5D07-2079 Arnell Lykes v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-2079

Case Date: 01/14/2008

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

ARNELL B. LYKES, Appellant, v. STATE OF FLORID A, Appellee. ________________________________/ Opinion filed January 18, 2008 Appeal from the Circuit Court for Orange County, Marc L. Lubet, Judge. James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D07-2079

ORFINGER, J. Arnell B. Lykes appeals his conviction of fleeing to elude a law enforcement officer at a high speed or with wanton disregard for the safety of persons or property in violation of section 316.1935(3)(a), Florida Statutes (2006). He contends that the jury instruction was fundamentally flawed as it may have deprived him of a unanimous jury verdict. We disagree and affirm.

At the outset, we note that no objection was made at trial to the standard jury instruction given by the court. Jury instructions are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. "To justify not imposing the contemporaneous objection rule, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. In other words, fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict." Reed v. State, 837 So. 2d 366, 370 (Fla. 2002) (quoting State v. Delva , 575 So. 2d 643, 644-45 (Fla. 1991) (citations and internal quotation marks omitted)). In the instant case, we find no error, fundamental or otherwise. Among other things, the jury ins truction required the State to prove beyond a reasonable doubt that "during the course of the fleeing or attempting to flee, the defendant drove at a high speed or in any manner demonstrating a wanton disregard for the safety of persons or property." Mr. Lykes contends that based on this instruction, some of the jurors may have concluded that he fled at a high speed, while others might have believed that he endangered persons or property while fleeing. If that occurred, Mr. Lykes contends that he was deprived of a unanimous verdict. We disagree. Under the applicable fleeing statute, there are two alternative ways to prove a defendant guilty: by showing that (1) the defendant fled law enforcement officers at high speed, or (2) he fled in any manner demonstrating a wanton disregard for the safety of persons or property.

Download 5D07-2079 Arnell Lykes v. State.pdf