06-5686 KERRICK LEVARR PARKER v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 06-5686

Case Date: 10/10/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA KERRICK LEVARR PARKER, Appellant, v. CASE NO. 1D06-5686 STATE OF FLORIDA, Appellee. _____________________________/ NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Opinion filed October 10, 2008. An appeal from the Circuit Court for Escambia County. Frank Bell, Judge. Nancy A. Daniels, Public Defender, and Laura Anstead, Assistant Public Defender, Tallahassee, for Appellant. Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

LEWIS, J. Kerrick Parker, Appellant, challenges his convictions for resisting an officer without violence and burglary of a dwelling. Specifically, he contends the trial court

erred in denying his motion to dismiss the former charge and his motion to suppress evidence that would have been dispositive of the latter. Both of these motions were based on the argument that the officer who attempted to, and ultimately did, detain Appellant lacked reasonable suspicion to do so. Finding no error in the trial court's determination that the officer had reasonable suspicion to stop Appellant, we affirm its rulings on the motions to dismiss and to suppress without further discussion. However, Appellant also contends the trial court erred in denying his motion for judgment of acquittal as to the offense of resisting an officer without violence, charged pursuant to section 843.02, Florida Statutes (2005). The State concedes error on this point, admitting that it presented no evidence to support an inference that Appellant knew the officer was attempting to detain him. We agree. Because the State failed to present a prima facie case of resisting an officer without violence, we reverse the denial of the motion for judgment of acquittal as to that offense and remand for further proceedings consistent with this opinion. The facts pertinent to our decision are undisputed. One night in October 2005, at approximately 3:00 a.m., Officer Joshua Hendershott was on patrol, investigating a recent domestic battery from which the suspect had fled. The only information Hendershott had was that a domestic battery had occurred in the area where he was patrolling and that the suspect was an "unidentified black male" wearing "unknown 2

clothing." The streets were empty, except for two black males. He determined to approach these two individuals to ask if they had seen the domestic battery suspect. When Hendershott briefly shined his spotlight, both individuals ran. Once they began to run, Hendershott developed a suspicion that they were involved in a crime. Hendershott immediately lost sight of Appellant, as he ran through a wooded area that backs up to a residence. He then apprehended the other man and called for the assistance of a K-9 unit to track Appellant's trail. The K-9 dog led Hendershott to the backdoor of a residence. He observed Appellant exit from this door and then apprehended him. Thereafter, Appellant was charged with resisting an officer without violence. Prior to trial, Appellant moved to dismiss the charge of resisting an officer without violence. The motion was denied, and the case proceeded to a jury trial. At trial, the court denied Appellant's motion for judgment of acquittal as to the charge of resisting an officer without violence, and he was convicted and sentenced for that crime. On appeal, he argues that his flight from the police officer was insufficient to raise a reasonable suspicion that criminal activity was afoot and that the flight itself could not form the basis of a proper conviction for resisting an officer without violence. We agree in part and disagree in part. A trial court's denial of a motion for judgment of acquittal is reviewed de novo 3

to determine whether the evidence was legally sufficient to support a finding that the defendant committed each element of the crimes charged. Jones v. State, 790 So. 2d 1194, 1196-97 (Fla. 1st DCA 2001). To establish a prima facie case of resisting an officer without violence, the State must show that the officer had an "articulable well founded suspicion of criminal activity" to justify the attempt to detain the defendant and that the defendant had reason to believe the officer was attempting to detain him. See S.G.K. v. State, 657 So. 2d 1246, 1247 (Fla. 1st DCA 1995). In determining whether an officer had a reasonable suspicion of criminal activity, courts consider the totality of the circumstances. Huffman v. State, 937 So. 2d 202, 206 (Fla. 1st DCA 2006). Relevant factors include "the time of day; the appearance and behavior of the suspect; . . . and anything incongruous or unusual in the situation as interpreted in light of the officer's knowledge." Id. (quoting Grant v. State, 718 So. 2d 238, 239 (Fla. 2d DCA 1998)). Flight, in itself, is insufficient to support a reasonable suspicion of criminal activity. S.G.K., 657 So. 2d at 1248. Nonetheless, flight can be one factor, among others, that contributes to an officer's reasonable suspicion of criminal activity. Blue v. State, 837 So. 2d 541, 546 (Fla. 4th DCA 2003). In Illinois v. Wardlow, 528 U.S. 119, 123-25 (2000), the Supreme Court held that unprovoked flight in a high-crime area constitutes grounds for a "reasonable, articulable suspicion that criminal activity 4

is afoot," under Terry v. Ohio, 392 U.S. 1 (1968). Specifically, the Wardlow Court upheld the reasonableness of a Terry stop where the defendant "fled upon seeing police officers patrolling an area known for heavy narcotics trafficking." 528 U.S. at 121. The officers who stopped the defendant were part of a four-car caravan of officers. Id. The Wardlow Court opined that "[h]eadlong flight

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