Slydell v. State, 4D00-1846.

Citation792 So.2d 667
Decision Date29 August 2001
Docket NumberNo. 4D00-1846.,4D00-1846.
PartiesRobert SLYDELL, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Robert Slydell appeals his conviction for resisting an officer without violence, which he contends is fundamentally erroneous because, as a matter of law, he did not commit the crime of resisting the lawful authority of a police officer. We agree and reverse.

FACTS

On January 28, 2000, at about 11:45 p.m., Stuart Police Officer Flemur Zenelovic was on patrol in the 700 block of Tarpon Avenue investigating a suspect for selling narcotics. Zenelovic could not locate the suspect; however, he observed appellant walking in an apartment complex located at 705-733 Tarpon Avenue. The owner of the property had given Stuart police officers authority to issue warnings to suspected trespassers and had posted "No trespassing" signs on the buildings.1 Because Zenelovic did not recognize appellant as someone he had ever seen in the area, he decided to investigate appellant for trespassing.

Zenelovic radioed Sergeant Thomas Harmer for back-up assistance. Harmer, who was just a few blocks away, pulled over and got out of his patrol vehicle. As Harmer started walking towards Zenelovic, he noticed appellant walking towards him. Appellant turned around and started walking the other way, between the two officers. Like Zenelovic, Harmer did not recognize appellant, although he had worked in the area for eighteen years. Zenelovic approached appellant and asked him his name and whom he was visiting at the location. Appellant responded, "Why the fuck you want my name?" Shortly after Zenelovic began questioning appellant, he noticed that appellant was holding a can of beer with a piece of napkin or paper towel between the can and his hand. Appellant turned and appeared to be trying to conceal his hand behind his leg. When Zenelovic asked appellant what he had in his hand, appellant started to walk away from the officers and headed towards an alley. Just as appellant was "breaking" and about to run, Zenelovic reached out and grabbed appellant. The two officers held appellant and forced him to the ground. During the struggle, appellant dropped the beer can. Appellant placed the napkin in his mouth and then spat it out. Another Stuart police officer, LoGalbo, recovered the napkin from the ground. It contained several pieces of crack cocaine.

Appellant was charged with possession of cocaine, possession of drug paraphernalia, and resisting an officer without violence. A jury found him guilty of all charges. Appellant appeals only his conviction for resisting without violence, which he contends is fundamentally erroneous. He argues that, because neither officer possessed a founded suspicion that he was engaged in any criminal activity, he did not have to identify himself and was free to walk away from the officers. Consequently, when the officers seized him, they were not performing a legal duty, and he did not commit a crime in non-violently resisting them.

PRESERVATION OF SUFFICIENCY OF EVIDENCE ISSUE

The state first argues that appellant failed to preserve this issue for appeal, because he did not raise sufficiency of the evidence on the resisting charge in a motion for judgment of acquittal. As authority, the state cites State v. Barber, 301 So.2d 7, 9 (Fla.1974). In Barber, the supreme court stated:

[U]nless the issue of sufficiency of the evidence to sustain a verdict in a criminal case is first presented to the trial court by way of an appropriate motion, the issue is not reviewable on direct appeal from an adverse judgment. No such appropriate motion having been made in the trial court in this cause, the question of sufficiency of the evidence was not open to appellate review.

The state acknowledges, however, that our court and courts in other districts have reached different conclusions on whether a sufficiency issue can be raised for the first time on direct appeal. See Griffin v. State, 705 So.2d 572 (Fla. 4th DCA 1998)

; Harris v. State, 647 So.2d 206, 208-209 (Fla. 1st DCA 1994). But cf. Sanders v. State, 765 So.2d 778 (Fla. 1st DCA),

rev. granted, No. SC00-1688, 789 So.2d 348 (Fla. Mar.30, 2001) (failure to prove elements of a charged offense does not constitute fundamental error which may be raised for the first time on appeal).

In Griffin, we held that a criminal "conviction is fundamentally erroneous when the facts affirmatively proven by the state simply do not constitute the charged offense as a matter of law." 705 So.2d at 574. There, the defendant was convicted of kidnaping a three-year old child during a store robbery. Although the defendant, in moving for judgment of acquittal, did not specifically set forth the grounds he later argued on appeal, we held that his kidnaping conviction constituted fundamental error, because no kidnaping occurred, as the child was not tied up or confined.

In so ruling, we cited Nelson v. State, 543 So.2d 1308 (Fla. 2d DCA 1989). There, the Second District Court of Appeal found fundamental error in a conviction for resisting an officer without violence. The state's proof at trial established that the defendant ran at the sight of a marked police cruiser. Holding that the defendant's flight, standing alone, did not constitute the crime of resisting a police officer in the lawful execution of a legal duty, the court reversed the conviction. It did so notwithstanding the defendant's failure to state the correct grounds in a motion for judgment of acquittal. The court stated:

Generally, a defendant must articulate the correct grounds in a motion for judgment of acquittal in order for an appellate court to review the issue. This case, however, is not the usual failure of proof case. Instead, this is a situation where Nelson's conduct did not constitute the crime of resisting an officer. Even though this issue was not raised in the trial court, it would be fundamental error not to correct on appeal a situation where Nelson stands convicted of a crime that never occurred.

Id. at 1309 (citations omitted).

Harris also involved a conviction for resisting an officer without violence. There, the First District Court of Appeal determined that the evidence was insufficient to support the crime of resisting an officer without violence and reversed the conviction even though the defendant had failed to move for acquittal on the charge. The court said that "conviction of a crime which did not take place is a fundamental error, which the appellate court should correct even when no timely objection or motion for acquittal was made below." 647 So.2d at 208.

ANALYSIS

To determine whether appellant's conduct in fleeing the officers constituted resisting or obstructing an officer, we must first decide whether the officers were engaged in the lawful execution of a legal duty at the time of his flight. For a conviction for resisting an officer without violence under section 843.02, Florida Statutes, the state must show that: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of the lawful duty. As we explained in H.H. v. State, 775 So.2d 397 (Fla. 4th DCA 2000), an individual may be guilty of unlawfully obstructing an officer if he flees while knowing the officer's intent to detain him and the officer is justified in stopping and detaining him. See also V.L. v. State, 790 So.2d 1140 (Fla. 5th DCA 2001)

; S.G.K. v. State, 657 So.2d 1246 (Fla. 1st DCA 1995).

To stop and detain a person for investigation, an officer must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. See Popple v. State, 626 So.2d 185, 186 (Fla.1993)

; § 901.151(2), Fla. Stat. (2000). Whether an officer's suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop. See Travers v. State, 739 So.2d 1262 (Fla. 2d DCA 1999); McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986). Where an investigatory stop is prompted by an officer's lack of knowledge as to whether a person is engaged in any criminal activity, such a detention is supported by no more than a hunch. See Turner v. State, 552 So.2d 1181, 1182 (Fla. 4th DCA 1989). A mere "hunch" that criminal activity may be occurring is not sufficient. See McCloud, 491 So.2d at 1167.

In this case, the criminal activity that the police were investigating was trespassing. Section 810.09(1), Florida Statutes, states that the crime of trespass occurs "when an individual, without being authorized, willfully enters upon or remains on property as to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, etc." See also Burgess v. State, 630 So.2d 666 (Fla. 4th DCA 1994)

. When the officers approached appellant, they had only a "hunch" that he was trespassing because they did not recognize him. They possessed no articulable facts to reasonably suspect that appellant had unlawfully entered or remained on the premises.

The officers testified that they frequently patrolled the area, but they did not claim to know all of the residents by sight. Moreover, they acknowledged that "it's a highly transient area." The record does not contain a description of the physical layout of the apartment complex or an estimate of the number of residents housed there. Further, no evidence was presented about any common physical characteristics or traits of the complex's residents and visitors—such as race, ethnicity, or age—that would shed any light on whether there was anything ...

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