5D11-978 Yulanda Powell v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D11-978

Case Date: 02/13/2012

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2012

YULANDA E. POWELL, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed February 17, 2012 Appeal from the Circuit Court for Orange County, Richard F. Conrad, Judge. Jennifer A. Jacobs, Winter Park, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee. CASE NO. 5D11-978

LAWSON, J. Yulanda E. Powell appeals her conviction for felony child abuse arising from an incident in which she allegedly hit, kicked and choked her teenage son, and threatened or attempted to hit him with a cement weight. We reverse the conviction and remand for a new trial based upon the trial court's error in denying Powell the opportunity to crossexamine her son regarding the details of his juvenile probation (which Powell contended to be the motive for her son's fabrication of facts that served as a basis for the charge

against her). See Pennsylvania v. Ritchie, 480 U.S. 39, 51-52 (1987) ("Of course, the right to cross-examine includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or unbelievable.") (citations omitted); Watts v. State, 450 So. 2d 265, 267 (Fla. 2d DCA 1984) ("In a criminal trial the defendant has the absolute right to fully cross-examine adverse witnesses to discredit them by showing bias, prejudice, interest, or possible ulterior motive for testifying. This is particularly so where a key witness is being examined.") (citations omitted). We find no error in the denial of Powell's motion for judgment of acquittal based upon the defense of parental privilege, Chisolm v. State, 58 So. 3d 304 (Fla. 1st DCA 2011), or in the trial court's refusal to instruct the jury using a proffered instruction on the defense. Even if the evidence had supported giving this instruction, Powell's proposed instruction did not accurately reflect the law. Id. We address one other issue for the benefit of trial court and the parties in the event of a second trial. Before the first trial, Powell moved in limine to preclude the State from eliciting testimony from her son about an uncharged incident during which she allegedly pulled a knife on him. In response, the State explained that it planned to present evidence that Powell overheard a phone conversation in which her son told his father about the knife incident, and that this is what precipitated and motivated the charged conduct -- making the prior incident relevant to the charged offense. See generally Griffin v. State, 639 So. 2d 966, 970 (Fla. 1994) (explaining that evidence of uncharged misconduct can be relevant and admissible when "necessary to adequately describe the events leading up to" commission of the charged offense). Based upon this argument, the trial court

denied the motion in limine. Powell does not argue that this ruling was erroneous at the

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time it was made, but claims error in that the State never presented the promised evidence necessary to link the two incidents.1 We conclude that this issue was not preserved for appellate review. Normally, a motion in limine and a definitive ruling are sufficient to preserve an argument for appeal without the need to contemporaneously object when the evidence is admitted at trial. See

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