5D07-1512 David Flores v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-1512

Case Date: 02/11/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

DAVID FLORES, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed February 15, 2008 Appeal from the Circuit Court for Orange County, Julie H. O'Kane, Judge. James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee. EVANDER, J. After a jury trial, Flores was convicted of battery, aggravated assault, tampering with a witness, and tampering with evidence. The jury also returned a not guilty verdict on an arson charge. Flores was ultimately sentenced to fifty-one weeks in the county jail for the battery, followed by two concurrent five year prison sentences for aggravated assault and tampering with a witness, followed by a five year prison sentence for Case No. 5D07-1512

tampering with evidence. On appeal, Flores raises two issues. First, he contends that his acquittal on the arson charge required the trial court to vacate his conviction for evidence tampering. Second, Flores contends that the cumulative incarcerative

sentences for multiple felony convictions, if ordered to run consecutive to a county jail term, cannot exceed one year. We reject both of Flores' arguments. The evidence established that two witnesses observed Flores and his brother beating an unidentified individual. The two witnesses yelled at Flores and his brother to stop. Flores and his brother got into a white Cadillac and left the scene. However, shortly thereafter, Flores and his brother returned in the white Cadillac and drove toward the two witnesses. (Flores' brother was the driver.) Flores exited the vehicle, flashed what appeared to be a weapon, and verbally threatened one of the two witnesses. The threatened witness then attempted to run toward an apartment complex. Flores reentered the Cadillac. Flores' brother drove the vehicle at the witness and eventually hit him. Flores and his brother then fled the scene. The threatened witness was able to identify Flores from a photo array. Approximately two hours after the incident, police investigators located Flores and his brother at a convenience store in Apopka. The Cadillac was not present. However, Flores had a set of keys in his pocket which he acknowledged were for his mother's white Cadillac. The vehicle was not at Flores' mother's house, but was subsequently discovered at a different location. The vehicle had been "torched." At trial, the State presented expert testimony that the car had been deliberately destroyed by fire. The white Cadillac was the subject of both the arson count and the evidence tampering count. In the arson count, the State's information alleged that Flores and his

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brother had "willfully and unlawfully, . . . , by fire or explosion, damaged, or caused to be damaged. . . a motor vehicle." In the evidence tampering count, the State's information alleged that Flores and his brother "did alter, destroy, conceal, or remove. . . a motor vehicle, with the purpose of impairing its verity or availability" in a criminal proceeding or investigation. Subsequent to the jury verdict, Flores filed a motion to vacate the evidence tampering conviction, alleging that the not guilty verdict on the arson count negated an essential element of the crime of tampering with evidence. We find that the trial court properly denied Flores' motion. An inconsistent verdict claim presents a pure question of law and is reviewed de novo. Brown v. State, 959 So. 2d 218, 220 (Fla. 2007). As a general rule, inconsistent verdicts are permitted in Florida because jury verdicts can be the result of lenity and, therefore, do not always speak to the guilt or innocence of a defendant. Id.

Inconsistent verdicts may arise from a jury's exercise of its "inherent authority to acquit" a defendant even if the facts support a conviction. State v. Connelly, 748 So. 2d 248, 252 (Fla. 1999). The Florida Supreme Court has recognized only one exception to the general rule allowing inconsistent verdicts. This exception is referred to as a "true" inconsistent verdict. A true inconsistent verdict occurs when an acquittal on one count negates a necessary element for conviction on another count. Brown, 959 So. 2d at 220; see also State v. Powell, 674 So. 2d 731, 732-33 (Fla. 1996). The court has expressly declined to extend the truly inconsistent verdict exception to verdicts that are factually inconsistent. Connelly, 748 So. 2d at 252.

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While the jury's verdict in the instant case was arguably factually inconsistent, it was not a true inconsistent verdict. Arson requires damage by fire or explosion. 1

However, evidence tampering may be established by other means, including alteration, concealment, or removal of an item to impair its verity or availability for a criminal proceeding or investigation. 2 Thus, an acquittal of the arson charge against Flores did not negate a necessary element for a conviction on the evidence tampering charge. In challenging the validity of his sentence, Flores relies primarily on section 922.051, Florida Statutes (2006), and our decision in Fleming v. State, 637 So. 2d 945 (Fla. 5th DCA 1994). Flores' reliance is misplaced.

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