King v. State, 87-1465

• Citation: 14 Fla. L. Weekly 1325,545 So.2d 375
• Decision Date: 31 May 1989
• Docket Number: No. 87-1465,87-1465
• Parties: 14 Fla. L. Weekly 1325 Ogden KING, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 375

545 So.2d 375

14 Fla. L. Weekly 1325

Ogden KING, Jr., Appellant, v. STATE of Florida, Appellee.

No. 87-1465.

District Court of Appeal of Florida Fourth District.

May 31, 1989.

Rehearing and Rehearing En Banc Denied July 19, 1989.

E. Ross Zimmerman of Weinstein & Zimmerman, P.A., Tamarac, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, Robert S. Jaegers (on the brief), and Joan Fowler, Asst. Attys. Gen., West Palm Beach, for appellee.

PER CURIAM.

This is an appeal by appellant, Ogden King, from his conviction of second degree murder for a bizarre and tragic drug related death. Although we reject King's claim that the charges and evidence are not legally sufficient to sustain his conviction, we reverse for a new trial because we conclude that the trial court erroneously admitted evidence of other misconduct by King not relevant to the present charge.

In the first count of the indictment, King was charged with first degree murder after the victim, his girlfriend, died at the conclusion of an all night bout of drug abuse and sex. The language in the indictment stated in part that King was responsible for the victim's death "unlawfully and from a premeditated design ... by causing neck compression and providing cocaine, contrary to Florida Statute 782.04(1)(a)." (emphasis added). The trial court denied King's motion to dismiss the indictment, strike surplusage, or to require the State to prosecute under only one theory for first degree murder, i.e. either cocaine or strangulation.

At trial, the court admitted evidence concerning King's relationship with his ex-wife, and a previous argument King had with his girlfriend, the victim in this case. The court also admitted, over King's objection, a close-up photograph of the victim's face as she was found at the scene. King moved for a directed verdict at the close of the state's case, and at the close of all of the evidence, on the ground that the state had failed to offer any evidence to show that King intentionally provided cocaine to the victim, or intentionally strangled the victim. These motions were denied and King was found guilty of the lesser offense of second degree murder.

MOTION TO DISMISS

King argues that it was error for the trial court to allow the indictment to encompass two methods of first degree murder in a single count, i.e. providing cocaine and causing neck compression. The caselaw on this point clearly establishes that a single count may contain multiple methods of committing the same offense. See Hamilton v. State, 129 Fla. 219, 176 So. 89 (1937); Croft v. State, 109 Fla. 188, 146 So. 649 (1933); Billings v. State, 89 Fla. 309, 103 So. 628 (1925); Bean v. State, 469 So.2d 768 (Fla. 5th DCA 1984). We reject King's claim that the indictment in this case was legally flawed because the state alleged that death was caused intentionally by both providing cocaine and causing neck compression.

SUFFICIENCY OF THE EVIDENCE

Neither do we find error in the trial court denying King's motions for directed verdict. The thrust of King's argument under this point is that the state failed to offer proof of his intent.

There was conflicting testimony presented at trial on the bizarre nature of the victim's death and how the victim appeared when she was found at the scene. The state claimed that King intentionally gave the victim a fatal amount of cocaine and intentionally strangled her. King claimed that the death resulted from an accidental overdose of cocaine and that the marks on the body were from his attempts to administer Cardio-Pulmonary Resuscitation (CPR) to the victim. The evidence reflected that there were a lot of injuries on the victim's external body. Each side presented conflicting explanations as to the cause and effects of the injuries.

James A. Benz, medical examiner for Palm Beach County, testified that in his opinion the injuries were the result of a beating, but that they could also be explained as an attempt at CPR by a person under the influence of cocaine. He stated that cocaine was a major factor in the victim's death, but in its absence the cause of death would have been strangulation. He stated that the circumstances of the scene indicated to him that a struggle had occurred. Thomas Carroll, the Chief Toxicologist at the county medical examiners office, the state's witness, testified that there was 13.5 milligram per liter of cocaine in the victim's system, an amount more than sufficient to cause death. Significant amounts of cocaine were revealed in vaginal and anal swabs. Dr. Carroll testified that cocaine injected into the vagina or anus is absorbed more quickly and results in higher concentrations of cocaine in the blood. The level of cocaine found in the victim's blood could have possibly caused convulsions, neurological problems, and respiratory collapse or weakening.

Dr. Robert K. Wright, a forensic pathologist, testified that a hyoid fracture on the victim's body was high enough that it could be the product of a mistake in the administration of CPR. He also felt the blood spatterings could be consistent with an attempt at CPR. With the exception of an eye injury, Dr. Wright did not believe any of the victim's injuries were consistent with a beating. He also testified that King's failure to call the police immediately was common for a person on a drug overdose. Dr. Wright stated that an autopsy could not conclusively determine whether the actual cause of death was strangulation or cocaine, but he concluded that the death was an accidental drug overdose. Dr. O'Brien, a specialist in drug and alcohol abuse testified that drug users often act A trial court should rarely, if ever, grant a judgment of acquittal based on the state's failure to prove mental intent. Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982). This is because the proof of intent usually consists of the surrounding circumstances of the case. Id. Where reasonable persons may differ as to the existence of facts tending to prove ultimate facts, or inferences to be drawn from the facts, the case should be submitted to the jury. Victor v. State, 141 Fla. 508, 193 So. 762 (1939). A directed verdict cannot be given if the testimony is conflicting, or lends to different reasonable inferences, tending to prove the issues. Snipes v. State, 154 Fla. 262, 17 So.2d 93 (1944).

frantically. He testified that King in this case could have been acting frantically in administering CPR. Dr. O'Brien said that King may not have been aware of how much force he was using.

In the instant case, the evidence lends itself to different reasonable inferences on the issue of intent. The injuries on the victim were such that the state's experts testified that they could be consistent with a beating. There was also evidence that King had quarrelled with the victim a week prior to, and the night of, the incident. There was testimony that King did not call the police right away, but went off to think about it first. King also cleaned up the hotel room and took a shower after discovering the victim's dead body. Finally, large and lethal doses of cocaine were found in the victim's body, more than enough to cause her death. Given these facts, the trial court properly submitted the case to the jury to determine if King was criminally liable for the death of the victim.

THE PHOTOGRAPH

The trial court allowed into evidence a close-up photograph of the victim as she appeared at the scene of the incident. King argues that the photograph was irrelevant and prejudicial. The trial court's decision to admit a photograph into evidence should not be disturbed unless it was clearly abusive or patently in error. Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975), cert. denied, 429 U.S. 998, 97 S.Ct. 524, 50 L.Ed.2d 608 (1976). The fact that a photograph is gruesome does not bar admissibility if it is relevant to any fact at issue. Adams v. State,...