Nshaka v. State
| Decision Date | 21 March 2012 |
| Docket Number | No. 4D09-2109,No. 4D09-2110,No. 4D09-2111,4D09-2109,4D09-2110,4D09-2111 |
| Parties | PHARAOH NSHAKA, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
Appellant, Pharaoh Nshaka, appeals the trial court's final order imposing judgment of conviction of burglary and the trial court's final order imposing sentence as to three separate cases which were consolidated on appeal. Nshaka specifically appeals the trial court's denial of his motion for judgment of acquittal, the trial court's denial of his motion for mistrial, the trial court's instruction to the jury regarding inferences that may be drawn from proof of possession, the trial court's denial of his motion in limine, and the trial court's denial of his motion to suppress physical evidence. We agree with Nshaka's assertions in part and disagree in part. While we affirm the trial court's orders denying the motions for judgment of acquittal, mistrial, and suppression, we reverse on the issues regarding the jury instruction and the denial of Nshaka's motion in limine. As a result, we remand this case for retrial.
A vehicle burglary occurred outside a daycare facility. The vehicle, a black Ford Expedition, was left unlocked by the owner. The owner left her handbag on the seat of the vehicle, which contained her license, bank card, and cash. Around the time of the burglary, an eyewitness spotted Nshaka's vehicle, a white Ford Taurus, parked at the daycare facility and documented the make, model, and license plate number of the vehicle. The eyewitness also noticed that the person in the Taurus was wearing a baseball cap and had masculine features. The vehicle was traced to 5900 Hayes Street - an address which was linked to Nshaka.
Officers later attached a tracking device to Nshaka's vehicle and traced him to a different address on 59th Avenue. Officers then placed Nshaka under surveillance for three days, during which they witnessed him coming and going from that address. Officers initiated a traffic stop to attempt to obtain consent from Nshaka to search the residence. When officers stopped Nshaka and began to speak with him, he advised them that he lived at 5900 Hayes, as his driver's license showed, but that he had keys to the 59th Avenue home and they could perform a search of that location.
When officers arrived at the address, they knocked, announced themselves, and performed a cursory search when nobody responded. After about two to three minutes of a cursory search, the officers terminated the search, determining no one was there. During the search, officers noticed items in plain view, including several purses stacked up and a bill with Nshaka's name on it. The lead detective then obtained a search warrant for the address. During their search, officers found boxes filled with paperwork in a closet. The paperwork included bills dated from the previous five months, all of which were addressed to Nshaka at the 59th Avenue address. In a child's bedroom during the search, officers discovered another box that contained documents and other items which were cataloged in a very specific and organized manner. The box also contained the credit card and driver's license of the victim from the incident which is the subject of this appeal.
Before evidence was introduced at trial, Nshaka made a motion in limine to exclude evidence of other burglaries, including: a pair of latex gloves found in the house during the search; identification; mentions of other victims; or credit cards found. The trial court denied the motion in limine and photographs of the gloves were admitted into evidence. At trial, one of the officers testified that he was searching for evidence in some vehicle burglaries and the defense moved for a mistrial. The court denied the motion. Additionally, later in the trial during a sidebar, a juror told the judge that she overheard an officer on his phone mentioning burglaries and how they were not supposed to testify as to other burglaries. The juror did not mention the conversation she overheard to any other members of the jury. At this point, Nshaka, again, moved for a mistrial. The court denied the motion and excused the juror, appointing an alternate in her place. At the close of the State's case, Nshaka moved for judgment of acquittal, explaining that the State was unable to prove that he committed burglary. The court determined there was sufficient evidence to submit the matter to a jury and denied the motion for judgment of acquittal.
During the charge conference, Nshaka objected to the court's statement that there was proof of possession by an accused of recently stolen property by means of a burglary. The trial court overruled the objection without prejudice. The court instructed the jury as to the inferences given by proof of possession of recently stolen property. The defense objected to the jury instruction and the trial court overruled the objection. The jury returned a verdict of guilty as to both counts. Nshaka entered an open plea as to the remaining two cases before the court. Those cases involved: burglary of a conveyance and grand theft; and eight counts of criminal use of personal identification information and one count of unauthorized possession of identification card or driver's license. Nshaka filed a motion to suppress physical evidence. The court denied the motion, but reserved Nshaka's right to appeal the ruling.
A sentencing hearing was held and Nshaka was found to be a habitual offender and was sentenced three times - one sentence for each of the three consolidated cases on appeal. Nshaka was sentenced to ten years with credit for 975 days time served for counts I and II of the case involving the burglary at the daycare. For a nine count case involving misuse of another's personal identity, Nshaka was found to be a habitual offender and was sentenced to five years with credit for 975 days time served, to be served concurrently with the sentences of the other two cases. In the third case, the trial court found Nshaka to be a habitual offender and sentenced him to ten years, to be served consecutively with the ten year sentence from the trial. This consolidated appeal followed.
Taking each issue in turn, we begin by analyzing those points on which we agree with Nshaka. Nshaka argues that the trial court erred when it instructed the jury that "proof of possession by an accused of property recently stolen by means of a burglary, unless satisfactorily explained, may justify a conviction of burglary." An appellate court reviews jury instructions using the abuse of discretion standard of review. Zama v. State, 54 So. 3d 1075, 1077 (Fla. 4th DCA 2011).
Nshaka argues that the jury instruction was harmful because it identified him as a participant in the burglary. The State argues that sufficient evidence was presented to show that Nshaka had control over the premises, allowing an inference to be drawn. The Fifth District held in King v. State, 431 So. 2d 272 (Fla. 5th DCA 1983), that the same instruction as the one given in this case was improper because the "appellant's possession was not 'personal and exclusive.'" Id. at 273. Similar to King, the evidence here also did not show "that the appellant ever really possessed the goods to the extent that he exercised anydominion and control over them, let alone exclusive dominion and control." Id. at 273.
This court relied on King in the past to show that a jury instruction regarding inference of burglary due to possession is proper only if possession is exclusive. Ward v. State, 40 So. 3d 854, 856 (Fla. 4th DCA 2010). Here, no proof was presented that Nshaka had personal and exclusive dominion and control over the stolen property that was found during the officers' search of the premises because a three month time period lapsed between the date of the burglary and the search of the home. We hold that a three month lapse in time is not recent, so as to fit into the trial court's instruction regarding "recently stolen" items. As a result, Nshaka was free to argue that the items were not exclusively his, making an instruction of inference to the jury improper. Therefore, the trial court erred in giving this jury instruction and we reverse as to this point on appeal.
Next, Nshaka argues that the trial court erred in allowing latex gloves to be entered into evidence when the gloves were found eighty days after the date of the burglary, removing the seizure too far from the incident. An appellate court reviews a trial court's ruling on a motion in limine for an abuse of discretion. Mackey v. State, 55 So. 3d 606, 609 (Fla. 4th DCA 2011). The trial court's discretion regarding admissibility of evidence is broad and its ruling will be disturbed only upon an abuse of discretion. Huhn v. State, 511 So. 2d 583, 588 (Fla. 4th DCA 1987).
Relevant evidence is defined as that which tends "to prove or disprove a material fact." § 90.401, Fla. Stat. (2011). In order to be admissible, evidence must be relevant. § 90.402, Fla. Stat. (2011). Relevant evidence is generally always admissible, except where "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403, Fla. Stat. (2011). In a Second District Court of Appeal murder case, Green v. State, 27 So. 3d 731 (Fla. 2d DCA 2010), the court found that evidence which was not connected to the charged offenses, nor the defendant, was too prejudicial to be admitted into evidence. Id. at 737-38. Failure to connect the evidence to the charges made the evidence irrelevant because it "did not tend to prove or disprove any material fact in controversy." Id. at 738.
Here, while the State intended to introduce the gloves into evidence to show why there were no fingerprints on the victim's vehicle, the State did not introduce evidence to show that those gloves were connected to that...
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