Opinion
No. 1D18-2415
04-09-2020
Julian RISECH, Appellant, v. STATE of Florida, Appellee.
Andy Thomas, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
Andy Thomas, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
Lewis, J.
Appellant, Julian Risech, appeals his judgment and sentences and raises four arguments on appeal, only two of which merit discussion. Appellant contends that the trial court erred in denying his motion for judgment of acquittal on the harassment charge and in denying his peremptory strike of a prospective juror. For the reasons that follow, we affirm.
FACTUAL BACKGROUND
The State charged Appellant with burglary of a conveyance with person assaulted/battered (Count I), felony battery (Count II), felony criminal mischief (Count III), and harassing a victim (Count IV). During jury selection, defense counsel initially accepted Juror No. 10. Shortly thereafter, however, defense counsel attempted to exercise a back strike against the prospective juror. When the prosecutor asked for a race-neutral reason for the strike, defense counsel argued that the juror was a Caucasian male who was not a member of a protected class. When asked by the trial court what the "record reason" for striking the juror was, defense counsel stated, "[W]e maintain that [Appellant] simply did not like him from the responses that he provided while we were in the voir dire process. And that this is a punishable by life felony, and [Appellant] has expressed his sentiment to us about him." The trial court replied, "You have to have a record reason, and there’s nothing that’s on the record, so I’m not going to allow the challenge ...." When later asked if the six jurors, including Juror No. 10, were acceptable to the defense, defense counsel stated, "[T]his is an acceptable jury to the defense." When asked by the court, "Are these the six jurors and one alternate that you’d like to have serve as your jury," Appellant replied, "Yes, ma’am." When the prosecutor requested that the jury not be sworn in because of depositions scheduled for the following day, defense counsel stated, "[W]e would ask the jury be sworn." After further argument by the prosecutor in favor of her request, and after the trial court elaborated on an earlier unrelated ruling at defense counsel’s request, the jury was sworn in.
During Appellant’s trial, the victim, who had previously dated Appellant, testified that the two were just friends when the events leading to the criminal charges occurred. With respect to the harassment charge, the victim testified about her telephone conversations with Appellant while he was in jail and about his repeated requests for her to change her story and get the charges dropped. During one of the calls, Appellant, who had been repeatedly warned by the trial court at his first appearance not to contact the victim, told the victim "to go to the courthouse and take back everything [she] said." On another call, Appellant stated, "Do anything ... and above and beyond anything and everything to get these charges off me. Get me out of this jail." Other statements made by Appellant included: "Make sure it’s well-known that you are f------ definitely decided that nothing is going through with this case."; "No. I’m telling you. I’m not asking you anything. I’m telling you what you have to do. You’re not listening."; "Because I need you there [in court] saying that nothing happened."; and "You can go in there and be, like, here, this is what I want to happen. None of that happened. And I was just – we were both just high on drugs." When asked if she listened to Appellant, the victim testified, "I didn’t necessarily tell them that I lied, but I told them that I wanted to take it back." When asked how she felt, she replied, "I mean, I was scared. I didn’t know really how to feel or think at that point." When asked what she was scared of, she replied, "He would find somebody or get out and come after me." The victim eventually submitted a sworn statement requesting that the charges be dropped. When asked why, she replied, "Basically, the guilt factor of it. I just was tired of him asking me to do it, and I felt like it was my fault." After the State rested its case, defense counsel moved for a judgment of acquittal on Counts I and IV. Defense counsel argued in part:
As to Count IV, harassing a victim, again, the argument is that the State has failed to prove a prima facie case. And I would be challenging specifically Element One, [Appellant], intentionally harassed or attempted to harass [the victim].
The testimony from the investigator was that she had been calling him, and he’s answering. Even – and she’s calling him, and she’s also answering when he calls her, even from other people’s numbers. I would submit to the Court that that’s not harassment. And on that basis, I’d move for a judgment of acquittal as to Count IV, harassing a victim.
The trial court denied the motion.
The jury found appellant guilty as charged on Counts I, III, and IV, but not guilty on Count II. The trial court adjudicated Appellant guilty of the three offenses and sentenced him to ten years’ imprisonment on Counts I and IV, to be followed by five years’ probation and to five years’ imprisonment on Count III, with the sentences to run concurrently. This appeal followed.
ANALYSIS
Appellant first argues that the trial court erred in denying his motion for judgment of acquittal on the harassing a victim charge. An appellate court reviews a trial court’s denial of such a motion de novo to determine whether the evidence is legally sufficient to sustain a conviction. Johnson v. State , 287 So. 3d 673, 676 (Fla. 1st DCA 2019). In doing so, the court must consider the evidence and all reasonable inferences therefrom in a light most favorable to the State. Id. In a case where the State submitted some direct evidence, the denial of a motion for judgment of acquittal will be affirmed if it is supported by competent, substantial evidence. Id.
In Count IV, the State charged Appellant with violating section 914.22(3), Florida Statutes (2017), which provides in part that whoever "intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person" from attending or testifying in an official proceeding or cooperating in an official investigation commits the crime of harassing a witness, victim, or informant. Appellant argues that because the State’s evidence showed that he and the victim engaged in consensual calls while he was incarcerated and that the victim initiated some of the contacts, there was no proof of harassment. In support of his argument, Appellant relies upon the definition of "harass" in section 784.048(1)(a), Florida Statutes, which addresses stalking and defines "harass" as engaging in a "course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." However, not only did defense counsel not rely upon that specific definition below or argue that the State had to prove substantial emotional distress, but also section 784.048 defines "harass," along with several other terms, with the qualifier "[a]s used in this section." The offense of harassing a victim is not included within the stalking statute. As such, any argument on appeal about substantial emotional distress is rejected. See State v. Currilly , 126 So. 3d 1244, 1246 (Fla. 1st DCA 2013) (noting that in order for an argument to be cognizable on appeal, it must be the specific contention asserted as the legal ground for the objection below); see also Medrano v. State , 199 So. 3d 413, 415 (Fla. 4th DCA 2016) ("[T]he definitions upon which Appellant relies are not applicable to the grand theft statute because those definitions are preceded by qualifying language limiting their applicability to their respective chapters.").
The term "harass" as it is used in section 914.22(3) has not been defined by the Legislature. If a word is not defined in a statute, the word should be given its plain and ordinary meaning, which may be determined by reference to a dictionary definition. Robinson v. State , 205 So. 3d 584, 590 (Fla. 2016) ; see also Morton v. State , 988 So. 2d 698, 702 (Fla. 1st DCA 2008) (explaining that in the absence of an internal definition in a statute, a court may consider the dictionary definition of a word to ascertain its meaning in everyday usage). The dictionary meaning of the term "harass" is to "exhaust, fatigue," "to annoy persistently," or "to create an unpleasant or hostile situation ... by uninvited and unwelcome verbal or physical conduct." Harass, Merriam-Webster Online Dictionary , https://www.merriamwebster.com/dictionary/harass (last visited Mar. 10, 2020). When considering this definition, there is no question that Appellant’s numerous calls to the victim and the victim’s trial testimony showed that Appellant repeatedly harassed her to change her story and to have the charges dropped. Indeed, the victim eventually provided a sworn statement requesting that the charges be dropped. She testified that she was tired of Appellant’s requests and that she felt guilty and scared. Based upon such, the trial court did not err in denying Appellant’s motion for judgment of acquittal on the harassment charge.
Appellant next asserts that the trial court erred by denying his peremptory strike on Juror No. 10, a white male. The State argues that this argument was not preserved because defense counsel did not renew her objection or argument before the jury was sworn. Generally, a party must renew an objection to a peremptory strike before affirmatively accepting a jury. Smith v. State , 143 So. 3d 1194, 1196 (Fla. 1st DCA 2014). However, if a jury is sworn only minutes after the initial objection, an explicit renewal of the objection is not necessary. Id. In Smith , we determined that because the jury was sworn only a matter of minutes after the objection to a peremptory strike, the objection did not need to be renewed because it was not reasonable to believe that defense counsel abandoned the objection. Id.
Here, after denying defense counsel’s strike of Juror No. 10, the trial court asked the defense whether the six jurors, including that juror, was an acceptable jury, to which defense counsel stated, "Your Honor, this is an acceptable jury to the defense." When the court later asked Appellant whether the six jurors and the one alternate were acceptable to him, he replied, "Yes, ma’am." After the prosecutor asked that the jury not yet be sworn, defense counsel stated, "Your Honor, we would ask the jury to be sworn." After additional argument by the State regarding its request and after the trial court elaborated on a previous unrelated ruling at defense counsel’s request, the jury was sworn in. Under these circumstances, we agree with the State that defense counsel should have renewed her objection to Juror No. 10 sitting on the jury before the jury was sworn in.
With that said, even if the issue had been preserved for appeal, we would reject Appellant’s argument on the merits. Parties are constitutionally entitled to the assurance that peremptory challenges will not be exercised in a manner that excludes members of discrete racial groups. Collier v. State , 134 So. 3d 1042, 1043 (Fla. 1st DCA 2013). The initial presumption is that peremptory juror challenges are exercised in a nondiscriminatory manner. Id. As we have explained, in Melbourne v. State , 679 So. 2d 759, 764 (Fla. 1996), the Florida Supreme Court set forth three steps for a race-based challenge to a peremptory strike. Collier , 134 So. 3d at 1043. Under the first step, three sub-steps are required, with the first being that the objecting party must make a timely objection on the ground that the strike is based on race. Id. Second, the objecting party must show that the prospective juror is a member of a distinct racial group. Id. Third, the objecting party must request that the court ask the striking party its reason for the strike. Id. Once these three steps are satisfied, the burden shifts to the party seeking the strike to come forward with a race-neutral explanation for such. Id . If the reason given is facially race-neutral and the court believes, given all the circumstances surrounding the strike, that the explanation is not pretext, the strike will be sustained. Id. at 1044. In this last step, the court’s focus is on the genuineness of the explanation, not its reasonableness. Id.
As Appellant acknowledges on appeal, we have characterized a white male as being a member of a distinct racial group for purposes of a Melbourne inquiry. See id. at 1043 ("Here the sub-steps of the first initial step of Melbourne were fulfilled. First, the state asked for a race-neutral reason for defense counsel’s peremptory strike. Next, the court stated that the prospective juror was a white male."). The Florida Supreme Court has as well. See Curtis v. State , 685 So. 2d 1234, 1237 (Fla. 1996) (noting that the issue presented in the case was whether the guidelines in Melbourne apply to a peremptory challenge that is exercised against a white venireperson and holding that the guidelines apply across the board to each prospective juror who is a member of a distinct racial group and that the goal of the guidelines is the elimination of racial discrimination in the exercise of peremptory challenges). Appellant’s attempt to argue that these decisions were wrongly decided is unavailing.
Appellant also argues that his reason for wanting to strike Juror No. 10 – that he "simply did not like him from the responses that he provided" – was a race-neutral explanation. However, the Florida Supreme Court has held that a prosecutor’s statement that he did not "particularly like" the prospective juror at issue and that he did not "think he is going to be the kind of juror that I would like" was not a race-neutral reason for a peremptory strike. See Nowell v. State , 998 So. 2d 597, 604 (Fla. 2008). The supreme court explained, "Florida courts have consistently rejected a general feeling or ‘dislike’ of a juror as a genuine race-neutral reason for exercising a peremptory challenge." Id. It further explained that "[t]his is especially so when the proponent of the strike points to nothing in the record, such as worrisome behavior or questionable answers given by the potential juror during voir dire, which supports a general distaste for a particular juror." Id. As the trial court recognized in this case, defense counsel did not point to anything in the record that supported Appellant’s dislike of Juror No. 10. Based upon such, Appellant is not entitled to reversal as to this issue.
In conclusion, we affirm Appellant’s judgment and sentences for the reasons set forth herein.
AFFIRMED .
Ray, C.J., and Osterhaus, J., concur.