Kegler v. State

• Decision Date: 13 January 2021
• Docket Number: Case No. 2D19-3479
• Citation: Kegler v. State, 313 So.3d 824 (Fla. App. 2021)
• Parties: Kenneth James KEGLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

313 So.3d 824

Kenneth James KEGLER, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D19-3479

District Court of Appeal of Florida, Second District.

Opinion filed January 13, 2021.

Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Kenneth James Kegler appeals an order revoking his community control and the resulting sentences in two circuit courtcases, one for felony petit theft and one for grand theft.Kegler raises two issues on appeal, and one requires reversal.Because the State failed to prove Kegler willfully and substantially violated his community control by being away from his approved residence without the permission of his supervising officer, we reverse the revocation order and sentences and remand for reinstatement of community control.

After Kegler entered a guilty plea in the two circuit courtcases on May 20, 2019, the trial court imposed concurrent sentences of twenty-four months of community control followed by twenty-four months of probation.Officer Graham filed an affidavit of violation of community control alleging that Kegler violated condition 16 by failing to remain confined to his approved residence.The affidavit asserted that Kegler was not home when a home visit was attempted at 4:50 p.m. on May 20, 2019, and that Kegler did not have the prior approval of his officer to be away from his residence.The affidavit was dismissed, and Kegler continued on community control.

On June 27, 2019, Officer Walthour filed an affidavit alleging the violation of community control that is at issue here.The affidavit alleged that Kegler violated condition 16 by failing to remain confined to his approved residence in that Kegler was away from his residence at 5:37 a.m. on June 21, 2019, without prior approval when Officer Walthour attempted a home visit.

At the violation hearing, Officer Walthour testified that he supervised Kegler and that condition 16 of his community control required that he remain confined to his residence unless his schedule said otherwise.Officer Walthour testified that the prior officer, Officer Graham, had instructed Kegler on the conditions of his supervision.Kegler's schedule for June 21, 2019, reflected that he was to be home all day.

Officer Walthour went to Kegler's residence at 5:37 a.m. on June 21, 2019.The officer rang the doorbell and knocked "[a]t least three times."The officer signaled his partner to call Kegler's cell phone as a courtesy, and Kegler did not answer his cell phone.His partner made two phone calls.When asked if there were any cars at the residence, Officer Walthour stated that it was "an apartment complex so there were multiple cars out there."Officer Walthour was unable to make contact with Kegler at that time.

Kegler's wife, Jessica Kegler, testified for the defense.Mrs. Kegler works for Lyft, and on June 21, 2019, she was in her car at 5:25 a.m. getting ready to leave for an airport pickup.She sat in her car for five or six minutes before she left.At 5:25 her husband was standing in front of her car.When she pulled out of the complex five or six minutes later, she saw him turn around and walk back inside.It was still dark outside when she left.

Her husband is on medication for mental health issues, and when he takes the medicine she is unable to wake him the next day.On days that he does not take his medications, he gets up with her.He did not take his medication the prior night, but she described him as groggy that morning.Her husband had been up for the last two days because he feared missing a visit from his officer.They had installed a doorbell because it was hard to hear in the back of the townhouse.There are three separate rooms before getting to the bedroom in the very back.

On cross-examination, Mrs. Kegler said she could see the door of her residence from her car, that she was in her car at 5:25, and that she left "[a]bout six minutes later."Her husband always walks her out because of snakes.At 5:31 when she was pulling out, her husband was turning back and going inside.

Kegler testified that he was at home on June 21, 2019, at 5:37 a.m.He walked his wife out to her car at 5:25 a.m.It is part of his routine to walk her outside because it is dark and there are snakes.After she pulled away, Kegler went back inside, locked the door, and set the alarm.He went to his bedroom in the back of the residence, laid down, watched television, and fell asleep.He had not taken his medications that make him groggy "because [he] had been violated one time for not answering the door so [he] was trying to stay awake" in case his supervising officer came to his residence.

The trial court found Kegler in violation and noted that Kegler had "tailored his story to show he was up."The trial judge stated, "[T]he man said I believe truthfully he went and watched television so it was never this sleepy business."The trial court determined that Keglers' own testimony showed that Kegler "wasn't passed out or sleeping."The trial court mentioned an earlier violation for not being at home that the court had dismissed and said the court had given Kegler "a freebie."The court had "warned [Kegler] not to come back" and "to open the door next time or [he was] going to go to prison."The court also stated that if Kegler's phone was on and he was up, he would have heard the phone call at 5:37.Kegler said he would have answered the phone if he had heard it and "would have come to the door if [he] had heard the bell."The court stated that it did not believe Kegler's story and that "[his] wife's testimony as distinct as it is sunk [his] ship, okay, because she puts [him] up at that time."The trial court revoked Kegler's community control and imposed concurrent sentences of sixty months in prison.

Kegler contends on appeal that the State failed to prove a willful and substantial violation of community control based on Kegler's failure to answer his door when his supervising officer visited at 5:37 a.m. [Corey] Brown v. State, 280 So. 3d 1117(Fla. 2d DCA2019), and other cases from this district support Kegler's contention that the State failed to meet its burden to prove that he committed a willful and substantial violation of condition 16 for being away from his approved residence without the permission of his supervising officer.

The State has the burden to prove a violation of community control by the greater weight of the evidence.Brown, 280 So. 3d at 1118;Bravo v. State, 268 So. 3d 193, 196(Fla. 2d DCA2018)."Evidence that gives rise to multiple reasonable inferences, only one of which establishes a violation, does not meet this standard."Brown, 280 So. 3d at 1118.Upon appellate review, we must first determine whether competent, substantial evidence supports the trial court's finding of a willful and substantial violation.Savage v. State, 120 So. 3d 619, 621(Fla. 2d DCA2013).When competent, substantial evidence supports a finding of a willful and substantial violation, we then review the decision to revoke supervision for an abuse of discretion.Id. at 623.

When the inference that a person under supervision "was not home is just one of several reasonable inferences that arise from the evidence of his failure to answer the door, the greater weight of the evidence [does] not establish a willful and substantial violation" for being away from an approved residence.Brown, 280 So. 3d at 1120.In Brown, the community control officer testified that she went to Brown's approved residence when he should have been home at 6:50 a.m. Id. at 1118.She first called his cell phone, but he did not answer.She then knocked on his door "several times very hard," yet still no one answered.Id.She left a note in his door jamb advising Brown to call her immediately, but the officer never received a call back from Brown.

Brown testified that he was at home but asleep and did not hear his phone ring or a knock on the door.Id.He also did not find the note from his officer when he left for work.Brown usually woke up between 7:30 and 7:45 to get ready for work.His bedroom at the back of his residence was "about seventy-five feet from the front door."Id.

Rejecting Brown's explanation for why he did not answer the door, the trial court found Brown in willful and substantial violation of his community control.Id.Relying on [Tamika]Brown v. State, 813 So. 2d 202(Fla. 2d DCA2002), this court determined that the State's evidence was legally insufficient when it presented testimony "that no one answered the door in response to a knock."[Corey]Brown, 280 So. 3d at 1119.This court explained as follows:

Even if the trial court rejected Brown's testimony that he was asleep, the record contains no direct evidence that Brown was not home.Instead, the only direct evidence was that no one answered Brown's door when Shaw knocked.From this evidence, the court could certainly infer that Brown was not home.But it could just have reasonably inferred that Brown was asleep, in the shower, or otherwise occupied.The State did not present any evidence to show how long Shaw stayed outside Brown's door or how long she continued to knock.

Id.Further, there was no evidence that the knocking was so loud that it woke neighbors.Id.

This court concluded that "the inference that Brown was absent from his home was simply one of several reasonable inferences that could have been made from the State's evidence, rendering the State's evidence legally insufficient to prove a violation of community control."Id. at 1120.Observing that a supervising officer often visits "a residence early in the morning or late at night,"this court gave the following warning:

[T]he approach of simply knocking on the door and then declaring a violation when no one answers provides strong potential

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