Kohler v. State

• Citation: 344 So.3d 467
• Decision Date: 27 July 2022
• Docket Number: 4D21-1680
• Parties: Dennis Mark KOHLER, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

344 So.3d 467

Dennis Mark KOHLER, Appellant,
v.
STATE of Florida, Appellee.

No. 4D21-1680

District Court of Appeal of Florida, Fourth District.

[July 27, 2022]

Carey Haughwout, Public Defender, and Cynthia L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

Gerber, J.

The defendant appeals from his conviction and sentence for driving under the influence, causing or contributing to injury to person or property. The defendant primarily argues the trial court erred in overruling his hearsay objection to the responding deputy's testimony that the victim had identified the defendant as the driver of the vehicle which had caused the crash. More specifically, the defendant argues the state did not satisfy section 90.801(2)(c), Florida Statutes (2019)’s requirement that the declarant—the victim—had been "subject to cross-examination concerning the statement." That is because the state, during the victim's earlier testimony, did not ask the victim whether she had informed the responding deputy that the defendant had been the driver of the vehicle which had caused the crash. Thus, the defendant argues, the victim was not subject to cross-examination regarding such a statement before the responding deputy later testified to the victim having made that statement.

We agree with the defendant's argument. However, we consider the trial court's error to be harmless, for two reasons: (1) the victim, during her direct examination, presented sufficient circumstantial evidence to show that the defendant was the driver of the vehicle which had caused the crash; and (2) the patrol vehicle video evidence of the defendant, while being transported to jail, showed the defendant making various spontaneous statements incriminating himself as the driver of the vehicle which had caused the crash. Thus, we affirm.

Because this is a harmless error case, we write to explain our reasoning. We will summarize the pertinent trial court proceedings before turning to our review of why the trial court erred and why the error was harmless.

The Pertinent Trial Court Proceedings

The victim testified as follows, in pertinent part. She was driving her vehicle when another vehicle making a U-turn struck her vehicle. The crash damaged her vehicle and caused her injuries. After the crash, the victim exited her vehicle. Within a few seconds, she saw the other vehicle nearby. One person was standing about an arm's length from the other vehicle's driver's side door.

344 So.3d 469

The victim identified the defendant in court as being that person. She testified the defendant appeared to be trying to get back inside the other vehicle, but a bystander approached and blocked the defendant from getting back inside the other vehicle. The victim then saw the bystander lean inside the other vehicle in what appeared to be an attempt to take the keys out of the other vehicle's ignition.

The victim testified that after law enforcement arrived, she told them what happened "mostly on the way to the hospital ... and ... when [she] got to the hospital." During the victim's testimony, the state never asked the victim if she had told the responding deputy that the defendant had been the other vehicle's driver. The victim also never testified she had made such a statement. After the victim testified, the trial court excused her.

The responding deputy testified next. The state asked the responding deputy if the defendant had been the other vehicle's driver. Defense counsel objected on grounds of lack of personal knowledge and hearsay. The trial court overruled the objections. The responding deputy then testified that the defendant had been the other vehicle's driver. According to the responding deputy, when he approached the defendant, the defendant was leaning up against the other vehicle's driver's side.

The state asked the responding deputy how he knew the defendant had been the other vehicle's driver. The responding deputy testified the victim had told him that the defendant had been the other vehicle's driver. Defense counsel again objected on hearsay grounds.

At sidebar, the state argued the victim's statement to the responding deputy was a statement of identification and not hearsay under section 90.801(2)(c), Florida Statutes (2019) ("A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [o]ne of identification of a person made after perceiving the person.").

The trial court overruled the defendant's hearsay objection, finding the victim's statement to the responding deputy was a statement of identification and therefore was admissible under section 90.801(2)(c).

Despite the trial court having ruled, defense counsel nevertheless continued arguing, and the following exchange occurred:

DEFENSE: Your Honor, ... while [the victim] ... testified and [was] subject to cross-examination, I did not cross-examine her on [the statement] because she did not identify [the defendant] as the person who was driving the vehicle.

....

[T]he statute clearly says cross-examined about the statement. She never made the statement on direct examination for me ... to cross-examine her on it.

....

STATE: Your Honor, we called [the victim], we spoke about her identification. She went over her testimony. She was subject to cross-examination.

COURT: Didn't [the victim] identify the [d]efendant on the stand?

STATE: [The victim] identified the [d]efendant as the only person next to the [other] car when she got out of her car. She didn't identify him specifically as the driver [of the other car].

COURT: Okay. Well, to the extent that [the victim] identified the [d]efendant as the person standing next to the driver's side of the [other] car, that's fine. That falls within the language of [section 90.]801(2)(c).

....

Overruled.

344 So.3d 470

After the sidebar, the state again asked the responding deputy how he knew the defendant had been the other vehicle's driver. The responding deputy testified: "The [victim] advised that [the defendant] was the driver of [the other vehicle]."

The state went on to present further evidence to meet its burden of proving the remaining elements of DUI causing or contributing to injury to person or property. Included within this evidence was the patrol vehicle video recording of the defendant while being transported to jail. During the transport, the defendant made various spontaneous statements incriminating himself as the other vehicle's driver:

• "What did I do wrong? Because somebody rear-ended me?"

• "I want my keys and driver's license."

• "Are you going to tow the vehicle? I live right there."

• "Why can't I park it? ... You won't let me move it?"

• "You can't answer if my money and my car [indiscernible]?"

After the state rested, defense counsel moved for a judgment of acquittal. Defense counsel argued the state had failed to show that the defendant had been the other vehicle's driver. Defense counsel recounted the victim testified that she had seen two people standing by the other vehicle, and the state "just relied on the pontification by [the victim]" that the defendant had been the other vehicle's driver. Defense counsel added that the state had not presented any witness or circumstantial evidence to show the defendant had been the other vehicle's driver.

The state responded to the defendant's JOA motion as follows:

As far as driving goes, we have the victim who got on the stand and testified the accident occurred. Seconds after she got out of her vehicle, just seconds after, the [d]efendant was standing within arm[’s] length from

...