Moore v. State, 5D01-1232.

• Decision Date: 14 December 2001
• Docket Number: No. 5D01-1232.,5D01-1232.
• Citation: 800 So.2d 747
• Parties: Norman MOORE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

800 So.2d 747

Norman MOORE, Appellant, v. STATE of Florida, Appellee.

No. 5D01-1232.

District Court of Appeal of Florida, Fifth District.

December 14, 2001.

James B. Gibson, Public Defender, and Allison Toller, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

Norman Moore appeals the order denying his motion for new trial which he sought after the jury found him guilty of sexual battery on a physically helpless person. He argues that the trial court used an incorrect standard by which to test his motion for new trial. We agree and reverse.

Moore and the victim were guests at a swimming party. The victim admitted that she consumed a few drinks and voluntarily took an illegal drug which apparently made her lose consciousness. The victim was placed in a bedroom and, as she lay in repose, a mutual friend of the victim and Moore checked on her from time to time. Unfortunately for the victim, the mutual friend left to run an errand and Moore was asked to keep an eye on the victim until she returned. When the victim was aroused from her stupor, she angrily exclaimed that Moore had raped her.

During the trial, no witnesses were called who saw Moore in the room with the victim at the time of the alleged attack. Thus the trial turned into a classic test of credibility, with Moore testifying that he engaged in consensual sexual intercourse with the victim, and the victim essentially testifying that she had suffered a violent, nonconsensual attack. The nurse who apparently examined the victim testified that there was only one small tear to the victim's vagina, but no evidence of trauma. The jury, believing the testimony of the victim, found Moore guilty of sexual battery on a physically helpless person.

Prior to sentencing, Moore moved for a new trial. At the hearing thereon, defense counsel requested the trial court to "reweigh the evidence and ... act as an additional juror...." The trial court denied the motion, stating that "there was enough evidence to go to the jury on this case." In light of the motion for new trial which alleged that the verdict was contrary to the weight of the evidence, we find that the trial court applied the wrong legal standard in denying the motion.

The standard of review for a motion for new trial is abuse of discretion. See Stephens v. State, 787 So.2d 747 (Fla.),

cert. denied, ___ U.S. ___, 122 S.Ct. 556, ___ L.Ed.2d ___ (2001); State v. Spaziano, 692 So.2d 174 (Fla.1997); State v. Batterton, 784 So.2d 1259 (Fla. 5th DCA 2001); Chatmon v. State, 738 So.2d 970 (Fla. 2d DCA 1999). In order to demonstrate abuse of discretion, "the nonprevailing party must establish that no reasonable person would take the view taken by the trial court." Stephens, 787 So.2d at 754 (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). Thus a trial court is generally accorded broad discretion in deciding whether to grant a motion for a new trial. Batterton; Chatmon.

However, Moore's argument on appeal is that the trial court used an incorrect legal standard in ruling on his motion for new trial. Therefore, we must determine whether the court's standard was erroneous as a matter of law. See Files v. State, 613 So.2d 1301, 1304 (Fla.1992)

.¹

Turning now to the merits of this appeal, Moore filed his motion pursuant to rule 3.600 which provides several grounds that may be alleged in a motion for new trial. The ground alleged by Moore is that the jury verdict is against the weight of the evidence. See State v. Daniels, 699 So.2d 837 (Fla. 4th DCA 1997)

. Specifically, Moore requested the trial court "to reweigh the evidence" in determining his motion for new trial. Instead of engaging in a review of the weight of the evidence, however, the trial court used a sufficiency of the evidence standard to test Moore's motion. There is an important distinction between the two standards. In Tibbs v. State, 397 So.2d 1120 (Fla.1981),

affirmed,

457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), the court explained the distinction as follows:

The weight and the sufficiency of evidence are, in theory, two distinct concepts most often relevant at the trial court level. Sufficiency is a test of adequacy. Sufficient evidence is "such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded." Black's Law Dictionary 1285 (5th ed.1979). In the criminal law, a finding that the evidence is legally insufficient means that the prosecution has failed to prove the defendant's guilt beyond a reasonable doubt. Burks v. United States, 437 U.S. 1, 16 n. 10, 98 S.Ct. 2141, 2150 n. 10, 57 L.Ed.2d 1 (1978). Weight, at least in theory, is a somewhat more subjective concept. The "weight of the evidence" is the "balance or preponderance of evidence." Black's Law Dictionary 1429 (5th ed.1979). It is a determination of the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other. See In re Estate of Brackett, 109 So.2d 375 (Fla. 2d DCA 1959)

.

Id. at 1123 (footnote omitted).

In deciding a motion for new trial which asserts that the verdict is contrary to the weight of the evidence "the trial court acts as a safety valve by granting a new trial where `the evidence is technically sufficient to prove the criminal charge but the weight of the evidence does not appear to support the jury verdict.'" State v. Hart, 632 So.2d 134, 135 (Fla. 4th DCA 1994) (quoting Robinson v. State, 462 So.2d 471, 477 (Fla. 1st DCA 1984), rev. denied, 471 So.2d 44 (Fla.1985)). The Florida Supreme Court made clear in Tibbs that rule 3.600(a)(2) "enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror." 397 So.2d at 1123 n. 9 (citation omitted). Since this pronouncement in Tibbs, appellate courts have held this to be the appropriate function of the trial court in deciding a motion for new trial which alleges that the verdict is contrary to the weight of the evidence. See Hamid v. State, 782 So.2d 902 (Fla. 3d DCA 2001)

; State v. Hart, 632 So.2d 134 (Fla. 4th DCA 1994); Uprevert v. State, 507 So.2d 162 (Fla. 3d DCA 1987); Gonzalez v. State, 449 So.2d 882 (Fla. 3d DCA),

rev. denied, 458 So.2d 274 (Fla.1984); see also State v. May, 703 So.2d 1097 (Fla. 2d DCA 1997); Sanford v. State, 687 So.2d 315 (Fla. 3d DCA 1997); Thomas v. State, 574 So.2d 160 (Fla. 4th DCA 1990); Jordan v. State, 470 So.2d 801 (Fla. 4th DCA 1985).

In Hamid, the court had occasion to apply the Tibbs "seventh juror" analysis. The defendant appealed from his conviction and sentence, raising the propriety of the trial court's denial of his new trial motion. The appellate court reversed and remanded the case with instructions to the trial court to review the defendant's new trial motion under the appropriate standard. The court explained its holding as follows:

The trial court "mistakenly believed that if the evidence presented was sufficient to support the jury's verdict, it was not legally permitted to grant a new trial on the ground that the verdict was against the weight of the evidence." Uprevert v. State, 507 So.2d 162, 163 (Fla. 3d DCA 1987). Here, as in Uprevert, the record "suggests that the trial court may have entertained serious doubts about whether the verdict was against the weight of the evidence." Id. at n. 2. That being the case, Fla. R.Crim. P. 3.600(a)(2) "enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror." Tibbs v. State, 397 So.2d 1120, 1123 n. 9 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

782 So.2d at 902.

The defendant in Uprevert, like Moore, sought a new trial upon a claim that the verdict was against the weight of the evidence. The trial court's comments reflected that in ruling against the defendant, the trial court believed that as long as the evidence was sufficient to support the verdict, the trial court could not grant a new trial. The court held that the trial court's belief was mistaken because rule 3.600(a)(2) requires that a new trial be granted where the verdict is contrary to the weight of the evidence and the only way to make that determination is for the trial court to act as an additional juror, per Tibbs. The court stated:

Therefore, where, as here, the record leaves no doubt that the trial court failed to exercise its unique discretion to assess a weight of the evidence claim, reversal and remand for appropriate findings are required. See Adams v. State, 417 So.2d 826 (Fla. 1st DCA 1982)

(where order denying defendant's motion for new trial raising weight of evidence issue is worded in such a way as to indicate that trial court may have limited itself to sufficiency of evidence issue, reversal and remand are required).

Id. at 164.

In the instant case, the record clearly shows that the trial court used the wrong standard by which to test Moore's motion. We therefore reverse the order denying the motion for new trial and remand this case to the trial court to consider the weight of the evidence when ruling on the motion.

REVERSED and REMANDED.

PETERSON, J., concurs.

HARRIS, J., dissents, with opinion.

HARRIS, J., dissenting.

While I don't disagree with the majority's analysis of current law interpreting the trial court's responsibility when considering a motion for new trial alleging that the verdict is contrary to the weight of the evidence,² I believe the trial court met its obligation in this case. The court was made aware of its obligation to, in effect, "reweigh" the evidence to assure that its weight was sufficient to justify the guilty verdict. The court did not reject the standard; it rejected the argument that the evidence was of insufficient weight. In applying the appropriate standard, the...