Opinion
1D2023-3168
11-27-2024
Isaac Green, Appellant, v. State of Florida, Appellee.
Olivia M. Goodman of O'Brien Hatfield, P.A., Tampa, Appellant. Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Alachua County. James M. Colaw, Judge.
Olivia M. Goodman of O'Brien Hatfield, P.A., Tampa, Appellant.
Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
KELSEY and MK THOMAS, JJ, concur; BL THOMAS, J, concurs with opinion.
B.L. THOMAS, J, concurring.
Appellant challenges the circuit court's summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. I concur with the panel's decision to affirm.
A jury found Appellant guilty of attempted sexual battery with victim physically helpless to resist and trespass of an occupied structure. The facts of this case are found in the record on direct appeal in Green v. State, 295 So.3d 1164 (Fla. 1st DCA 2020). Evidence at trial showed that the victim had been drinking alcoholic beverages during the night in question. After walking back to her apartment from the bar, she went to her bedroom and fell asleep. She woke up, confused and terrified, finding a strange man, Appellant, standing over her with a camera flash going up and down her body. Appellant told her they met at a club and that they already had sex. Appellant then hugged her and left. The victim told police that she could not remember anything from when she was halfway home until the point when Appellant began recording her using his cellphone.
Several days later, police conducted a traffic stop involving Appellant. Appellant consented to a search of his vehicle, during which his cellphone was seized. Police obtained a search warrant and searched the contents of the phone. A video obtained from the phone showed Appellant's fingers close to the victim's vagina. The fingers appeared to be moving closer when the camera angle abruptly changed.
Police interrogated Appellant. After police advised Appellant of his Miranda rights, Appellant agreed to answer questions but then later asked if it was okay for him to speak to his lawyer. The police investigator answered Appellant by saying "yes" and that it was "his right to do so." Appellant did not say he wanted to call his attorney or wanted his attorney present or wanted to stop the questioning. Police did not terminate the interrogation. During the interrogation, Appellant admitted to recording the victim with the intent of touching her vagina. When she noticed he was recording her, she got mad and told him to leave. Trial counsel moved to suppress portions of the interrogation. The trial court denied the motion, finding Appellant's comment was not a clear invocation of his right to an attorney. It was equivocal and ambiguous.
After the jury found Appellant guilty, the trial court sentenced him to fifteen years in prison for the attempted sexual battery and to time served for the trespass.
On direct appeal, appellate counsel argued that the trial court erred by denying the motion to suppress and that the trial court abused its discretion by precluding Appellant from presenting evidence of cocaine found in the victim's urine. Appellate counsel asserted that Appellant made an unequivocal and unambiguous invocation of his right to counsel. The State argued that Appellant's comment was a prefatory question concerning his right to counsel. His comment did not clearly indicate that he wanted counsel present or that he would not answer further questions without counsel. This Court per curiam affirmed the judgment and sentence. Green, 295 So.3d at 1164.
The order now on appeal summarily denied Appellant's claims that his trial counsel was ineffective for (1) failing to move to suppress the cellphone and the video obtained from it, (2) failing to object to the jury instructions and the jury verdict form, (3) failing to move for a mistrial after a juror had fallen asleep, and (4) failing to file a post-verdict motion for new trial after the jury returned a verdict that was not supported by the weight of the evidence.
As to the first claim, police obtained Appellant's cellphone after he consented to a search of his vehicle. The contents of the phone were then searched pursuant to a lawfully issued search warrant. Under these circumstances, a motion to suppress would not have succeeded, and trial counsel was not ineffective for failing to pursue this issue.
As to the second claim, the trial court's instruction on attempted sexual battery substantially mirrored the standard jury instruction for the underlying offense. "[C]ounsel cannot be deemed ineffective for failing to object to the standard jury instruction or to request a special instruction." Vining v. State, 827 So.2d 201, 214-15 (Fla. 2002). Additionally, a trial court is not required to provide the jury with a verdict form separating out the specific elements of an offense. See Buford v. State, 492 So.2d 355, 358 (Fla. 1986) ("[A] special verdict form is not required to determine whether a defendant's first-degree murder conviction is based upon premeditated murder, felony murder or accomplice liability."); Perry v. State, 10 So.3d 695 (Fla. 1st DCA 2009) ("[T]he trial court's denial of defendant's requested special jury verdict form indicating unanimity on the particular method of sexual battery on a child . . . did not constitute error."). Counsel was not ineffective for failing to pursue these issues.
As to the third claim, the trial court noticed a juror was sleeping while the State was presenting inculpatory testimony and was publishing to the jury an inculpatory, recorded interview of Appellant. The court remedied the situation by providing the jurors time to stand up, stretch, and get a drink. Because the juror was sleeping during the State's presentation of inculpatory evidence, Appellant cannot demonstrate prejudice. See Footman v. State, 332 So.3d 1116, 1119 (Fla. 1st DCA 2022) ("The State's witness was offering inculpatory evidence.... Footman also cannot show prejudice. If anything, Footman may have benefitted from the juror missing part of the testimony."). A motion for mistrial would not have been granted. Counsel was not ineffective for failing to pursue this issue.
As to the fourth claim, the jury's verdict was consistent with the weight of the evidence. The victim was intoxicated, and she eventually passed out. While she was passed out, Appellant invaded her home and began recording her with his cellphone. He then started moving his hand toward her vagina, manifesting an intent to sexually batter the victim. His attempt was thwarted when she woke up and stopped him. Because any motion for new trial would have been properly denied, Appellant's trial attorney did not provide ineffective assistance of counsel. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981) (explaining that the weight of the evidence "is a determination of the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other").
The record in this case conclusively shows that Appellant is entitled to no relief. Fla. R. App. P. 9.141(b)(2)(D).