Lu Jing v. State
| Decision Date | 28 April 2021 |
| Docket Number | No. 4D21-147,4D21-147 |
| Citation | 316 So.3d 724 |
| Parties | LU JING, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant.
David Aronberg, State Attorney, and Joseph R. Kadis, Assistant State Attorney, West Palm Beach, for appellee.
Lu Jing appeals her conviction for resisting an officer without violence. We reverse the conviction because a Florida statute precluded law enforcement from arresting Appellant for a misdemeanor that did not occur in the presence of a law enforcement officer. During an investigative stop, law enforcement officers effected an arrest by handcuffing Appellant for transport to the station house for further questioning. This conduct exceeded the lawful bounds of the investigative stop, so the State failed to establish a necessary element of resisting an officer without violence.
The State charged Appellant Lu Jing by information with two misdemeanor offenses: (I) trespassing after receiving a warning and (II) resisting an officer without violence. Count I alleged that Appellant trespassed upon Mar-a-Lago, a private club located in Palm Beach, Florida.
Count II of the information provided:
[Appellant] on or about December 18, 2019, in the County of Palm Beach and State of Florida, did resist, obstruct or oppose TAYLOR MOLINARO a law enforcement officer of the PALM BEACH POLICE DEPARTMENT in the execution of a legal process or in the lawful execution of a legal duty, without offering or doing violence to the person of such officer, contrary to Florida Statute 843.02 (1 DEG MISD)
Following a jury trial, Appellant was acquitted of trespassing but found guilty of resisting an officer without violence.
The issue we address in this appeal is the sufficiency of the evidence to support the conviction for resisting an officer without violence.
On a Wednesday afternoon in December 2019, at around 12:30 p.m., a security officer for the Mar-a-Lago Club observed Appellant taking pictures while walking on the club's main driveway. Mar-a-Lago is considered a national historical landmark and is also a private club open only to members and pre-arranged guests.
The security officer approached Appellant and told her to leave the property because she was in a "no trespassing" area. It became apparent to the security officer that Appellant—who is of Asian descent—did not speak English. Therefore, the security officer used hand gestures and pointed towards the road to communicate to Appellant that she needed to leave. In response, Appellant walked north onto Ocean Avenue.
A short time later, the security guard saw Appellant on the Mar-a-Lago premises again, this time on the exit driveway. He tried to tell Appellant that she was on private property and gestured for her to leave. Appellant then left the property and did not return.
Two Palm Beach police officers—Sergeant Michael Dawson and Officer Taylor Molinaro—responded to Mar-a-Lago after the trespassing incident was reported to law enforcement. Neither officer saw Appellant on the Mar-a-Lago property nor did they see her interact with the security officer. The Mar-a-Lago security director told Officer Molinaro what had happened and showed the officer surveillance video as well as photographs.
At about 1:00 p.m. that same Wednesday, Sergeant Dawson saw Appellant standing on the corner of Worth Avenue and South County Road, about two miles north of Mar-a-Lago. Sergeant Dawson tried to talk with Appellant, but she appeared unable to speak English. At the time, Sergeant Dawson was the only officer at the scene. He did not request an interpreter. Nor did he attempt to use his cellphone to translate because he was not technically proficient with the translation application and did not know the language Appellant spoke.
Instead, Sergeant Dawson used hand gestures to convey that he wanted to talk. He could not say whether Appellant understood why he was talking to her, but she was cooperative and did not seem scared. Appellant handed him her passport and her cell phone. Sergeant Dawson gave her cellphone back.
Within five minutes, Officer Molinaro arrived wearing a police uniform with a visible badge. Recognizing that Appellant did not speak English, Officer Molinaro used hand motions in an attempt to lead her towards his patrol car "[b]ecause at that point [they we]re arresting her." Officer Molinaro affirmed at trial that "[i]t is a duty of [his] as an officer to arrest individuals ... [w]ho have committed crimes." Officer Molinaro also testified he was investigating the trespassing incident and wanted to talk with Appellant.
Because of the language barrier, Officer Molinaro could not say with certainty that Appellant understood why he was motioning her to the police vehicle. Appellant did not move. Eventually, Officer Molinaro took out his handcuffs and began walking towards her. Appellant's response was to "back[ ] up [and] put her hands across her chest." Officer Molinaro described these events for the jury:
... I was using the hand motions and trying to talk to her and motion her to my car. [A]t that point she was just standing there. It didn't seem like she, she, um, understood what I was saying, so I kept on motioning her. And then we came to the point where we had to take her from that scene and, um, bring her to a spot where we can communicate with her, and that was by taking out my handcuffs like this.
(Emphasis supplied). At that point in the encounter, Defendant crossed her arms in front of her chest, balled her hands into fists, took a few steps backward and yelled "no, no, no."
Officer Molinaro gave Appellant "a few seconds to put her hands behind her back." He then took a step forward. ... When Appellant continued not to comply with his attempts to get her to "cooperate in his investigation," Officer Molinaro successfully placed her under arrest, even though she continued to resist his efforts "[b]y not freeing her arms," "pushing backwards, and holding, clenching her hands tight against her body." Officer Molinaro did this by using a "soft-hand technique" to grab Defendant's balled-up fist and place it behind her back to put the handcuffs on her.
At the close of the State's case, defense counsel moved for judgment of acquittal on both charges, which the county court denied.1
Through a Mandarin translator, Appellant testified on her own behalf.
On the Wednesday in question, she went to Mar-a-Lago as part of a private tour led by a Chinese tour guide she hired online for $200 per day. The tour began that day in Miami at 8:30 a.m. Appellant conversed with the tour guide in Mandarin. Other than a few simple words such as "no," "bye," and "thank you," Appellant could not speak English.
There was no public parking area at the Mar-a-Lago Club, so the tour guide dropped Appellant off in front of the property. The tour guide did not tell her that Mar-a-Lago was private property, other than to say it was President Donald Trump's estate. The gate to the club was open and Appellant did not see any signs indicating she could not take pictures of the premises. She walked by the gate area and took pictures from her cellphone.
After Appellant had taken pictures, a security officer waved at her and spoke to her in English. During the interaction, the security officer used gestures that made Appellant feel "that he didn't want [her] to be here, so [she] left."
Appellant walked along a road that she believed she was permitted to use. She resumed taking pictures, but a person approached her and tried to tell her something in English. The person gestured towards Appellant as if he wanted her to enter a vehicle, which scared her. Appellant said, "No English, sorry," before walking away and calling the tour guide.
The tour guide picked Appellant up in his car and they drove around the area, eventually stopping at Worth Avenue. There, Appellant got out of the car while the tour guide looked for a parking spot. As Appellant walked towards a clothing store, a police officer stopped his vehicle nearby. The officer approached and spoke to her in English, but she did not understand what he was saying.
After gesturing for Appellant to stand alongside the street, the officer showed her a picture on his cellphone of Appellant leaning against a wall. Appellant could not communicate with the officer, but she "figured that he didn't want [her] to take ... picture[s]." Appellant took out her phone and tried to tell the officer that she did not do anything other than take pictures and that she would be willing to delete the pictures. Appellant then deleted a picture, but the officer physically took her phone away. Appellant also handed the officer her passport.
Eventually, a second police officer arrived at the scene. After speaking with the first officer, the second officer took out handcuffs and tried to grab Appellant's hands. Appellant became "very scared" since she did not know what she had done wrong. Appellant took a step back, crossed her arms, and tried to say that she had only taken pictures. Appellant described her reaction as "normal" since she "didn't know why [the officer] wanted to arrest" her.
Defense counsel renewed the motion for judgment of acquittal. The trial court asked the State "about the issue of the trespass not occurring in the officer's presence." The prosecutor responded that "even if [the court] were to find that because the trespass didn't occur in the presence of the officer, that it was a warrantless arrest, the only thing that would arise from that is that everything after the arrest would be lost, we wouldn't talk about it." Plainly, the prosecutor understood the issue as involving the suppression of evidence under the Fourth Amendment, rather than one going to an essential element of the resisting charge.
The jury acquitted Appellant of the...
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