Appeal No: BB-27

Case No: MM98-08955A-XX

KEVIN STONE

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

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This is an appeal from the county court of Polk County, Judge Steven Selph presiding. A jury convicted Appellant, Kevin Stone, of resisting an officer without violence. He seeks reversal raising three points on appeal. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is affirmed.

The resolution of this appeal turns of the following:

A. Does the failure to exclude testimony regarding the underlying charge constitute reversible error?

B. Does failure to instruct the jury that the state must show harm to prove a violation of section 843.02 constitute reversible error?

C. Does the trial judge’s comment on defense counsel’s closing argument constitute fundamental error?

Testimony at trial established that on September 26, 1998, Polk County Sheriff Deputies Escheu and Mann served a warrant on Appellant at his home. Deputy Escheu asked for Kevin Stone at the front door of the home. Appellant answered the door, gave a false name and told the deputy that Kevin Stone had moved. When Deputy Escheu asked for identification, Appellant closed the front door, and ran out the back door. The deputy confronted him in the back yard and directed him to stop. Instead, Appellant ran back through the house and out the garage. Deputy Escheu apprehended Appellant in the front yard. Appellant then identified himself as Kevin Stone.

At trial, defense counsel attempted to introduce testimony to establish that the underlying charge had been dropped. The trial judge sustained the state’s objection. During defense counsel’s closing, the trial judge again sustained the state’s objection. The grounds for the objection do not appear on the record. However, in sustaining the objection the court stated, "I’m going to instruct them on the law, Mr. Allen. . . . You don’t need to keep trying to instruct them not to do so." (R. 117). Defense counsel failed to make a timely objection. Finally, defense counsel requested the trial judge instruct the jury that there was no violation unless Appellant caused harm by his failure to give the correct name initially. The trial judge rejected that argument and instructed the jury using the standard jury instructions for section 843.02, Florida Statutes (1999).

A. A trial judge has broad discretion to admit or exclude evidence. Thomas v. State, 1999 WL 777439, (Fla. 1999). To overturn an evidentiary ruling, Appellant must demonstrate an abuse of discretion. Id. Section 59.041 states:

No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.

Appellant argues that he was entitled to establish the credibility of the witness, and establish additional facts related to direct testimony. Morrell v. State, 335 So.2d 836 (Fla. 1^st DCA 1976). According to Appellant, defense counsel merely attempted to "shed light on the direct testimony of the witness." (Initial Brief 6). However, review of the trial transcript shows that defense counsel attempted to show that the underlying charge was later dropped. Such fact was not in issue in the proceeding below, nor was it probative of any fact in issue. § 90.401, Fla. Stat. (1999); State v. Taylor, 648 So. 2d 701, 704 (Fla. 1995).

B. Appellant next argues that the trial judge failed to instruct the jury that there can be no finding of resistance without proof of harm. P.P. v. State, 466 So. 2d 1140 (Fla. 2d DCA 1985). In P.P. v. State, the suspect gave his correct birth date, but misstated the year twice. The district court ruled that the state failed to show intentional misrepresentation. In an opinion subsequent to P.P. v. State, the district court stated:

The issue here is whether the defendant obstructed the officer in the performance of his duties within the meaning of the statute. In pursuing a criminal investigation and in processing the defendant's arrest, the officer was carrying out the duties of his office. It seems obvious to us that one who gives an officer false identification under the circumstances outlined is hindering the officer's performance of those duties.

Caines v. State, 500 So.2d 728, 730 (Fla. 2D DCA 1987). The trial court adjudicated Caines guilty of obstruction for giving the name and address of a friend as his own. Had the district court intended to interpret section 843.02 as requiring proof of harm, it would likely have articulated that requirement in Caines where police discovered Caines’s correct identity after they had arrested and charged the other person. In fact, no second district court opinion construing section 843.02 requires proof of harm. D.G. v. State, 661 So.2d 75 (Fla. 2D DCA 1995); State v. Freeney, 613 So.2d 523 (Fla. 2D DCA 1993); Nelson v. State, 543 So.2d 1308 (Fla. 2D DCA 1989); State v. Parish, 509 So.2d 1365 (Fla. 2D DCA 1987); City of St. Petersburg Beach v. Jewell, 489 So.2d 78 (Fla. 2D DCA 1986); R.L.L. v. State, 466 So.2d 1230 (Fla. 2D DCA 1985); State v. Tousignant, 460 So.2d 450 (Fla. 2D DCA 1984); Clinton v. State, 421 So.2d 186 (Fla. 2D DCA 1982). Testimony at trial established that Appellant gave a false name, and Appellant concedes that giving a false name can constitute obstruction. (Initial Brief 7).

C. Contemporaneous objection on the record is required to preserve an issue for appeal. Hagan v. Sun Bank, 666 So. 2d 580 (Fla. 2d DCA 1996). An appellate court may review unpreserved error in those circumstances in which the error could not have been corrected by instruction, and "so damaged the fairness of the trial that the public’s interest in our system of justice justifies a new trial." Id. at 586. The trial judge’s statement, "[y]ou don’t need to keep trying to instruct them not to [follow the law]," does not rise to the level of fundamental error.

Appellant has failed to establish reversible error as to his first two points on appeal. The trial judge correctly excluded testimony of a fact not in evidence. The trial judge also accurately charged the jury from the standard jury instructions for section 843.02. Appellant’s third point fails because this court may not review errors which not have not been reserved by contemporaneous objection unless the doctrine of fundamental error applies. The error in question could have been corrected at trial with a curative instruction.

For the foregoing reasons, it is ORDERED that the rulings of the county court are AFFIRMED.

ORDERED February 2000.

Charles B. Curry

Chief Judge