[CRIMINAL MISCHIEF CONVICTION]

That was the situation which Paul Phang—a rideshare driver— encountered after he had dropped off a customer inside of a gated residential community. When Paul attempted to exit the sideways-rolling metal gate at two o’clock in the morning, the gate would not open. Paul called the posted phone number four times over a sixteen-minute period, but the phone rang repeatedly with no answer.

Rather than calling the local police’s non-emergency number, Paul literally took matters into his own hands.

Paul got out of his car and, using his bare hands, began pushing and pulling the entrance gate forward, causing the gate’s sideways-pointing wheel to repeatedly become stuck in the asphalt.

To the extent Paul was attempting to describe the legal justification or excuse of “duress” or “necessity,” Paul did not request the circuit court to provide the jury with any such defense instruction, perhaps because the standard jury instruction makes clear the defense would not apply here[.]

A. Consent

Courts have consistently held that where actual consent exists, no need exists to rely on Florida’s implied consent laws or to obtain a warrant. Robertson v. State, 604 So. 2d 783, 790 (Fla. 1992) (“If the defendant has consented to the test, or consent is implied on some basis independent of the DUI laws, then the blood test falls wholly outside the scope of the implied consent law.”); State v. Meyers, 261 So. 3d 573, 574 (Fla. 4th DCA 2018) (“The Florida Supreme Court has explained . . . that if a defendant expressly consents to a blood test, ‘then the blood test falls wholly outside the scope of the implied consent law.’” (quoting Robertson, 604 So. 2d at 790)); State v. Liles, 191 So. 3d 484, 487 (Fla. 5th DCA 2016) (“One of the well-established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent.”).

B. Exigent Circumstances

Exigent circumstances is another such exception. But the Court made clear that “while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, . . . it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” McNeely, 569 U.S. at 156.

C. Search Incident to Arrest

Most recently, the Court held that “a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.” Birchfield, 579 U.S. at 476. The Court further held “that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id. at 477. In doing so, the Court disavowed that statutory “implied consent” can serve as a substitute for actual consent or a warrant.

D. Warrant Requirement

These recent decisions lead to but one conclusion. Unless a motorist gives actual consent or a court determines under the totality of the circumstances that exigent circumstances exist, a warrant must be obtained for a blood draw to satisfy the Fourth Amendment. See Liles, 191 So. 3d at 488. This is true regardless of a state’s implied consent laws.

Following McNeely, we must read section 316.1933, Florida Statutes, as a directive to law enforcement to obtain blood samples in serious and deadly crashes when probable cause exists to suggest impaired driving. To comply with McNeely, the statute must assume the blood draw will be obtained with a warrant, absent consent or proof of exigent circumstances. Id. at 489.

E. Implied Consent Laws

In State v. Marshall, 418 So. 3d 647, 650–51 (Fla. 4th DCA 2025), we reviewed Florida’s implied consent laws. Those laws provide statutory authority for breath, urine, and blood testing under specified circumstances and provide administrative penalties for a motorist’s refusal to comply. See §§ 316.1932–.1933, Fla. Stat. (2024). Those laws, however, are subject to the constitutional safeguards outlined above and addressed by the United States Supreme Court in McNeely and Birchfield.

[W]e conclude the county court did not err in overruling the defendant’s objection to the state’s rebuttal comment. The fact that the defendant had refused to perform roadside exercises or provide a breath sample had been properly admitted into evidence. See § 316.1932(1)(a)1.a., Fla. Stat. (2024) (“The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer ... is admissible into evidence in any criminal proceeding.”). Thus, the state’s reference to those refusals was a proper comment on both the evidence and the defendant’s consciousness of guilt.

While the state’s rebuttal should have been more careful to avoid using the words “he could have shown us” before referring to the defendant’s refusals to perform roadside exercises or provide a breath sample, the full context of that comment is important. Immediately after making that comment, the state permissibly explained how those refusals demonstrated the defendant’s consciousness of guilt. As our sister court recently observed in Osorio v. State, 428 So. 3d 220 (Fla. 3d DCA 2026)[.]

The depraved mind element is what separates second-degree murder from manslaughter, and it requires evidence of ill will, hatred, spite, or an evil intent. Porter v. State, 384 So. 3d 839, 841–42 (Fla. 1st DCA 2024); Perez v. State, 187 So. 3d 1279, 1282 (Fla. 1st DCA 2016). When the evidence shows no more than an impulsive overreaction to an attack or a perceived threat, it supports a conviction for manslaughter, not second degree murder. Perez, 187 So. 3d at 1282.

Ford illustrates the kind of conduct—prior enmity, initiation, and consciousness of guilt—that supports a finding of a depraved mind. And all these factors are absent from this record.

Our conclusion accords with a settled line of decisions reducing second-degree murder convictions to manslaughter where a defendant used excessive force in response to a sudden attack by an unarmed aggressor, absent any history of enmity. See Sandhaus v. State, 200 So. 3d 112, 116 (Fla. 5th DCA 2016); Dorsey v. State, 74 So. 3d 521, 524–25 (Fla. 4th DCA 2011); Poole v. State, 30 So. 3d 696, 698–99 (Fla. 2d DCA 2010); Rayl v. State, 765 So.2d 917, 919–20 (Fla. 2d DCA 2000). In each case, the defendant armed himself against an unarmed victim and used lethal force in the heat of a confrontation he did not provoke, and in each case the court held that the evidence supported manslaughter rather than second-degree murder. The State offered no basis to distinguish these decisions, and we find none.

Because the State did not present legally sufficient evidence from which a rational jury could find that Peoples acted with a depraved mind, the conviction for second-degree murder cannot stand. The evidence does, however, support a conviction for manslaughter with a firearm. See § 782.07, Fla. Stat. The proper remedy is to reverse the conviction and remand for entry of judgment and resentencing on the lesser included offense. See Dorsey, 74 So. 3d at 525.

see also Duty v. State, 322 So. 3d 770, 772 (Fla. 1st DCA 2021) (“Unlike the strategic decision to call a witness to testify at trial, the failure to reasonably investigate and locate witnesses can often serve as a colorable claim of ineffective assistance of counsel.” (citation omitted)); Yarbrough v. State, 871 So. 2d 1026, 1031 (Fla. 1st DCA 2004) (“Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” (citation modified)). On remand, the postconviction court is directed to either grant Jackson leave to amend his claim, grant an evidentiary hearing on the claim, or attach the portions of the record that would conclusively refute this claim. See Gonsalez v. State, 359 So. 3d 870, 871–72 (Fla. 5th DCA 2023); Smith v. State, 150 So. 3d 1205, 1206–07 (Fla. 5th DCA 2014).

Anthony Pritchett, with the Florida Department of Corrections, testified without objection during the State’s case that Appellant had been convicted in New Jersey of “possession, view, or control of less than 1,000 items of child sex exploitation or abuse.”

After Mr. Pritchett’s testimony was received, the State proffered copies of the New Jersey sex-offender conviction documents. Appellant objected to the copies as proof of the New Jersey conviction because they were “plain” rather than “certified” copies and lacked fingerprints. The trial court overruled Appellant’s objections, found that under the circumstances of this case Gosling was not controlling, and denied Appellant’s motion for JOA.

Because the State proved the qualifying New Jersey sexoffender conviction and Appellant’s failure to timely register through unobjected-to testimony, the trial court’s ruling is supported by competent, substantial evidence; thus, Appellant’s motion for JOA was properly denied.

We need not address in detail each of the statements that Green contends were improper. It is clear from the trial transcript that the prosecutor made the irrelevant evidence a feature of the trial, made improper statements that amounted to personal opinions of guilt, and made improper statements implicating Green's right to not testify and shifting the burden of proof. The improper statements taken together with the State's use and emphasis on irrelevant evidence as discussed above lead to the conclusion that their cumulative effect constitutes fundamental error requiring reversal of the judgment and sentences for sexual battery and battery. See Ritchie v. State, 344 So. 3d 369, 388 (Fla. 2022) ("[W]e consider whether the combined prejudice resulting from any errors in the prosecutor's closing argument together with the erroneous admission of improper victim impact testimony amounts to fundamental error."); cf. Gonzalez v. State, 136 So. 3d 1125, 1166 (Fla. 2014) ("The cumulative effect of multiple harmless errors does not amount to fundamental error where the errors share three decisive factors: (1) none of the errors are fundamental; (2) none go to the heart of the State's case; and (3) the jury would still have heard substantial evidence in support of the defendant's guilt.").

At trial, the State entered into evidence a steak knife found in a small, recessed area in Green's van along with two sealed, unused condoms found inside the van. Notably, there was no evidence presented at trial that a knife or condoms were used in or connected to the commission of the crimes.

At trial, the State entered into evidence a steak knife found in a small, recessed area in Green's van along with two sealed, unused condoms found inside the van. Notably, there was no evidence presented at trial that a knife or condoms were used in or connected to the commission of the crimes.

Agatheas v. State (Agatheas II), 77 So. 3d 1232 (Fla. 2011), is instructive on this issue. There, Nicholas Agatheas was arrested for a murder that had occurred five years prior. Id. at 1234. At the time of his arrest, he had with him a backpack containing a revolver, a bandana, latex gloves, a flashlight, batteries, a lighter, and a screwdriver. Id. The State introduced this evidence at trial, and it was admitted without objection.

The supreme court agreed and concluded that "[u]nder the facts of this case, the only possible relevance of the 45-caliber revolver would be to demonstrate Agatheas's bad character or propensity." Id. at 1239. This was improper because "it is axiomatic that evidence of collateral crimes, wrongs, or acts committed by the defendant is not admissible where its sole relevance is to prove the bad character or propensity of the accused." Id. And "the erroneous admission of irrelevant collateral crimes evidence 'is presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt.' " Id. at 1240 (quoting Robertson v. State, 829 So. 2d 901, 913-14 (Fla. 2002)). Moreover, the court determined that the bandana and latex gloves found in Agatheas's backpack were not relevant to the crime. Id. at 1240-41.

Like the inadmissible and irrelevant evidence in Agatheas II, "the only possible relevance of the [knife and unused condoms] would be to demonstrate [Green's] bad character or propensity." See 77 So. 3d at 1239. No link was established between these items and the charged crimes. Thus, it was error for them to have been admitted into evidence.

See Tingley v. State, 549 So. 2d 649, 651 (Fla. 1989) (“[T]ime is not ordinarily a substantive part of an indictment or information and there may be a variance between the dates proved at trial and those alleged in the indictment or information as long as: (1) the crime was committed before the return date of the indictment; (2) the crime was committed within the applicable statute of limitations; and (3) the defendant has been neither surprised nor hampered in preparing his defense.”); Sanchez v. State, 956 So. 2d 1261, 1262 (Fla. 4th DCA 2007) (“Here, appellant did not request a statement of particulars, nor did he object to evidence of the erroneous date. Further, it was clear at trial that the state was alleging only a single incident.”).

“[T]he doctrine of transferred intent does not apply to the ‘crime of attempted murder of [an] unintended victim.’” King v. State, 264 So. 3d 987, 988 (Fla. 4th DCA 2019) (citation omitted). Thus, “if the issue is whether the defendant attempted to murder multiple victims, then such specific intent is not subject to transfer but rather such intent should be independently evaluated as to each victim.” Bell v. State, 768 So. 2d 22, 28 (Fla. 1st DCA 2000) (quoting Brady v. State, 700 So. 2d 471, 473 (Fla. 5th DCA 1997)).

In Fisher v. State, 715 So. 2d 950, 951–52 (Fla. 1998), the Florida Supreme Court found that the evidence of premeditation was insufficient where the defendant was present in a vehicle from which 35 shots were fired at a house in retaliation for a prior altercation, killing a five-year-old child. Because the defendant and his cohorts may have “merely intended to frighten [the intended target] or to damage his car,” the Florida Supreme Court found insufficient evidence of premeditation. Id. at 952.

Similarly, in Shellman v. State, 620 So. 2d 1010, 1011–12 (Fla. 4th DCA 1993), we reduced attempted first-degree murder convictions to attempted second-degree murder. There, the defendant repeatedly fired his rifle into a vehicle and successfully completed his plan to kill the intended victim, but nothing in the record indicated that the defendant intended to kill the other occupants of the victim’s vehicle. Id.

Merely firing a handgun in the general direction of an occupied structure or vehicle does not, without more, establish a premeditated design to murder the occupants. See Fisher, 715 So. 2d at 952; Shellman, 620 So. 2d at 1012.

By firing six rounds at a moving vehicle, he committed an act “imminently dangerous” to the lives of the occupants and “evinced a depraved mind regardless of human life.” Cf. Shellman, 620 So. 2d at 1012 (“In repeatedly firing his rifle into Brown’s vehicle, appellant committed an act ‘imminently dangerous’ to the lives of Ransom and Fudge and ‘evinced a depraved mind regardless of human life.’”). Contrary to appellant’s argument, there is no significant distinction between shooting “directly at” or “into” an occupied vehicle for purposes of the depraved mind element of attempted second-degree murder. Attempted second-degree murder does not require proof of an intent to kill.

A defendant may be convicted of multiple counts of resisting arrest without violence if their behavior constitutes two or more separate acts. See Johnston v. State, 357 So. 3d 156, 162 (Fla. 4th DCA 2023). However, a defendant’s continuing resistance to an arrest can amount to a single act of resistance, even if several officers are involved in the effort. See Bruzzese v. State, 293 So. 3d 1074, 1076 (Fla. 5th DCA 2020); see also R.J.R. v. State, 88 So. 3d 264, 267 (Fla. 1st DCA 2012)

When determining if K.B.’s actions constitute a continuous act, this Court must consider whether: (1) separate victims are involved; (2) whether the acts occurred in separate locations; (3) whether there has been a temporal break between the incidents; (4) whether there was an intervening act; and/or (5) a new criminal intent has formed. See Fleming v. State, 75 So. 3d 397, 400 (Fla. 5th DCA 2011) (citing Vasquez v. State, 778 So. 2d 1068, 1070 (Fla. 5th DCA 2001)); see also R.J.R., 88 So. 3d at 267 (citing Partch v. State, 43 So. 3d 758, 761 (Fla. 1st DCA 2010)).

[S]ee generally Clapsaddle v. State, 545 So. 2d 946, 947 (Fla. 2d DCA 1989) (“The test to be applied in determining the validity of a search warrant is whether, when a search warrant is read in a common sense, not technical, way, it shows ample facts to establish probable cause and enables the searcher, with reasonable effort, to identify the place to be searched. The test is one of practical accuracy, not technical nicety.”).

Florida courts have criticized the use of testimony from police officers regarding their experience with other criminals as substantive proof of a particular defendant’s guilt or innocence. See Lowder v. State, 589 So. 2d 933, 935 (Fla. 3d DCA 1991). This is because, “[t]he only purpose of testimony regarding criminal behavior patterns is to place prejudicial and misleading inferences in front of the jury.” Id. (citation omitted). But note that otherwise inadmissible testimony may be admitted once the defendant “opens the door” to that subject. Rodriguez, 753 So. 2d at 42.

[I]f the violation involved a victim who was a minor and, in the course of committing that violation, the defendant committed a sexual battery under chapter 794 or a lewd act under s. 800.04 or s. 847.0135(5) against the minor; s. 787.01(3)(a) 2. or 3.; s. 787.02(3)(a) 2. or 3.; s. 794.011… the subtotal sentence points are multiplied by 2.0. If applying the multiplier results in the lowest permissible sentence exceeding the statutory maximum sentence for the primary offense under chapter 775, the court may not apply the multiplier and must sentence the defendant to the statutory maximum sentence.

“Generally, a lay witness may not testify in terms of an inference or opinion, because it usurps the function of the jury.” Floyd v. State, 569 So. 2d 1225, 1231–32 (Fla. 1990) (citation omitted). However, a lay witness is permitted to testify in the form of opinion or inference as to what the witness perceived when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

§ 90.701, Fla. Stat. (2025). “Thus, opinion testimony of a lay witness is only permitted if it is based on what the witness has personally perceived.” Stukins v. State, 418 So. 3d 168, 174 (Fla. 4th DCA 2025) (marks and citations omitted).

Although Alli told Special Agent Pierre that he was ignorant of the misrepresentations on the loan application, he did not read the loan documents, and he was unaware of the restrictions on the use of the loaned funds, “‘a statement by a defendant, if disbelieved by the jury, may be considered as substantive evidence of the defendant’s guilt,’ particularly when the ‘elements to be proved for a conviction include highly subjective elements like the defendant’s intent or knowledge.’” United States v. Shabazz, 887 F.3d 1204, 1220 (11th Cir. 2018) (alteration adopted) (quoting United States v. Brown, 53 F.3d 312, 314, 315 (11th Cir. 1995)). This rule “applies . . . to false exculpatory statements made pre-trial.” United States v. Hughes, 840 F.3d 1368, 1385 (11th Cir. 2016). A reasonable jury could find that Alli was not telling the truth and “infer that the opposite of what he was said was true.” Shabazz, 887 F.3d at 1220 (alteration adopted) (citation and internal quotation marks omitted).

Under Rule 106, “[i]f a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part—or any other statement—that in fairness ought to be considered at the same time.” FED. R. EVID. 106. The rule allows parties to “correct an incomplete and misleading impression” by compelling the introduction of additional material that is “necessary to qualify, explain, or place into context the portion already introduced.” United States v. Herman, 997 F.3d 251, 264 (5th Cir. 2021) (citation and internal quotation marks omitted). To use a famous illustration, if one accused the Psalmist of blasphemy for writing, “There is no God,” the rule of completeness would compel introducing the preceding clause of the verse: “The fool says in his heart, ‘There is no God.’” Psalm 14:1 (New American Bible, Revised Edition); 7 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2094, at 601 (James H. Chadbourn rev. 1978) (citing Algernon Sidney’s Trial, 9 How. St. Tr. 818, 829, 868 (K.B. 1683)) (discussing the common law precursor to Rule 106). But Rule 106 “does not automatically make [an] entire document admissible once one portion has been introduced,” United States v. Macrina, 109 F.4th 1341, 1348 (11th Cir. 2024) (citation and internal quotation marks omitted), and it is not a vehicle for a party “to affirmatively advance [his] own, alternative theory of the case,” Herman, 997 F.3d at 264.

[B]ecause Alli’s requested excerpts are either duplicative of or unrelated to the statements the prosecution introduced, they were not “necessary to qualify, explain, or place into context the portion already introduced.” Macrina, 109 F.4th at 1348 (citation and internal quotation marks omitted).

We review a trial court’s decision to admit a witness’s prior consistent statements for abuse of discretion. Tumblin v. State, 29 So. 3d 1093, 1100 (Fla. 2010). A witness’s prior consistent statements are generally hearsay that are inadmissible at trial. Harris v. State, 843 So. 2d 856, 861 (Fla. 2003); see also § 90.802, Fla. Stat. (“Except as provided by statute, hearsay evidence is inadmissible.”). But section 90.801(2), Florida Statutes, deems certain prior consistent statements non-hearsay:

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: . . . (b) Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication.

But the defense’s cross-examination of Johnson at least implicitly charged that Johnson’s testimony was unreliable because he was hoping to receive a deal from the State on his charges. The jury could have reasonably inferred from Johnson’s answers to the defense’s questions that he had recently fabricated his account to receive consideration from the State. Thus, the defense opened the door for the State to rebut the charge of improper motive or recent fabrication with Johnson’s prior consistent statements. See Tumblin, 29 So. 3d at 1101 (finding that prior consistent statements could be admitted where the cross-examination of a witness impliedly charged that “his trial testimony was a recent fabrication intended to preserve his plea deal.”).

Next, Nixon argues that Johnson did not make his statements to the detective before his improper motive existed… “the motive to fabricate does not necessarily arise simply because the witness has been arrested and charged with a crime.” Shellito v. State, 701 So. 2d 837, 841 (Fla. 1997); see also Edwards v. State, 662 So. 2d 405, 406 (Fla. 1st DCA 1995) (“The mere fact that police are conducting an investigation into the crime does not . . . automatically establish a motive to falsify on the part of the witness.”). Nixon fails to present any evidence beyond the mere facts of an arrest and an investigation to show that Johnson’s improper motive existed when he spoke with the detective, but before he met with the prosecutor. He, therefore, fails to meet his burden of demonstrating that the trial court abused its discretion by admitting Johnson’s prior consistent statements.

Torbit claims that he was entitled to introduce evidence of the sexual battery against B.B. because section 90.404(2)(c) permits a “relaxed standard” for admission of collateral sexual offenses. However, by its express terms, section 90.404(2)(c) only permits the admission of “evidence of the defendant’s commission of other crimes, wrongs, or acts involving a sexual offense.” § 90.404(2)(c)1., Fla. Stat. (emphasis supplied). Therefore, section 90.404(2)(c) does not apply to evidence of a collateral act involving a sexual offense committed by someone other than the defendant. Accordingly, we reject Torbit’s argument that section 90.404(2)(c) applies to admission of evidence involving the sexual battery of B.B.

Whether Fourth Amendment protections extend to contraband thrown during an arrest turns on whether the abandonment was voluntary or involuntary, which in turn depends on whether the arrestee was seized or not at the time of the abandonment. “A person who flees from a show of authority has not been seized, while a person who remains in place and submissive to the show of authority has been seized.” Hollinger v. State, 620 So. 2d 1242, 1243 (Fla. 1993); see also California v. Hodari D., 499 U.S. 621, 626–29 (1991). “An unlawful seizure only takes place if the person either willingly obeys or is physically forced to obey the police request, i.e. there is no unlawful seizure when the person ‘drops then stops,’ even where the drop occurs after an order to stop.” Johnson v. State, 640 So. 2d 136, 138 (Fla. 4th DCA 1994).

In Lang v. State, 671 So. 2d 292, 293 (Fla. 5th DCA 1996), this Court examined a case where Lang was unlawfully stopped by police while on foot. The deputy pulled his patrol car behind Lang and began getting out of it, when Lang put his hand in his pocket. Id. The deputy instructed Lang to step over to his patrol vehicle, and Lang began doing so. Id. The deputy asked Lang to take his hand out of his pocket, and when Lang did so, Lang threw a pill bottle away. Id. This Court held that Lang had “reasonably concluded he was not free to leave” and had commenced complying with the deputy’s instructions when he dropped the pill bottle. Id. at 294. Therefore, the abandonment of the pill bottle was not voluntary. Id. (citing Hodari D., 499 U.S. at 626–29).

By contrast, in State v. Canada, 715 So. 2d 1164, 1164–1165 (Fla. 5th DCA 1998), this Court found a voluntary abandonment of contraband where Canada was seated holding a concealed object when police approached him, did not yield to the police request to reveal what he had in his hand, and instead abandoned the object and attempted to flee.

Here, Sapp testified that he ordered Appellant to stop when he found Appellant again near the apartment complex as Sapp was exiting his truck. Appellant stopped and turned towards Sapp and threw an object to the ground. Sapp testified that Appellant threw the object as Sapp was going towards him to arrest him. Sapp then physically restrained Appellant.

It is also noteworthy that Appellant stopped for Sapp for the first time here, whereas he continued to walk away from Sapp earlier when Sapp first saw him in Sapp’s neighborhood. Thus, Appellant had already complied with Sapp’s order to stop when Appellant threw the pill bottle. These facts align with Lang and are distinguishable from Canada. The abandonment of the pill bottle was involuntary.