Earnest v. State

• Decision Date: 01 April 2020
• Docket Number: No. 1D18-5244,1D18-5244
• Citation: 294 So.3d 425
• Parties: Anthony Devon EARNEST, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

294 So.3d 425

Anthony Devon EARNEST, Appellant,

v.STATE of Florida, Appellee.

No. 1D18-5244

District Court of Appeal of Florida, First District.

April 1, 2020

Rehearing Denied May 7, 2020

Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

Appellant, Anthony Devon Earnest, appeals his convictions and sentences for sexual battery, battery, and false imprisonment. He argues that the trial court erred in denying his motion for mistrial that was based on an alleged discovery violation by the State and in refusing to instruct the jury on battery as a permissive lesser included offense of false imprisonment. For the reasons that follow, we affirm.

The State charged Appellant with three counts of sexual battery, false imprisonment, and felony battery for actions he allegedly perpetrated upon the victim, with whom he had previously had a relationship. In the false imprisonment count, the State alleged that Appellant "did unlawfully forcibly, by threat, or secretly confine, abduct, imprison, or restrain [the victim], without lawful authority and against her will." Prior to trial, the defense took the victim's deposition, during which defense counsel asked her whether, following Appellant's arrest, she ever went with him to the same motel where the two used to go to have sex, to which she replied, "Yes." When asked how many times this occurred, she replied, "One." When asked if she ever had sex with Appellant again, the victim replied, "No." During trial, the victim testified that, prior to going to the motel, she was at a tire store owned by Appellant's cousin. While she was there, Appellant went to the store. At some point during the encounter, Appellant apologized and asked the victim to drop the charges against him. Defense counsel moved for a mistrial, arguing that the State, which was made aware of the additional testimony the day before trial, committed a discovery violation by not informing Appellant of a material change in the victim's testimony. The trial court denied the motion, finding that no violation occurred. The trial court later denied Appellant's request to have the jury instructed on battery as a permissive lesser included offense of false imprisonment. The jury found Appellant guilty of the lesser included offense of battery on the first two sexual battery counts, guilty as charged on the third sexual battery count and the false imprisonment count, and guilty of misdemeanor battery on the felony battery count. This appeal followed.

Appellant first contends that the trial court erred in denying his motion for mistrial that was based upon an alleged discovery violation by the State. See Curry v. State , 1 So. 3d 394, 397–98 (Fla. 1st DCA 2009) (noting that whether a discovery violation occurred may be a factual issue or present a question of law and holding that "if a discovery violation has occurred, the trial court is required by law to grant a Richardson¹ hearing"). As Appellant asserts, a motion for mistrial can preserve a discovery violation claim if the motion reasonably informs the court of the nature of the complaint. See Smith v. State , 7 So. 3d 473, 506 (Fla. 2009).

We find no abuse of discretion in the trial court's denial of Appellant's motion for mistrial. See Mendoza v. State , 964 So. 2d 121, 131 (Fla. 2007) (noting that a trial court's ruling on a motion for mistrial is reviewed for an abuse of discretion). Although the victim testified at trial about additional circumstances concerning her post-incident meeting with Appellant, there was not a material change in her testimony from the testimony she gave in her deposition when asked specific and narrow questions by defense counsel. As such, no discovery violation occurred. See Andres v. State , 254 So. 3d 283, 293 (Fla. 2018) (explaining that the "[f]ailure to disclose an oral statement which constitutes a material change to a witness's recorded statement is a discovery violation that triggers a full Richardson hearing" and that while "material change" has not been specifically defined, some examples are obvious, such as when a witness's trial testimony transforms him or her from a "who didn't see anything" witness into the only eyewitness to the crime); State v. McFadden , 50 So. 3d 1131, 1133-34 (Fla. 2010) (determining that because a witness's earlier statement was not inconsistent with anything the witness said in her deposition or in any other recorded statement, it did not materially alter a prior written or recorded statement). Cf. Scipio v. State , 928 So. 2d 1138, 1150 (Fla. 2006) (holding that the State committed a discovery violation based upon the material change in testimony of the medical examiner's investigator where the investigator recanted his deposition testimony at trial about a gun being found underneath the victim's body); Washington v. State , 151 So. 3d 544, 546 (Fla. 1st DCA 2014) (holding that a discovery violation occurred based upon a material change in a witness's testimony where the witness was going to testify at trial that the appellant had never lived with her, whereas she testified in her deposition that the appellant lived with her); Cliff Berry, Inc. v. State , 116 So. 3d 394, 417 (Fla. 3d DCA 2012) (noting that a State witness contended in his pretrial sworn statement and deposition that the defendants began stealing jet fuel in June 2002 while he testified at trial that the theft of jet fuel began much earlier and holding that the State had a duty to disclose the material change in testimony).²

In his second and final issue, Appellant argues that the trial court erred in not instructing the jury on battery as a permissive lesser included offense of false imprisonment. A trial court must give a jury instruction on a permissive lesser included offense if the following two conditions are met: (1) the indictment or information must allege all the statutory elements of the permissive lesser included offense, and (2) there...