County Case No.: MM00-10804A-XX
Appeal No.: DD-41
CHARLES LANDS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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OPINION OF THE COURT
This is an appeal from the county court of Polk County, Judge Ellen Masters presiding. Appellant Charles Lands argues that the evidence was insufficient to support a conviction. This court has jurisdiction. Fla. R. App. P. 9.030. The ruling of the county court is REVERSED.
I.
On November 24, 2000, Deputy Steve Costine was investigating a traffic crash at Lakeview Street. Upon his arrival, the deputy learned from bystanders that the driver of the car fled on foot. In response, Deputy Costine called for a backup K-9 unit to respond to the scene. Deputy Deanna Warren of the K-9 unit responded to the call. The only description of the suspect at this point was that it was a white or Hispanic male approximately 5'10" to 6' tall running eastbound on Lakeview Street. (T22) Approximately a quarter mile from the crash scene, while enroute, Warren was flagged down by bystander that told her that the subject they were looking for had just run east of her. (T35-36) At that point, Deputy Warren started traveling in the direction in which the bystander pointed. While Warren drove around the area, she saw the appellant, a white male, walking just east of her. (T38) Warren testified that the man was walking, however, when he turned around and saw the patrol car, he fled on foot Aas fast as he could go through the ditch and then back through the yards.@ (T 39) Deputy Warren attempted to follow him, however, when the appellant saw her he turned around and darted in the opposite direction. (T 39) At this point, Warren now believed that the appellant was attempting to evade her. (T 40) In response she activated her emergency lights. (T40) While turning around to follow the appellant, another bystander pointed in the direction that the appellant ran. (T 41) When she reached the area where the bystander pointed, she exited her vehicle to start a K-9 track because the appellant ran from sight. (T 41) Warren continued to chase appellant on foot running between houses and along fences. (T 43) Warren observed the appellant run into a carport of a residence. Once the K-9 unit saw the appellant he barked and continued to bark once the appellant hid in the carport. (T 47) The deputy hollered for the appellant to stop before he entered the carport, however, the appellant continued to run. (T 43) The deputy hollered again for him to stop as he entered the carport, but again, the appellant failed to stop. (T 43) Each time she hollered, she said something similar to APolk County Sheriff=s Office K-9 unit. Stop or I=ll release the dog.@ (T 44) As she reached the carport, she could see him trying to duck behind a vehicle at which point she hollered for the third time, this time with a K-9 warning and advised him that if he did not come out she would release the dog. (T 43) At that point, the appellant stood up from behind the car and put his hands in the air and walked out of the carport. (T 46) The appellant was breathing heavy. ( T 50) Warren testified that from the time she first saw appellant until the time he exited the carport about five minutes had elapsed. (T 49) Some time after the appellant left the carport, Warren found out through radio communications that Aif the suspect was not bleeding profusely from the face then he probably did not have any involvement in the accident.@(T 66)
The appellant was detained by another officer while Warren went back to the accident scene to start a new K-9 track. Upon her return she read the appellant his rights and asked why he ran. First he told her that he did not run, that he was just walking to his girlfriends house.(T 50) After several minutes he changed his story and said that he ran from her because he wanted to hide. (T 51) Finally, the appellant said that he had been running because he had been in a stolen vehicle and was trying to hide from her. (T 51) The appellant told the deputy that he was sorry for running. (T 51) It was determined that the appellant was not the person driving the car. The appellant was charged with one count of resisting an officer without violence in violation of Section 843.02 (2000).
The trial court denied the appellant=s motion for judgment of acquittal. The appellant filed a timely notice of appeal. On appeal, the appellant argues that the evidence at trial was insufficient to support a conviction because the sole basis for the conviction was the appellant=s flight after he saw a police officer.
II.
A judgment of conviction comes to the appellate court with a presumption of correctness. Hitchcock v. State, 413 So.2d 741 (Fla. 1982); State v. Clements, 668 So.2d 980, 981 (Fla. 1996) An appellant=s claim of insufficient evidence will not prevail if substantial competent evidence exists to support the verdict. Hitchcock v. State. On review, the appellate court must view the conflicting evidence in a light most favorable to the state. Woods v. State, 24 Fla. L. Weekly S183, S184 (Fla. April 15, 1999). If substantial competent evidence exists to support the jury=s verdict the case will not be overturned on appeal. Id.
In order to sustain a conviction under section 843.02, Florida Statutes, the state must prove that (1) the officer was engaged in the lawful execution of a legal duty, and (2) the action by the defendant constituted obstruction or resistance of the lawful duty. Several cases have held that flight, standing alone, will not support a charge of resisting a police officer in the lawful execution of a legal duty. See Nelson v. State, 543 So.2d 1308 (Fla. 2nd DCA 1989); F.E.C. v. State, 559 So.2d 413 (Fla. 2nd DCA 1990). In F.E.C, the Second District noted that flight may be grounds for an obstruction charge if the individual flees knowing of the officer's intent to detain him, and if the officer is justified in making the stop. The court reasoned that the flight then frustrates the officer's right to make the stop and any inquiries. However, the court held that Aflight alone does not constitute obstructing an officer, nor does it give rise to a well-founded suspicion of criminal activity.@ The court went on to state A[l]ikewise, flight accompanied by knowledge of the officers= intent to detain does not constitute obstructing absent a well-founded suspicion in the mind of the officer. Id at 414. Similarly, in D.M. v. State, 681 So.2d 797 (Fla. 2d DCA 1996), the Second District held that evidence was insufficient to support finding that juvenile committed delinquent act of obstructing officer without violence, since there was no evidence that officers suspected that juvenile was engaged in criminal activity. In that case appellant was a passenger in a vehicle that failed to stop at a red light and almost struck a police vehicle. The officers initiated a traffic stop but the vehicle did not stop. The occupants fled from the vehicle while it was still moving, at which time the car went into a ditch. The officers began a foot pursuit of the occupants, apprehending the driver and a passenger. The trial court denied D.M.=s motion to dismiss and the Second District reversed and directed the trial court to enter an order granting D.M.=s motion to dismiss. The court reasoned that in order to prove that a defendant is guilty of unlawfully obstructing an officer without violence, the state must establish that the defendant fled with knowledge of the officer=s intent to detain him and the officer was justified in making the detention due to his founded suspicion that the defendant was engaged in criminal activity.
Similarly, in this case, there was no evidence that Deputy Warren suspected the appellant of criminal activity. Deputy Warren testified that when she saw the appellant walking down the road she intended to stop him and question him to see if he was involved in the accident. Deputy Warren testified that she was initiating a consensual encounter. (T 64) Thus, the deputy did not have a founded suspicion that the appellant was engaged in criminal activity. F.E.C. v. State, 559 So.2d 413 (Fla. 2nd DCA 1990); D.M. v. State, 681 So.2d 797 (Fla. 2d DCA 1996).
Accordingly, it is ORDERED that the ruling of the county court is REVERSED.
ORDERED February 2002.
Charles B. Curry, Chief Judge