AK v. State

• Decision Date: 30 March 2005
• Docket Number: No. 4D04-1034.,4D04-1034.
• Citation: A.K. v. State, 898 So.2d 1112 (Fla. App. 2005)
• Parties: A.K., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

898 So.2d 1112

A.K., a child, Appellant, v. STATE of Florida, Appellee.

No. 4D04-1034.

District Court of Appeal of Florida, Fourth District.

March 30, 2005.

Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

This appeal arises from a final delinquency disposition order finding A.K., a child, to have committed the delinquent act of battery on a person sixty-five years of age or older. We affirm, holding that any error committed by the trial court in admitting evidence of A.K.'s reputation or character was harmless.

A.K. attacked Nick DeMasi, a crossing guard at Plantation Middle School, on the morning of May 21, 2003. DeMasi was born on March 13, 1931, making him seventy-two years old. DeMasi testified that A.K. hit him "for no reason at all" while he was working. At the time, DeMasi was wearing his crossing guard uniform — blue pants, blue shirt, a reflective vest, and a hat — and was carrying a sign. DeMasi testified that A.K. grabbed him, pushed him, shook him, and knocked the stop sign out of his hand.

Deputy James Barder of the Broward County Sheriff's Office, who happened to be passing by in an unmarked car and out of uniform, saw A.K. "throwing punches at the crossing guard." Barder saw A.K. punch DeMasi in the chest at least twice with a closed fist. DeMasi was trying to back away from A.K. and was not swinging his sign at A.K. Barder stopped and approached the scene. Barder testified on cross-examination that he did not see how the incident started and that it is possible that DeMasi hit A.K. first. Upon seeing an adult approaching, two other juveniles attempted to pull A.K. from the scene and towards school. Barder handcuffed A.K. and radioed the Plantation police.

Plantation police officer Lori Primeau arrived on the scene, arrested A.K., and interviewed Barder and DeMasi. A.K. was charged by petition for delinquency with battery on a person sixty-five years of age or older.

At trial, A.K. testified to a different set of events. The day before the alleged attack, A.K. and his "friends from the program called Crawford" were walking to school. A.K. pushed the button to cross the street and the crossing guard told him to stop pushing the button. A.K. kept pushing the button anyway and the crossing guard began cussing at him. A.K. began cussing back. The crossing guard came at A.K. and swung his sign at him. A.K. then went to school. After school, A.K. told his therapist what happened and he showed her the pants the guard allegedly hit with the sign. The pants were introduced into evidence. The sign went through the fabric but did not break A.K.'s skin. A.K. said that the crossing guard hit him twice with the sign. The pants had four holes in them. After A.K. told the therapist about the alleged incident, the therapist let A.K. call his father, who told him to tell the principal.

As A.K. walked to school the next day, intending to tell the principal about the prior day's incident, he again kept pushing the button to cross the street after the crossing guard told him to stop. The crossing guard came at A.K. again with the sign and this time A.K. caught it and threw it. The crossing guard then came at A.K., grabbed him by the throat and started choking him, then hit A.K. repeatedly in the chest. A.K. tried to back away and did not fight back. The crossing guard then backed away. A.K. started cussing at the crossing guard again, walked out to him, and slapped the crossing guard's hat off of his head. A.K. was trying to distract the crossing guard so that he could try to get away. A.K. testified that there were red marks on his neck, but that the officer did not check him for injuries. However, Deputy Barder testified that he did not notice any injuries on A.K. and that A.K. did not complain of any injuries. A.K. also testified that he did not strike The crossing guard at all, not even in self-defense.

On cross-examination, the state challenged A.K.'s version of the events:

Q: He just told you to stop pushing the button?

A: Yes.

Q: Okay. Isn't it true that you heckled and harassed him verbally as well that day? A: Yeah.

Q: Isn't it true that you had friends with you on that day too, correct?

A: Yes.

Q: And isn't it true that those friends say you're a bully?

A: Maybe I am.

Defense counsel objected on grounds that it was irrelevant, hearsay, and a violation of the confrontation clause. The court ruled that the testimony was admissible:

even absent the testimony of the person that supposedly said it. I mean in this case he's charged with the offense of battery on an elderly person or battery. Obviously his character is at issue. The defendant testifies as to his reputation. His own testimony as to his reputation is that he's a bully or he has a reputation of being a bully. That's a particular trait in this trial, whether or not, you know, he has that kind of reputation. He testifies that it's his own character trait.

The court also explained:

I'll tell you why — Well, first of all, I allowed the testimony in, and it's the defendant who said it. It's not somebody else who said it. He says that "Maybe I am," when he's asked if he's a bully, or "Isn't it true that your friends say you're a bully," he says, "Maybe I am." At this juncture, it doesn't really matter what his friend says one way or the other. He's already testified to it. Like I said, you can talk to him on redirect.

A.K. moved for a mistrial based on the use of infamous character evidence, reputation evidence, and violation of the confrontation clause. The trial court denied the motion.

Later in the trial, A.K. testified, "I was living in the program then. So after school, you know, I told my therapist." The trial judge intervened and asked A.K. what program he was in at that time. After A.K. testified that he was in Crawford House, the state asked what type of program that is. A.K. answered that it is a sexual offender program. Both the state and defense counsel moved to strike. The court granted the motion to strike. Defense counsel then moved for a mistrial, which the court denied.

At the close of the evidence, A.K. renewed his motions for mistrial based on hearsay, violation of the confrontation clause, impermissible reputation evidence, and on evidence regarding the child being in a sexual offender program. The court denied the motions, stating: "I think if it was in front of a jury, you'd probably have an arguable motion, but, you know, the benefit of having a court here, it's irrelevant. It means nothing to me."

Before the trial judge made his final ruling on the case, he explained that he heard what the witnesses had to say, judged their credibility, and used common sense. He noted that DeMasi appeared to be 72 years of age and had a very short gait, consistent with somebody who gets older. The judge also noted that DeMasi did not appear to embellish anything in his testimony. The judge found his testimony believable. The judge found that DeMasi's testimony was consistent with Deputy Barder's testimony. He found that all of the state's witnesses were extremely credible because their testimony was very consistent and did not indicate prejudice or bias. The judge thought Deputy Barder was extremely credible in his testimony regarding viewing the incident.

The judge stated that "to the extent that there's any conflict in the testimony between the defendant and the testimony of the victim and Deputy Barder, I believe the testimony of Deputy Barder, and I believe the testimony of the victim." The judge believed there were multiple instances in which A.K. was lying. He believed A.K. lied when he talked about the incident the prior day and the damage to his pants. Additionally, he pointed out the defense argued self-defense, but A.K. did not even admit that he hit the crossing guard, only that he slapped off his hat as a result of the crossing guard choking and punching him. He also listed the facts that A.K. admitted:

He admits that he cussed at the person. He admits that he attempted to harass him and heckle him. He admits that he was angry as a result of the incident that happened the day before. He admits he's fast. He admits he's athletic. He says he didn't retaliate against this man. The only thing he did was slapped his hat off.

The trial court entered a final delinquency disposition order finding A.K. to have committed battery on a person sixty-five years of age or older. Adjudication of delinquency was withheld and A.K. was placed on juvenile probation. A.K.'s two-and-a-half year probation included completing 100 hours of community service work, writing an apology to the victim, and continued counseling, including family counseling and anger management training.

On appeal, A.K. argues that the trial court erred in allowing testimony regarding his reputation and character. "Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that...