Sims v. State, No. 5D02-2401

• Decision Date: 05 March 2004
• Docket Number: No. 5D02-2401, No. 5D02-2448.
• Citation: 869 So.2d 45
• Parties: Gene Robert SIMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

869 So.2d 45

Gene Robert SIMS, Appellant, v. STATE of Florida, Appellee.

Nos. 5D02-2401, 5D02-2448.

District Court of Appeal of Florida, Fifth District.

March 5, 2004.

Rehearing Denied April 7, 2004.

Thomas E. Cushman, St. Augustine, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

MONACO, J.

This appeal brought by Gene Robert Sims raises an issue concerning the assessment of victim injury points for the crime of leaving the scene of an accident involving death. We conclude that victim injury points were properly assessed and affirm.

Mr. Sims was driving his wife's truck when he struck and killed Bernell Williams (the "Victim"). For reasons not specified Mr. Sims left the scene of the accident without ever stopping the truck. He was charged with violating section 316.027(1)(b), Florida Statutes (2001), and found guilty as charged in the information.

Sheila Asbury, one of the passengers in the Sims vehicle, testified that the occupants of the truck were looking for drugs, having already smoked crack cocaine and drunk beer prior to the accident. She stated that before Mr. Sims hit the Victim, she saw the Victim laying on top of a bicycle in the middle of the road. She described the sounds made by the accident as a "loud dragging like metal ... it was dragging bad." Because the Victim was laying in the middle of the road, Mr. Sims had only two choices. He could either hit the Victim or hit the guardrail on the side of the road. In any event, the trial court eventually determined that the accident was virtually unavoidable.

The medical examiner testified at trial that at the time of his death the Victim had a blood alcohol level of .196, and that he had been struck while he was lying in the street. He theorized that the Victim had fallen off of his bicycle and was lying in the middle of the road when he was struck. The medical examiner further testified that the victim's death was "instantaneous" upon impact, or certainly "within a second or two." The autopsy revealed that the Victim had lacerations of the head, neck, and face; bruises and abrasions on the lower chest; skin rubbed off from large areas of his arms and from his lower back to the top of his shoulders; a torn scalp; crushing injuries to his entire chest and to the right side of his abdomen; a broken right pelvis; every rib fractured on both sides of his torso; a crushed and torn liver; a crushed and torn heart; extensive lung injuries; a broken back and neck; and a crushed skull with extensive injuries to the brain. The doctor concluded that the Victim's injuries were consistent with his being hit, dragged, and run over.

A law enforcement homicide investigator who responded to the scene indicated that he saw the Victim on the side of the road, where he had been placed by two passers-by. When asked what he was able to determine from an examination of the accident scene, he said "Basically all I could say for sure is that the gentleman had been hit by some type of vehicle and drug down the road for a bit and was dead."

Prior to sentencing a pre-sentence investigation was prepared which reflected a minimum sentence of 8 months incarceration. At the sentencing hearing, however, the State argued in favor of adding 120 victim injury points to Mr. Sims' Criminal Punishment Code scoresheet. The trial judge agreed, and but for a downward departure, the result was a lowest permissible incarcerative sentence of eight years. Because the trial judge found, among other things, that the accident was "nearly unavoidable," he downwardly departed, and sentenced Mr. Sims to five years in the custody of the Department of Corrections, followed by five years of probation.

Mr. Sims contends that the trial court improperly assessed "victim injury points" to his scoresheet, thus resulting in a minimum sentence longer than called for under the guidelines. He argues that he was charged only with the offense of leaving the scene of a crash involving a death. He was not charged with a crime specifically concerning the injury inflicted on the Victim because the Victim's actions made the crash nearly unavoidable. Essentially, Mr. Sims contends that because the offense he committed occurred after the victim was already dead, the injuries and death were not the "direct result" of leaving the scene of the accident.

We begin our analysis by noting that the imposition of victim injury points is within the sound discretion of the trial court. See Jones v. State, 826 So.2d 1100 (Fla. 5th DCA 2002)

; Ely v. State, 719 So.2d 11 (Fla. 2d DCA 1998). A trial court abuses its discretion "only where no reasonable man would take the view adopted by the trial court." See Nolte v. State, 726 So.2d 307, 309 (Fla. 2d DCA 1998). We believe that the imposition of victim injury points in this case was within the trial court's discretion, and that no abuse has been shown.

Section 921.0021(7)(a) defines victim injury as:

The physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.

The Florida Rules of Criminal Procedure also give guidance on how to assess victim injury points. Rule 3.701(d)(7), Florida Rules of Criminal Procedure, provides that:

Victim injury shall be scored for each victim physically injured during a criminal episode or transaction, and for each count resulting in such injury whether there are one or more victims.

The committee's comments following the rule reflect the intention of the committee that points for victim injury be added for each victim injured during a criminal transaction or episode. The injury need not be an element of the crime for which the defendant is convicted, but is limited to physical injury. When the rule was adopted, the Supreme Court reiterated that:

The commission recommends that victim injury be scored whether or not it is an element of the crime, if, in fact, injury occurred during the offense which led to the conviction. We see merit in scoring physical injury if a defendant physically injures the victim of the offense during the course of a criminal episode, regardless of whether the injury is an element of the crime, but do not believe it wise to extend the definition of injury to include psychic injury.

Florida Rules of Criminal Procedure re Sentencing Guidelines (rules 3.701 and 3.988), 509 So.2d 1088, 1089 (Fla.1987). Thus, it is clear that the current rule allows for the assessment of victim injury points even if the injury is not an element of the crime, as long as there is physical trauma.

The Fourth District Court of Appeal has considered a factually similar case. In May v. State, 747 So.2d 459 (Fla. 4th DCA 1999), the defendant appealed his sentence arguing that the trial court erred when it assessed victim injury points for the death of the victim. The defendant struck and hit the victim. While trying to dislodge the body, the defendant swerved from side to side and dragged the body approximately 500 feet, throwing the body into the middle of the street where it was struck by another car. The defendant pled no contest to the charges of leaving the scene of an accident involving death in violation of section 316.027(1)(b). At sentencing the state introduced the deposition of the medical examiner to establish a nexus between the defendant's actions and the victim's death. The medical examiner testified that as a result of being dragged under the defendant's vehicle, the victim sustained multiple blunt trauma injuries and large brush abrasions which eroded skin and muscle, exposing the victim's internal organs. The medical examiner opined that the combination of all of the injuries caused the victim's death, but could not say for sure whether the victim's death was a direct result of the first collision, being dragged under defendant's vehicle in the course of defendant's leaving the scene, or the second impact. The testimony was that both the impact and the dragging caused the death. The Fourth District Court determined that the trial court had sufficient evidence to support its finding that the commission of the crime in issue ... resulted in "death suffered by a person as a direct result of the primary offense," and affirmed the lower court, stating that section 921.0011(7)(a) requires that the crime be a cause of death, not necessarily the cause of death.

In the present case there is substantial competent evidence that the Victim was dragged after being hit by Mr. Sims' vehicle. Using the reasoning set forth in May, we conclude that there was a sufficient causal connection between the leaving of the accident scene and the death to justify the imposition of victim injury points, and that the trial judge did not abuse his discretion in doing so.

Mr. Sims has brought to our attention two cases from the Second District Court of Appeal that he believes stand for the proposition that victim injury points should not be assessed for the crime of which he was convicted. An examination of these cases, Rodriguez v. State, 684 So.2d 864 (Fla. 2d DCA 1996), and Geary v. State, 675 So.2d 625 (Fla. 2d DCA), review denied, 680 So.2d 422 (Fla.1996), however, reflects that our sister court concluded that in those cases there was no causal connection between the crimes and the victim injury. In the present case, however, as we have indicated, there is a nexus between the death of the Victim and the crime. Cf., Schuette v. State, 822 So.2d 1275 (Fla.2002)

; Triplett v. State, 709 So.2d 107 (Fla. 5th DCA 1998).

Mr Sims also relies on two cases, Motyka v. State, 457 So.2d 1114 (Fla. 1st DCA 1984), and Benedict v. State, 475 So.2d 1000 (Fla. 5th DCA 1985), for the proposition that Rule 3.701(d)(7) only permits victim injury points to be scored if victim injury is an...