also pointed out at oral argument that the defense medical expert testified that although the accident did not cause Ms. Shontz's back injuries, it did cause soft-tissue injury for which some medical treatment was appropriate. But that fact did not make it impossible for the jury to find that there was no causation. To begin with, the defense expert's testimony was based on his belief that Ms. Shontz's complaints about her postaccident symptoms were truthful. But here, there was evidence from which a jury might have inferred that Ms. Shontz's complaints were not truthful-including her history of preexisting back problems and her nondisclosure of certain other incidents that might be expected to result in injury to the back-which in turn could have led it to a finding of no causation. See, e.g., Finkel, 202 So.3d at 916 (holding that a defense expert's admission that diagnostic testing was necessary was based on an assumption the plaintiff's complaints were truthful but that "[i]t was within the province of the jury to find that [the plaintiff] was not truthful"). Furthermore, the theory that the accident caused Ms. Shontz a soft-tissue injury is a different theory from the one Ms. Shontz presented at trial. At trial, Ms. Shontz's theory of causation was that the accident caused an injury to her spine or aggravated a preexisting condition in her spine. On this record, it is possible that the jury rejected that theory, and if it did so, we cannot, at least so far as our review of this order is concerned, fault the jury for not considering a different theory of causation that Ms. Shontz never asked it to consider.

Having determined that the trial court applied the wrong legal standard to Ms. Shontz's motion for a new trial, we must consider whether to remand for reinstatement of the judgment or for the trial court to reconsider the motion for new trial. Where, as here, the trial court's mistaken decision on a new trial motion hinges on an error of law, the dispositive question is "whether the trial court would have granted a new trial but for the error of law." Van, 122 So.3d at 260 ; see also Wittke, 202 So.3d at 931. If the answer to that question is no, we remand for reinstatement; if we cannot tell what the trial court would have done but for the error, we remand for reconsideration. Van, 122 So.3d at 260. On our cold record, and in view of the conflicts in the evidence bearing both on negligence and causation, this looks like a case where it may be hard to say that the manifest weight of the evidence was with either party. We were not at the trial, however, and "are unable to ascertain from [our] review of the record whether the trial court would have reached the same result had it focused on the evidence and considered the credibility of witnesses," which is what the manifest weight of the evidence standard requires. Id. at 261 ; see also Buitrago v. Feaster, 157 So.3d 318, 320 (Fla. 2d DCA 2014) (remanding for reconsideration where the trial court failed to apply the manifest weight of the evidence standard to an allegedly inadequate award of noneconomic damages). We therefore give the trial court the opportunity to reconsider the motion.

III.

Our decision today should not be understood as insisting that an order granting a new trial on the ground that the verdict was against the manifest weight of the evidence contain specific magic words to avoid a reversal. This is just a case where the trial court's order itself demonstrates that it applied an incorrect legal standard to a new trial decision. Cf. Geibel, 817 So.2d at 1045 (explaining, in a criminal case, that "a trial court is not compelled to use 'magic words' when ruling on a motion for a new trial" but that "the ruling should demonstrate that the proper standard was applied to the motion"). For the reasons we have explained, we reverse the order granting a new trial and remand the case to the trial court with instructions to reconsider the motion for new trial and conduct such further proceedings as are consistent with this opinion.

Reversed and remanded with instructions.

MORRIS and LUCAS, JJ., Concur.

      Mr. Shontz initially joined the suit as a plaintiff. His claims, however, were settled prior to trial. The complaint also named the Shontzes' uninsured motorist carrier on a single claim for breach of contract. That claim, too, was resolved prior to trial. Ultimately, this case was presented to the jury solely as a claim by Ms. Shontz to recover for physical injuries allegedly caused by the accident. There was no claim or evidence at trial that the accident caused any other form of injury, loss, or damage (e.g., nominal damage or vehicular damage) to Ms. Shontz individually.

      "Under the dangerous instrumentality doctrine, an automobile owner is vicariously liable for damages caused by the operation of his vehicle by a permissive user." Fischer v. Alessandrini, 907 So.2d 569, 570 (Fla. 2d DCA 2005).

      She testified during direct examination that the stiffness occurred within twenty-four to forty-eight hours after the accident but clarified on cross-examination that it was three to four days.

      This interrogatory is consistent with the model verdict form for negligence with apportionment of fault contained within the standard instructions for use in civil cases. See Fla. Std. Jury Instr. (Civ.) Appendix B Form 1.

      The motion actually stated that Ms. Shontz gave this testimony, but it is obvious from the context that it was referring to Ms. Meyers.

      There are, of course, additional bases upon which a trial court might decide to grant a new trial, see 4 Bruce J. Berman and Peter D. Webster, Berman's Florida Civil Procedure, § 1.530:9 (2018) (providing a nonexclusive list based on Florida appellate decisions), but the basis that the verdict is against the manifest weight of the evidence was the primary ground argued below, the only ground argued by the parties on appeal, and the only one that would potentially apply in this case.

      In fairness to the trial court, there are respects in which the Meyerses' response to the new trial motion misstates or exaggerates Mr. Bozick's actual testimony.

      The sufficiency of the evidence to rebut the presumption was litigated by way of Ms. Shontz's motion for directed verdict at trial. The trial court denied the motion and allowed the issue of negligence to be decided by the jury. Ms. Shontz has not taken a cross-appeal raising the propriety of that decision.

      In view of our conclusion on this issue, we need not consider the Meyerses' additional argument that because the verdict form, by agreement, did not ask the jury to determine whether Ms. Shontz reasonably incurred diagnostic testing expenses in the event it found adversely to her on the issue of causation, Ms. Shontz is precluded from revisiting the jury's verdict as to that issue. See Schwartz, 155 So.3d at 474 ; Hernandez, 124 So.3d at 992.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    SACHSE CONSTRUCTION AND DEVELOPMENT CORPORATION, a Florida corporation, Appellant, v. AFFIRMED DRYWALL, CORP., a Florida corporation, and Travelers Casualty and Surety Company of America, a foreign insurance company, Appellees.
    Case No. 2D17-4276
    District Court of Appeal of Florida, Second District.
    Opinion filed July 18, 2018.
    Richard B. Akin, II, and J. Matthew Belcastro of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellant.
    Steven M. Siegfried and Nicholas D. Siegfried of Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A., Coral Gables, for Appellee Affirmed Drywall Corp.
    No appearance for remaining Appellee.
   SILBERMAN, Judge.

Based on a subcontract to perform drywall work (the Subcontract), Affirmed Drywall Corp. filed a two-count complaint for (1) breach of contract against Sachse Construction and Development Corporation and (2) an action against bond naming Sachse and Travelers Casualty and Surety Company. Sachse appeals a nonfinal order determining that the arbitration clause in the Subcontract is void and unenforceable because it requires arbitration in Michigan of a contract dispute relating to the improvement of real property in Florida, in violation of section 47.025, Florida Statutes (2016). We reverse that order because if the Federal Arbitration Act (FAA) applies, it preempts section 47.025. However, because the trial court did not first determine whether the contract involves interstate commerce so as to make the FAA applicable, on remand the trial court must address the question of interstate commerce.

In October 2016, Sachse, as contractor, and Affirmed Drywall, as subcontractor, entered into the Subcontract. The Subcontract reflects that Sachse is a Michigan Limited Liability Company (LLC) with an address in Detroit and reflects an address in Coral Gables, Florida, for Affirmed Drywall. Affirmed Drywall was to provide all labor, materials, and equipment associated with drywall work for the improvement of real property in Naples, Florida. Paragraph 23 of the Subcontract states that any dispute between Sachse and Affirmed Drywall "in any way relating to the Work or this Subcontract may be submitted to mediation and/or arbitration pursuant to the Construction Industry Rules of the American Arbitration Association then in effect." Paragraph 23 also provides that arbitration "shall take place at the American Arbitration Association's Southfield, Michigan, office or within 20 miles thereof." Paragraph 21 provides that the "Subcontract shall be governed by and construed in accordance with the laws of the State of Michigan."

On March 20, 2017, Affirmed Drywall filed its two-count complaint for breach of contract and an action against bond. Sachse filed a motion to dismiss or to compel arbitration in which it argued that the Subcontract is governed by and enforceable in accordance with the FAA. It contended that the FAA supersedes any inconsistent state law, that Florida courts must enforce valid arbitration agreements within the scope of the FAA, and that the trial court should compel the parties to proceed to arbitration in Michigan pursuant to the Subcontract's terms.

Affirmed Drywall opposed the motion and contended that Sachse failed to adequately allege facts that evidence interstate commerce. Affirmed Drywall also argued that under Florida law the venue provision requiring arbitration in Michigan was void as against public policy and cited, among other things, section 47.025.

At the hearing on the motion, Sachse argued that the Subcontract provides that the laws of Michigan control the contract, so section 47.025 does not even apply. But counsel stated that "far more importantly," as argued in Sachse's motion to compel arbitration, the contract involves interstate commerce because the contract shows that Sachse's principal place of business is in Detroit, Michigan, and Affirmed Drywall's principal place of business is Coral Gables, Florida; thus, Sachse's counsel argued that the FAA applies. In its motion to compel and on appeal, Sachse cites federal and Florida law, and neither party mentions what Michigan law provides. Sachse argued to the trial court that the FAA preempts section 47.025.

Affirmed Drywall argued that an evidentiary hearing would be necessary to determine if the contract involved interstate commerce. Affirmed Drywall further argued that section 47.025 prohibited the enforcement of a provision that requires venue outside the State of Florida in a contract concerning improvements to real property. Thus, Affirmed Drywall argued that the arbitration agreement violated public policy, a generally applicable contract defense that could be used to invalidate the agreement, relying upon Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla. 2011).

The trial court stated that if it decided the agreement violated public policy, then arbitration would not be compelled. If it did not, then the trial court recognized that the issue of whether interstate commerce was involved would need to be determined. The trial court took the matter under advisement.

Later, the trial court denied the motion to compel arbitration. In its order, the trial court determined that "the arbitration clause that required arbitration of disputes arising out of the improvement to real property within the state of Florida to take place in the state of Michigan" was void and unenforceable, citing to Shotts and section 47.025. The trial court implicitly rejected Sachse's preemption argument because the order did not mention the FAA or preemption. Apparently, the court did not consider whether arbitration could be ordered in Florida rather than in Michigan. The order further directed Sachse to file its answer within twenty days.

On appeal, Sachse contends that the Subcontract involves interstate commerce. We discuss later in this opinion the threshold question of interstate commerce that the trial court did not answer and which must be addressed on remand. Sachse also contends that the FAA preempts section 47.025, leaving the arbitration provision enforceable under the FAA. We now turn to that issue.

The FAA and Preemption

Section 47.025, entitled "Actions against contractors," provides as follows:

Any venue provision in a contract for improvement to real property which requires legal action involving a resident contractor, subcontractor, sub-subcontractor, or materialman, as defined in part I of chapter 713, to be brought outside this state is void as a matter of public policy. To the extent that the venue provision in the contract is void under this section, any legal action arising out of that contract shall be brought only in this state in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located, unless, after the dispute arises, the parties stipulate to another venue.

(Footnote omitted.)

Our review of whether the FAA preempts Florida law is de novo as a question of law. See McKenzie Check Advance of Fla., LLC v. Betts, 112 So.3d 1176, 1180 (Fla. 2013). The FAA "establishes a liberal federal policy favoring arbitration agreements." Id. at 1180-81. The FAA applies in both federal and state courts. Id. at 1185 ; Global Travel Mkt., Inc. v. Shea, 908 So.2d 392, 396 (Fla. 2005). Section 2 of the FAA provides that an arbitration provision in a contract involving commerce "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2 (2012). "Commerce" includes "commerce among the several States or with foreign nations." 9 U.S.C. § 1.

Enacted pursuant to the Commerce Clause of the United States Constitution, the FAA preempts conflicting or inconsistent state law. AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 341, 343-44, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) ; Southland Corp. v. Keating, 465 U.S. 1, 10-11, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) ; Gilman + Ciocia, Inc. v. Wetherald, 885 So.2d 900, 903 (Fla. 4th DCA 2004) ; Jensen v. Rice, 809 So.2d 895, 899 (Fla. 3d DCA 2002). Thus, a Florida court must enforce an arbitration agreement that is valid and enforceable under the FAA even when the agreement would be unenforceable under Florida law. Jensen, 809 So.2d at 899.

The saving clause of § 2 of the FAA allows "arbitration agreements to be declared unenforceable based on 'generally applicable contract defenses, such as fraud, duress, or unconscionability, but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.' " McKenzie Check Advance, 112 So.3d at 1181 (quoting Concepcion, 563 U.S. at 339, 131 S.Ct. 1740 ). "The 'principal purpose' of the FAA is to 'ensur[e] that private arbitration agreements are enforced according to their terms.' " Concepcion, 563 U.S. at 344, 131 S.Ct. 1740 (alteration in original) (quoting Volt Info. Scis. Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) ). "Although § 2's saving clause preserves generally applicable contract defenses, nothing in it suggests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA's objectives." Concepcion, 563 U.S. at 343, 131 S.Ct. 1740.

In Shotts, which Affirmed Drywall and the trial court relied upon, the Florida Supreme Court held that in determining whether a valid agreement to arbitrate exists, the court, not the arbitrator, decides whether an arbitration agreement violates public policy and is unenforceable. 86 So.3d at 471. The supreme court recognized that "[i]n Florida, an arbitration clause in a contract involving interstate commerce is subject to the Florida Arbitration Code (FAC), to the extent the FAC is not in conflict with the FAA." Id. at 463-64. The Shotts court stated that public policy is one of the " 'generally applicable contract defenses' for purposes of section 2" of the FAA because "if an arbitration agreement violates public policy, no valid agreement exists." Id. at 464-65. There, the court determined that "the limitations of remedies provisions in [an agreement regarding a nursing home] violate public policy, for they directly undermine specific statutory remedies" provided by the Florida Legislature. Id. at 474. The court concluded that the challenged provisions were unenforceable. Id. at 474-75.

The Shotts court recognized that courts are prohibited from "invalidat[ing] arbitration agreements under state laws applicable only to arbitration provisions." Id. at 463 (quoting Doctor's Assocs. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) ). In Casarotto, the Supreme Court determined that the FAA preempted a Montana statute that required all arbitration agreements to comply "with a special notice requirement not applicable to contracts generally." 517 U.S. at 687, 116 S.Ct. 1652. The Court stated that the FAA's goals "are antithetical to threshold limitations placed specifically and solely on arbitration provisions." Id. at 688, 116 S.Ct. 1652. The Court pointed out that the Montana statute "place[d] arbitration agreements in a class apart from 'any contract,' and singularly limit[ed] their validity." Id.

Since Shotts, our supreme court in McKenzie addressed an arbitration agreement that contained a class action waiver that the Fourth District had determined was a violation of Florida public policy. 112 So.3d at 1177. The arbitration agreement in McKenzie contained a severability clause, unlike the arbitration provision at issue here, but the parties in McKenzie stipulated "that if the class action waivers were held to be unenforceable, the arbitration provisions would be stricken." Id. at 1179. Relying upon Concepcion, the McKenzie court determined "that the FAA preempts invalidating the class action waiver in this case on the basis of it being void as against public policy." Id. at 1178.

The McKenzie court discussed the saving clause of § 2 and stated that it reflected the " 'liberal federal policy favoring arbitration,' and the 'fundamental principle that arbitration is a matter of contract.' " Id. at 1181 (quoting Concepcion, 563 U.S. at 339, 131 S.Ct. 1740 ). Arbitration agreements cannot be declared unenforceable by "defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue." Id. (quoting Concepcion, 563 U.S. at 339, 131 S.Ct. 1740 ). The court recognized that "States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons." Id. at 1185-86 (quoting Concepcion, 563 U.S. at 351, 131 S.Ct. 1740 ).

Sachse relies upon R.A. Bright Construction, Inc. v. Weis Builders, Inc., 402 Ill.App.3d 248, 341 Ill.Dec. 355, 930 N.E.2d 565 (2010), and OPE International LP v. Chet Morrison Contractors, Inc., 258 F.3d 443 (5th Cir. 2001), to support its argument that the FAA preempts section 47.025. OPE dealt with a similar Louisiana statute providing that with respect to construction contracts for work to be done within Louisiana any provision which "[r]equires a suit or arbitration proceeding to be brought in a forum or jurisdiction outside of this state" is "void and unenforceable as against public policy." 258 F.3d at 446 (quoting La. Stat. Ann. § 9:2779 (1998) ). The court recognized that the FAA prohibited "States from singling out arbitration provisions for suspect status" and required that the courts place arbitration provisions "upon the same footing as other contracts." Id. at 447 (quoting Casarotto, 517 U.S. at 687, 116 S.Ct. 1652 ). The court determined that "[t]he statute directly conflicts with § 2 of the FAA because the Louisiana statute conditions the enforceability of arbitration agreements on selection of a Louisiana forum" and that requirement was "not applicable to contracts generally." Id.

R.A. Bright relied upon OPE in determining that the FAA preempted a similar Illinois statute. 341 Ill.Dec. 355, 930 N.E.2d at 571-72. The statute provided that in building and construction contracts to be performed in the state a provision requiring litigation or arbitration to take place in another state was void as against public policy. Id., 341 Ill.Dec. 355, 930 N.E.2d at 571. In determining that the FAA preempted the statute, the court stated that the statute was "not applicable to all contracts generally, but only to contracts involving building and construction." Id., 341 Ill.Dec. 355, 930 N.E.2d at 572 ; see also LaSalle Grp., Inc. v. Electromation of Del. Cty., Inc., 880 N.E.2d 330, 333 (Ind. Ct. App. 2008) (stating that the Indiana statute applied "only to dispute resolution forum selection clauses in" contracts for the improvement of real property and not to "any" contract).

Also, in United States ex rel. TGK Enterprises, Inc. v. Clayco, Inc., 978 F.Supp.2d 540, 548 (E.D.N.C. 2013), the federal court determined that the FAA preempted a general North Carolina statute and one applying specifically to construction contracts because the statutes prohibited the out-of-state prosecution of an action or arbitration of a dispute. The court explained that where a statute's enforcement was sought to invalidate the arbitration agreement calling for arbitration in Missouri, this "would 'require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.' " Id. (quoting Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) ).

Even if section 47.025"is desirable for unrelated reasons," Florida "cannot require a procedure that is inconsistent with the FAA." McKenzie, 112 So.3d at 1184 (quoting Concepcion, 563 U.S. at 351, 131 S.Ct. 1740.) Section 2 specifically provides that arbitration provisions in contracts involving commerce "shall be valid, irrevocable, and enforceable" and that the exception to enforcement of an arbitration provision is "grounds as exist at law or in equity for the revocation of any contract." (Emphasis added.) Thus, the language of § 2, along with OPE, R.A. Bright, and LaSalle, support our determination that the FAA preempts section 47.025.

And not only did the trial court determine that section 47.025 prohibited arbitration in Michigan, but also the trial court denied the motion to compel arbitration and ordered Sachse to file its answer in twenty days. Thus, it appears that the trial court prohibited arbitration in both Michigan and Florida. In Clayco, the court determined that the state statute conflicted with the FAA when the result was to invalidate the arbitration agreement and require resolution by a judicial forum. 978 F.Supp.2d at 548. That was the consequence in this case as well. Because the trial court's order requires the parties to litigate the matter, the result is to "require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration." Id. (quoting Southland Corp., 465 U.S. at 10, 104 S.Ct. 852 ). Because the FAA preempts section 47.025 if the FAA is applicable, we reverse the trial court's order that finds the arbitration provision unenforceable and requires the defendants to answer the complaint.

Interstate Commerce

As indicated earlier, the trial court never addressed the threshold question of whether the Subcontract involves interstate commerce. Because we have determined that the FAA preempts section 47.025 if the FAA is applicable, the trial court must determine on remand whether the Subcontract involves interstate commerce. That question should have been resolved first to determine if the FAA even applies to the Subcontract, perhaps making unnecessary the preemption analysis.

We do not agree with Sachse that the face of the Subcontract clearly shows that interstate commerce is involved by virtue of the fact that Sachse is a Michigan LLC. In Hound Mounds, Inc. v. Finch, 153 So.3d 368, 370 (Fla. 4th DCA 2014), which Sachse relies upon, the court determined that a franchise agreement between a Texas corporation and Florida resident involved interstate commerce. Sachse also relies upon Pilot Catastrophe Services, Inc. v. Fouche, 145 So.3d 151, 153 (Fla. 5th DCA 2014), in which a Florida employee filed a lawsuit against her employer, an Alabama corporation, for disability and gender discrimination. The Fifth District did state that "[a] contract between a Florida resident and a foreign corporation is an agreement evidencing a transaction involving interstate commerce." Id. at 154. The court cited Gilman + Ciocia, Inc. v. Wetherald, 885 So.2d 900, 904-05 (Fla. 4th DCA 2004), for this proposition. 145 So.3d at 154. But in Gilman, in addition to the parties to the contract being a Florida resident and a New York corporation, the contract was an employment contract in which the Florida employee provided accounting, insurance, and broker services. 885 So.2d at 902. The court listed seven provisions in the parties' agreement it considered in determining that interstate commerce was involved, such as the employee providing services of buying and selling securities and the parties' sharing of data, exchanging correspondence, and transferring funds between New York and Florida. Id. at 904-05.

The present case does not involve a franchise agreement or employment agreement. Rather, it involves a contract to improve real property in Florida. Further, while Sachse maintains that it is a Michigan LLC, Affirmed Drywall alleged in its complaint that "Contractor [Sachse] is a Florida Corporation, authorized to, and doing business in Collier County, Florida." The parties did not address this allegation in light of the interstate commerce analysis. Because the trial court never ruled on the issue of whether the Subcontract involves interstate commerce and the record is not conclusive on this issue, we direct the trial court to address this issue on remand.

Reversed and remanded with directions.

CRENSHAW and SLEET, JJ., Concur.

      The Revised Florida Arbitration Code, effective July 1, 2013, would be applicable to the present case. See § 682.01, Fla. Stat. (2016) ; Ch. 2013-232, § 40 at 2767, Laws of Fla. The parties do not address this.

      We note that the Subcontract does not contain a severability clause, and the parties have not argued this issue to us.


author: PER CURIAM.

text:
    America HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2687
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

America Hernandez (the defendant) appeals the trial court's order revoking her community control based on its finding that she substantially and willfully violated conditions 3 and 9 of her community control. We affirm as to condition 9, but reverse on condition 3 and remand for further proceedings.

The defendant was convicted on a charge of arson of a dwelling and was placed on community control. The community control order contained a number of conditions, including that the defendant could not change her residence without obtaining the consent of her supervising officer (condition 3) and that she must comply with all instructions given to her by her supervising officer (condition 9).

The defendant was charged with violating conditions 3 and 9. After holding an evidentiary hearing on the charged violations, the trial court entered a written order, finding that the defendant had violated condition 3 by changing residences without the consent of her community control officer and that she had violated condition 9 by failing to contact her community control officer the day she left her former residence. Ultimately, the trial court sentenced the defendant to 10 years in prison with credit for time served, and this appeal followed.

The defendant contends that there was no competent substantial evidence to support the trial court's finding that she willfully violated conditions 3 and 9. We agree as to condition 3, but disagree as to condition 9.

At a revocation hearing, the State has the burden to prove by a preponderance of the evidence that the defendant violated a condition of supervision willfully and substantially. Knight v. State, 187 So.3d 307, 309 (Fla. 5th DCA 2016). When a defendant challenges the sufficiency of the State's evidence, we review the record to determine if competent substantial evidence supports the trial court's finding of a willful and substantial violation. Id.

As to condition 3, the State did not introduce any evidence that the defendant failed to request permission to change her residence or that such permission was denied. In fact, the day before leaving the hotel where she resided, she apprised her community control officer that she lacked the finances to continue staying there. In response, the community control officer told her simply that she needed to apprise him of her new residence. However, as to condition 9, the State's evidence was sufficient to establish a willful violation.

Because the record does not reveal whether the trial court would have revoked the defendant's community control and imposed a sentence of 10 years in prison based solely on the violation of condition 9 listed in the order, we remand for reconsideration. See McDoughall v. State, 133 So.3d 1097, 1100 (Fla. 4th DCA 2014) ; Eubanks v. State, 903 So.2d 1005, 1006 (Fla. 2d DCA 2005).

AFFIRMED in part; REVERSED in part; REMANDED

SAWAYA, PALMER and TORPY, JJ., concur.


text:
    Tyzick Joseph WALL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3731
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018
    Edward Juan Lynum, of Lynum & Associates, PLLC, Wildwood, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Tyzick Joseph Wall appeals his convictions and sentences for second-degree murder with a deadly weapon, robbery with a deadly weapon, and two counts of dealing in stolen property. Wall was under the age of eighteen when he committed these crimes. We affirm his convictions without further discussion but remand for resentencing on Count One, second-degree murder. We also remand for the trial court to amend the sentence on Count Two, robbery with a deadly weapon.

As to Wall's sentence on Count One, we reverse because Wall was entitled to a jury fact-finding on whether he "actually killed, intended to kill, or attempted to kill" Stephen Gorney. See Williams v. State, 242 So.3d 280, 288-89 (Fla. 2018) (citing Alleyne v. United States, 570 U.S. 99, 115, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ). We find that this error was not harmless beyond a reasonable doubt. See id. at 289-90. Because second-degree murder with a deadly weapon is a first-degree felony reclassified as a life felony under sections 775.087(1)(a) and 782.04(2), Florida Statutes (2015), Wall should have been sentenced under section 775.082(3)(b)2., Florida Statutes (2015). Williams specifies resentencing as though there had been a jury finding that Wall did not kill, intend to kill, or attempt to kill Gorney, rather than empanelment of a jury, as the remedy for this error. 242 So.3d at 292-93. We, therefore, remand for resentencing on Count One pursuant to section 775.082(3)(b)2.b. See Williams, 242 So.3d at 288-93. The trial court shall indicate in the sentencing document that Wall is eligible for sentence review on this count after fifteen years under section 921.1402(2)(c), Florida Statutes (2015). § 775.082(3)(b)2.b., c., Fla. Stat. (2015).

We also remand for the trial court to amend the sentence on Count Two, robbery with a deadly weapon, to reflect eligibility for sentence review after twenty years under section 921.1402(2)(d), Florida Statutes (2015). § 775.083(3)(c), Fla. Stat. (2015). In all other respects, we affirm.

AFFIRMED, in part; REVERSED, in part; and REMANDED with instructions.

ORFINGER, BERGER and EISNAUGLE, JJ., concur.

      Wall was indicted jointly with his codefendant, Bryan Thomas Robinson, for the premediated first-degree murder of Stephen Gorney (Count One), robbery with a deadly weapon (Count Two), and two counts of dealing in stolen property (Counts Three and Four).

      We note that Wall's second-degree murder conviction did not clearly include a finding by the jury that Wall actually killed Gorney due to the wording in the verdict form and jury instructions.


text:
    STATE of Florida, Appellant, v. Walter UPSHAW, Appellee.
    Case Nos. 5D17-3611 5D17-3743
    District Court of Appeal of Florida, Fifth District.
    Opinion filed July 20, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The State of Florida appeals an order granting Walter Upshaw's motion to suppress. Because we conclude that the police had probable cause to arrest Upshaw, we reverse.

While on foot patrol in a high crime area, two Orlando police officers observed cannabis spread on the passenger's side dashboard of a red SUV. On closer inspection, they could also see cannabis on the passenger's seat and floor. About fifteen minutes later, Upshaw entered the passenger side of the vehicle, while a woman entered the driver's side. Shortly thereafter, the officers stopped the vehicle and patted down the occupants. Although the officer did not feel any weapons when he patted down Upshaw, he did feel something in Upshaw's pocket that he suspected to be drugs. He reached into the pocket and pulled out what turned out to be MDMA, a controlled substance.

Upshaw filed a motion to suppress, arguing that the warrantless search of his person was a Fourth Amendment violation. The State countered that because Upshaw could have been charged with possession of cannabis, the drugs in Upshaw's pocket would have inevitably been discovered. The trial court concluded that there was insufficient probable cause to arrest Upshaw for possession of cannabis and suppressed the evidence. We disagree.

The inevitable discovery doctrine requires the State to establish that the police ultimately would have discovered the evidence independently of any improper police conduct by "means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure." Craig v. State, 510 So.2d 857, 863 (Fla. 1987) (citations omitted). "In order to apply this doctrine, there does not have to be an absolute certainty of discovery, but rather, just a reasonable probability." State v. Ruiz, 502 So.2d 87, 87 (Fla. 4th DCA 1987) (citing United States v. Brookins, 614 F.2d 1037 (5th Cir. 1980) ). Thus, we must determine if the officers had probable cause to arrest Upshaw for constructive possession of cannabis.

To determine whether there is probable cause to arrest on a constructive possession theory, the State must establish that the arresting officer reasonably believed the accused had dominion and control over the contraband and knowledge that it was within his presence. Knight v. State, 186 So.3d 1005, 1012 (Fla. 2016). In State v. Robinson, 27 So.3d 137 (Fla. 5th DCA 2010), law enforcement officers stopped a vehicle and arrested the driver for driving with a suspended license. After removing the defendant and another passenger from the vehicle, one of the officers observed, in plain view, a plastic bag on the rear floorboard of the passenger's side, which appeared to be crack cocaine. This was where the defendant had been sitting before being asked to leave the vehicle. This Court concluded that the evidence was sufficient to establish probable cause to believe that the defendant was in possession of the drugs and to arrest him for it. Robinson, 27 So.3d at 140 ; see also R.D.D., Jr. v. State, 15 So.3d 857 (Fla. 1st DCA 2009) (holding arrest lawful where drugs in clear plastic bag in plain view on left side of rear seat while defendant was in right hand rear seat was sufficient to prove constructive possession).

We conclude that the officers had probable cause to arrest Upshaw for constructive possession of cannabis. Had they done so, they inevitably would have discovered the drugs concealed in his pocket. For these reasons, we reverse the order suppressing the evidence.

REVERSED and REMANDED.

ORFINGER, TORPY and LAMBERT, JJ., concur.


author: BADALAMENTI, Judge. SLEET, Judge, Dissenting.

text:
    Tyee Martele SPIKE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4825
    District Court of Appeal of Florida, Second District.
    Opinion filed July 27, 2018
    Howard L. Dimmig, II, Public Defender, Brian Lydic, Special Assistant Public Defender and Lisa Lott, Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

Tyee Martele Spike appeals his jury convictions and sentences for trafficking in oxycodone; possession of cocaine with intent to sell or deliver within 1000 feet of a school; possession of marijuana with intent to sell, manufacture, or deliver within 1000 feet of a school; and possession of drug paraphernalia. Spike argues that the trial court abused its discretion in denying his motions for mistrial based on a police detective's testimony that after working for twelve or thirteen years in the area where Spike resided and was arrested, he was familiar with the area in general and knew Spike and "a lot of residents" in that area.

We affirm Spike's convictions, concluding beyond a reasonable doubt that the detective's testimony did not affect the jury's verdict and thus any error was harmless.

The drug charges against Spike arose after police searched his home pursuant to a valid search warrant. Spike was not at home during the search, but police located him and brought him back to the residence. The State asked a detective, a member of the search warrant team assigned to secure the perimeter of the residence during the search, the following questions on direct examination:

Q: Was the defendant located inside of that house at that point in time?
A: No, he was not.
Q: What happened after that?
A: I decided to look around in that I knew him. I decided to look around the neighborhood and see if I could locate him.
Q: And were you able to locate him?
A: I was.
Q: Where were you able to locate him in relation to the house?
A: It was about three blocks to the south on 15th Avenue.
Q: When you located him, what did you do?
A: Another unit came by and they transported him back to the residence.
Q: You said that you went to go locate the defendant because you knew him.
A: Yes.
Q: Had you met him before?

(Emphasis added.)

At that point, the defense objected and moved for a mistrial, arguing that the testimony implied that the defendant had been involved in past criminal activity. The trial court sustained the objection, observing: "Enough. It was really an unnecessary question. It just was. You know, I went, got him, brought him back to the residence; that's it, period. It was just not a necessary question." The court then denied Spike's motion for mistrial and allowed the State to work to cure the error by eliciting testimony from the detective that he had been working in the community for twelve years and was familiar with the residents. The State resumed its direct examination by asking:

Q: Detective, let's pick up where we left off. How do you know the defendant in the area?
A: I worked that area for about 12 of the 13 years I've been with the Tampa Police Department.
....
Q: How familiar are you with the residents in that area that you worked for 13 years?
A: I'm familiar with the area in general and with a lot of the residents that reside in that area.

The defense renewed its objection and again moved for mistrial. The court again denied the motion.

Under certain circumstances, a police officer's testimony about how the officer came to know a defendant may create a prejudicial inference that the defendant has a prior criminal history. See, e.g., Day v. State, 105 So.3d 1284, 1286-88 (Fla. 2d DCA 2013) (holding that the trial testimony of detective, who was not otherwise involved in the investigation but to identify defendant in a surveillance video, was not harmless where detective testified that she was a police detective, that she "had contact with" the defendant as a community police officer at a public housing project, that she helped with calls for police assistance, and that through "research and pulling up photos" she learned defendant's real name because she had previously known defendant only by a "street name"). The circumstances in Spike's case, however, were significantly different and any error arising from the detective's testimony about how he knew Spike was harmless beyond a reasonable doubt.

Under the harmless error test, "[t]he question is whether there is a reasonable possibility that the error affected the verdict." State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986). DiGuilio informs us that the harmless error test requires both "a close examination of the permissible evidence on which the jury could have legitimately relied" as well as "an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict." Id. at 1138.

The evidence against Spike on which the jury could have legitimately relied was significant and included his own admissions to prior criminal activity. Upon execution of the warrant to search Spike's residence, officers located a bedroom where male clothes were stored and pictures of Spike and his girlfriend were displayed. Spike later admitted in one of his two post- Miranda statements that the bedroom was indeed his. A digital scale used to weigh narcotics and containing cocaine residue was found atop a dresser in that room. A locked, digital safe, which Spike later admitted was his and "nobody else's," was found inside that dresser. While the detective was attempting to unlock the safe with the digital code Spike had provided him, Spike stated to him that there were "only pills and spice in the safe." But crack cocaine, powder cocaine, and oxycodone pills stored in a bottle without a prescription label were also found inside the safe. A law enforcement expert in drug crimes testified that the cocaine was packaged in a manner consistent with the sale of narcotics.

Spike ultimately admitted to officers that he sold cocaine "to make ends meet" because he "was having a hard time paying the bills." But he claimed that the oxycodone pills stored in his locked safe were not his, telling officers that he was "holding them for a friend named Al." As for the marijuana ("spice") found in Spike's safe, Spike told the officers that it was "for his personal use only, not for sale."

In arriving at its guilty verdict, the jury necessarily weighed the strength of the State's permissible evidence, including Spike's admissions. Spike acknowledged selling cocaine and using marijuana. And while Spike told the detective that there were only pills and marijuana in the safe, crack cocaine and powder cocaine were also found in the safe. Spike later admitted that the safe belonged to him and "only him." Thus, while the detective's testimony established that he had worked in the area where Spike lived and that he knew Spike and many area residents, the jury also knew Spike had been engaged in criminal activity based on his own admissions. Accordingly, the effect of any inference that the jury might have drawn from the detective's testimony that he knew Spike from the area was harmless beyond a reasonable doubt.

We recognize that DiGuilio cautions that the harmless error test "is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test" and that instead the "focus is on the effect of the error on the trier-of-fact." 491 So.2d at 1139. But under the specific circumstances of this case, the effect of the detective's testimony as to knowing Spike from the area was negligible.

To discern the effect of the purported error on the jury here, it is helpful to set forth the context in which the detective's comments were made to the jury and to further note that the detective's testimony was not emphasized by the State at any other point in the jury trial, including the State's closing arguments. Prior to the detective's testimony that he knew Spike, the jury was presented with testimony painting a picture as to the events resulting in Spike's arrest as follows: Specifically, during the execution of the search warrant for Spike's residence by the Tampa Police Department, the detective was assigned to secure the exterior perimeter of the home "in case somebody attempts to run." At approximately 6:15 p.m. on the day of the search, the detective learned from officers securing the inside of the residence that Spike was not inside. The detective explained that at that point "I decided to look around in that I knew him. I decided to look around the neighborhood and see if I could locate him." (Emphasis added.) The detective then explained that he located Spike three blocks south of the residence. The statement of the detective's knowledge of Spike was made in passing. And although the State asked the detective if he had met Spike before, the detective never answered the question. After denying Spike's motion for mistrial, the detective clarified to the jury that he had worked in that area for twelve or thirteen years and knew how to locate Spike because he was "familiar with the area in general and with a lot of the residents that reside in that area."

Although we share the trial court's observation that some of the State's questioning was unnecessary, we are satisfied that the detective's testimony as to knowing Spike did not affect the verdict under the facts and circumstances here. First, a police officer being "familiar with" a resident of an area where the officer works does not, by itself, reasonably imply a prior bad act by that person. See Harrison v. State, 775 So.2d 423, 425 (Fla. 5th DCA 2001) (holding, in a robbery case, that testimony that a deputy had run a criminal history check of the defendant and that he had become "very familiar" with the defendant's vehicle because he "had seen that vehicle before" did not create reversible error because it "did not reference any prior criminal history or law enforcement contact"); see also Miller v. State, 605 So.2d 492, 494 (Fla. 3d DCA 1992) (holding, in a case where the defendant shot and murdered a victim, that a witness's reference to the defendant's "previous dealings" with guns "cannot be said to imply collateral bad acts ... since there is no indication that the 'previous dealings' were illegal" in any way).

Next, the detective's testimony that he knew Spike did not become a "feature of the trial." See Wright v. State, 19 So.3d 277, 293-94 (Fla. 2009). The detective's discussion of how he knew Spike, as well as "a lot of the residents that reside in that area," was brief, and the State did not reference Spike's past criminality or contact with police officers in its closing argument. Cf. Fitzsimmons v. State, 935 So.2d 125, 129 (Fla. 2d DCA 2006) ("The inadmissible collateral crime evidence became a feature of the trial because of the number of witnesses who testified about it and because of the prosecutor's repeated references to it during her closing argument."). Furthermore, the State's case against Spike did not hinge on Spike being "known" by the detective. Cf. Gray v. State, 873 So.2d 374, 377 (Fla. 2d DCA 2004) ("Generally, when the identification of the defendant as a perpetrator rests on the testimony of a single witness ... the erroneous admission of collateral crime evidence has not been considered harmless error.").

Even further, the detective's testimony in this case is far less troubling than in those cases where Florida courts have held an officer's testimony about prior contacts with the defendant to be harmful. Those cases either had testimony from police officers who were not involved in the case except to identify the defendant, had testimony that was far more indicative of prior bad acts, or involved other errors unrelated to testimony by police officers. See Day, 105 So.3d at 1286-88 (concluding that the court committed reversible error by permitting the State to elicit evidence of the witness's status as a police officer where the witness's only role in the investigation was to identify defendant in a surveillance video and the witness testified that she "had contact with" the defendant as a community police officer at a public housing project, that she helped with calls for police assistance, and that through "research and pulling up photos" she learned defendant's real name because she had previously known defendant only by a "street name"); Alcantar v. State, 987 So.2d 822, 824-25 (Fla. 2d DCA 2008) (holding that an officer who monitored an audio transmission of a controlled drug buy but did not witness it should not have been allowed to testify that he knew the defendant for "all" of his twenty-three-year career and knew the defendant's street name); State v. Price, 701 So.2d 1204, 1205-07 (Fla. 3d DCA 1997) (upholding trial court's grant of new trial where police officer, who "was not directly involved in the instant case" and whose "sole purpose was to provide his opinion as to the identification of the Defendant" after having reviewed a videotape of a drug buy, testified while wearing a uniform that he knew "a lot of the residents" in a year and a half of working in a particular area in which defendant did not even reside and explained both that he knew the defendant much longer-"for probably five, six years"-and that he knew the defendant, "Samuel Price," by the nickname "Sammie"); Willis v. State, 669 So.2d 1090, 1093-94 (Fla. 3d DCA 1996) (finding that errors in a "close" case were not harmless where the State gave improper closing argument attacking the credibility of an alibi witness and where defendant "was unduly prejudiced by the police officer's gratuitous testimony that [defendant] had previous contacts with the police in other 'incidents' "); Edwards v. State, 583 So.2d 740, 741 (Fla. 1st DCA 1991) (holding that an officer should not have been allowed to testify that he identified the defendant from a video of a controlled drug buy where it was not established that the officer had any knowledge or familiarity with defendant prior to the controlled buy); Hardie v. State, 513 So.2d 791, 792-94 (Fla. 4th DCA 1987) (holding that it was error to allow five police officers who identified defendant in video surveillance to testify that they were acquainted with the defendant in a smash-and-grab robbery case based on the defendant having been involved in prior "investigations").

Accordingly, after "a close examination of the permissible evidence on which the jury could have legitimately relied" as well as "an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict," DiGuilio, 491 So.2d at 1138, we conclude beyond a reasonable doubt that the detective's testimony did not affect the jury's verdict and thus any error was harmless. We therefore affirm Spike's convictions and sentences.

Affirmed.

SILBERMAN, J., Concurs.

SLEET, J., Dissents with opinion.

SLEET, Judge, Dissenting.

I respectfully disagree with the majority's conclusion that the detective's testimony did not "reasonably imply a prior bad act by" Spike and that its admission was harmless error. Because the State's question elicited a response from the detective that he knew Spike from his police work in Spike's neighborhood, it undeniably implicated Spike in prior collateral criminal activity. Because the admission of prior bad acts was not harmless error in this case, I would reverse and remand for a new trial.

First, there is no doubt that when a police officer identifies a defendant at trial based on past contact, the officer's testimony creates a prejudicial inference that the defendant has been involved in prior criminal conduct. Day v. State, 105 So.3d 1284, 1288 (Fla. 2d DCA 2013) (concluding that the officer's testimony that she knew Day "from when she had worked in [her] neighborhood as a community police officer" made it "inconceivable that the jury would not have concluded that Day had been involved in prior criminal conduct, and thus the admission of this evidence constituted reversible error"); Alcantar v. State, 987 So.2d 822, 825 (Fla. 2d DCA 2008) ("[T]he trial court's decision[ ] to admit into evidence the irrelevant and prejudicial testimony that the second officer knew Mr. Alcantar from his long experience in law enforcement ... [was] in contravention to the rules of evidence and an abuse of discretion."); see also State v. Price, 701 So.2d 1204, 1206-07 (Fla. 3d DCA 1997) (concluding that a new trial was appropriate when a police officer testified that he knew Price from his previous work in the community); Willis v. State, 669 So.2d 1090, 1093 (Fla. 3d DCA 1996) (holding that the defendant "was unduly prejudiced by the police officer's gratuitous testimony that Willis had previous contacts with the police in other 'incidents' " (citing Hardie v. State, 513 So.2d 791, 792 (Fla. 4th DCA 1987) ) ). The majority's holding that "a police officer being 'familiar with' a resident of an area where the officer works does not, by itself, reasonably imply a prior bad act by that person" is contrary to this well-established case law.

Although the State may avoid the prejudicial inference of collateral crimes by concealing the officer's occupation from the jury or may rebut the inference by providing an innocuous explanation for the officer's familiarity with the defendant, neither was done in this case. See Day, 105 So.3d at 1287-88 ; Price, 701 So.2d at 1206 (explaining that a police officer may properly provide identification testimony when his occupation is not disclosed to the jury); Edwards v. State, 583 So.2d 740, 741 (Fla. 1st DCA 1991) (reversing for a new trial when a police officer testified that he recognized the defendant on a surveillance tape and noting that the testimony would have been admissible had the State laid the proper predicate and "if [the officer] were not identified to the jury as a police officer"); Hardie, 513 So.2d at 792 (concluding that the defendant "suffered prejudice as a result of the witnesses being identified as police officers and then testifying concerning his identity because it created the impression that he had been involved in other criminal activities or had a prior record"). Here, instead of rebutting the prejudicial inference, the detective's responses to the State's questions only reinforced that his basis for knowing Spike was entirely through his official work as a police officer. The State was unable to dispel the reasonable inference that the detective's familiarity with Spike was a result of prior collateral criminal conduct; the detective could not truthfully testify that he knew Spike through a prior inculpable interaction. By granting the State's request to make further inquiry, the trial court only exacerbated the error.

The majority attempts to distinguish Day, Alcantar, Price, Willis, Edwards, and Hardie as involving testimony from officers who were not involved in the underlying case, testimony that was "far more indicative of prior bad acts" than the detective's testimony in this case, and "other errors unrelated to testimony by police officers." I respectfully disagree. The level of an officer's involvement in the underlying case is immaterial to whether his or her identification testimony based on a personal familiarity with the defendant creates a prejudicial inference in the minds of the jurors. See Edwards, 583 So.2d at 741 (noting that the admission of officer identification testimony required a proper "predicate showing that [the officer] had prior knowledge of or a special familiarity with [the defendant]" but concluding that in any event identification testimony from an officer was admissible only if the officer's occupation was not disclosed). Moreover, my review of the record reveals that the State's sole purpose for calling the detective to the stand was to identify Spike based on his prior police work. Rather than accepting the detective's testimony that he knew Spike, the State intentionally pressed forward, asking specifically whether the detective had met Spike before. As explained above, this court in Day and Alcantar and the Third District in Price considered identification testimony indistinguishable from the detective's testimony in this case and concluded that the error was not harmless. See Day, 105 So.3d at 1288 ; Alcantar, 987 So.2d at 825 ; Price, 701 So.2d at 1206-07. The Florida Supreme Court has expressly approved of this court's reasoning in Day, concluding that "permitting questions that elicit a witness's position as a police officer when that witness is identifying a defendant's voice or image has been held to be reversible error even when the identification itself was permissible." Evans v. State, 177 So.3d 1219, 1230 (Fla. 2015). In Willis and Hardie, the testifying officers also referred to prior "incidents" or "investigations" involving the defendant, which certainly more clearly implicated prior criminal conduct than the testimony in this case. However, I agree with the Price court's reasoning that even though a detective's testimony that he or she is familiar with the defendant from working in the community is less prejudicial than if the officer had expressly referred to prior incidents, it is nevertheless not harmless error. 701 So.2d at 1207.

The majority's harmless error analysis rests on its assertion that the evidence against Spike "included his own admissions to prior criminal activity." However, Spike's statements to police were only relevant to the offenses charged in the present case; his statements were specifically directed to the illicit substances found in the safe and did not implicate Spike in any uncharged criminal conduct. Nor did Spike take the stand, and therefore the State was unable to impeach him with any past felonies. The only reference to Spike's past criminal history in this case was the deputy's statement that he was familiar with Spike as a result of his police work in Spike's community. This statement created an inference that Spike had been involved in collateral crimes, and "[t]he harmless error test ... places the burden on the state ... to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).

Additionally, the majority reasons that the testimony was harmless because it was not a feature of the trial. However, the "[e]rroneous admission of collateral crimes evidence is presumptively harmful." Czubak v. State, 570 So.2d 925, 928 (Fla. 1990) ; see also State v. Vazquez, 419 So.2d 1088, 1090 (Fla. 1982) ("[E]vidence of any crime committed by a defendant, other than the crime or crimes for which the defendant is on trial, is inadmissible in a criminal case where its sole relevancy is to attack the character of the defendant or to show the defendant's propensity to commit crime." (quoting Vazquez v. State, 405 So.2d 177, 179 (Fla. 3d DCA 1981) ) ). And "[e]vidence that suggests a defendant has committed other crimes or bad acts can have a powerful effect on the results at trial." Rodriguez v. State, 112 So.3d 744, 745 (Fla. 5th DCA 2013) (quoting Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997) ). The State emphasized the detective's employment and elicited testimony that he recognized Spike from his police work in the community where Spike lived. Although the detective did not testify that Spike had committed prior offenses, his "testimony [gave] rise to at least a reasonable implication that [Spike] had previously been involved in criminal activity, and therefore the admission of this testimony was not harmless beyond a reasonable doubt." Day, 105 So.3d at 1288. As this court explained in Day, there may be

circumstances under which the fact of a police officer's employment might be harmless. For instance, if [the officer] had testified that she was a police officer, she had lived next door to [the defendant] for several years, and she knew [the defendant] as her neighbor from the neighborhood, [the officer]'s status as a police officer would be simply an incidental fact that would not necessarily give rise to an implication of prior criminal conduct. But such is not the case here.

Id. (footnote omitted).

Finally, the majority's reliance on the weight of the State's evidence and the credibility of Spike's statements to police misapprehends the harmless error test and goes beyond a "close examination" of the evidence presented at trial. As the Florida Supreme Court has explained, the harmless error

test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

DiGuilio, 491 So.2d at 1139 (emphasis added); see also Cardenas v. State, 867 So.2d 384, 395 (Fla. 2004) (rejecting this court's holding in McBride v. State, 816 So.2d 656 (Fla. 2d DCA 2002), that overwhelming evidence against the defendant rendered an error harmless). The weight and credibility of the State's evidence is not relevant to a determination of whether the error affected the verdict. And this court may not reweigh the evidence on appeal. Rivera v. State, 180 So.3d 1195, 1198 (Fla. 2d DCA 2015) ("[T]he harmless error test does not allow the appellate court to weigh the evidence and substitute itself for the jury.").

Here, the jury was left with the inescapable inference that Spike had been involved in prior criminal activity. Because I do not believe that we can conclude beyond a reasonable doubt that the erroneous testimony did not impact the verdict, I would reverse and remand for a new trial.

      The dissent notes that "the State's sole purpose for calling the detective to the stand was to identify Spike based on his prior police work." We disagree. A review of the trial transcript reveals that the detective was a member of the search warrant team tasked, along with others, with securing the perimeter of the residence to be searched "in case somebody attempt[ed] to run" from the residence and assisting, if necessary, the officers inside the residence. The detective participated in, among other duties, briefing with the other members of the search warrant team prior to the warrant's execution, assisting other officers to detain Spike and transport him back to his residence, opening a safe containing drugs after Spike had provided the combination to the safe to another officer, and collecting, marking, and testing the evidence seized pursuant to the search warrant.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      The majority claims that the detective played a greater role in the execution of the warrant because he "participated in ... opening a safe containing drugs ... and collecting, marking, and testing the evidence seized pursuant to the search warrant." However, the State did not ask the detective any questions regarding these activities at the scene; the only reference to the detective's role in the investigation beyond securing the perimeter and locating Spike came from the testimony of two other officers who testified at trial regarding the contents of the safe and Spike's statements to law enforcement.

      Although the majority includes several quotations in its statement of the facts regarding Spike's statements to police, these quotations are from a police officer who testified to Spike's post-Miranda statements. Spike did not testify at trial and the recording of his interview with police after his arrest was lost before trial.