Francis v. State, 98-2546.
| Decision Date | 09 June 1999 |
| Docket Number | No. 98-2546.,98-2546. |
| Citation | 736 So.2d 97 |
| Parties | Nellie FRANCIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Gentry Denise Benjamin, Assistant Attorney General, West Palm Beach, for appellee.
Nellie Francis ("Nellie") timely appeals after a jury found her guilty of resisting and/or obstructing a police officer without violence in violation of section 843.02, Florida Statutes (1997). She raises two points on appeal, both directed to her motion for judgment of acquittal. We affirm.
This case began after 14 year-old Sheldon Francis accused his father and Nellie's husband, Michael Francis, of beating him. Floyd Francis, Sheldon's brother, called 911. A Broward Sheriff's Office deputy, Donald Banas, responded to the call at the Francis residence. Floyd told Banas that "everything's okay" and "I don't need you anymore." After further questions from Banas, Floyd stated Sheldon was unconscious in the T.V. room.
Banas entered the house and saw Sheldon in apparent "medical distress." Banas testified that Nellie intervened and stepped in front of him when he tried to speak with Sheldon. He testified that she stated, "[I]t's okay; we don't need you." He testified that she then blocked his path, identified herself as a Broward Sheriff's Office deputy, and asked him not to go further in his investigation.
Banas saw numerous bruises on Sheldon's body and removed him from the room where his father and stepmother were. Banas then read Michael his rights. Banas testified that Michael admitted to hitting Sheldon with a belt.
In addition to charges alleged against Michael Francis, the state charged Nellie with two counts of child neglect in failing to protect her stepchild, Sheldon, from abuse by his father, and by failing to provide him with the requisite care after such abuse. It also charged her with violating section 843.02 by "unlawfully, knowingly and wilfully" obstructing or opposing Banas in the lawful execution of a legal duty by "falsely inform[ing] said officer that everything was fine in the home when in fact Sheldon Francis was in need of medical attention...."
After the state rested at trial, Nellie moved for judgment of acquittal as to the obstruction charge. The trial court at first opined orally that the state did not prove a prima facie case and granted the motion; however, it then gave the state until the following day to further research the issue. After reading such cases and hearing additional argument from the state, it receded from its ruling the next day and denied Nellie's motion for judgment of acquittal. The jury eventually found her guilty of resisting without violence.
§ 843.02, Fla. Stat. (1997). Thus, to support a conviction for resisting an officer without violence, the state must show (1) that the officer was engaged in lawful execution of legal duty, and (2) that the action by the defendant constituted obstruction or resistance of that lawful duty. Id.; S.G.K. v. State, 657 So.2d 1246 (Fla. 1st DCA 1995).1
Nellie argues that her statement to Banas that everything was fine was per se insufficient under section 843.02 to constitute obstruction. In this regard, courts have held that, with limited exceptions,2 physical conduct must accompany offensive words to support a conviction under this statute. State v. Dennis, 684 So.2d 848, 849 (Fla. 3d DCA 1996); D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995); Wilkerson v. State, 556 So.2d 453, 456 (Fla. 1st DCA), rev. den., 564 So.2d 1088 (Fla.1990). However, the record reflects that Nellie, in addition to stating these words to Banas, physically blocked his path when he went over to investigate Sheldon's physical condition. As such conduct satisfies the second prong of section 843.02, we affirm.
Nellie, nevertheless, posits that because Banas eventually was able to have access to Sheldon, her actions did not constitute obstruction. This analysis is flawed. The test under section 843.02 is not whether Banas ultimately was able to carry out the execution of his legal duties, but rather, whether Nellie resisted his efforts in doing so. Because there is competent substantial evidence that she obstructed Banas' efforts to get close to Sheldon by blocking his path, we hold the court...
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...where the officer in question is 1) serving process; 2) legally detaining a person; or 3) asking for assistance." Francis v. State , 736 So. 2d 97, 99 n.2 (Fla. 4th DCA 1999).The Deputies lacked even arguable probable cause to believe that Johnson was resisting, obstructing, or opposing the......
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