        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                              DANIEL HUDSON,
                                 Appellant,

                                        v.

                            STATE OF FLORIDA,
                                 Appellee.

                                No. 4D18-1715

                               [August 21, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Martin S. Fein, Judge; L.T. Case No. 15-005378CF10A.

   Carey Haughwout, Public Defender, and David John McPherrin,
Assistant Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Rhonda Giger,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant Daniel Hudson was charged with aggravated battery. A jury
found Appellant guilty and he was sentenced to five years in prison. We
reversed Appellant’s conviction because the trial court abused its
discretion in admitting evidence of an uncharged collateral crime. See
Hudson v. State, 213 So. 3d 941 (Fla. 4th DCA 2017) (Hudson I).

    At his new trial, Appellant was found guilty of the lesser included
offense of felony battery and was again sentenced to five years in prison.
He now appeals this judgment and sentence, making three arguments on
appeal, two of which we find support reversal and remand. 1 First, the trial
court erroneously permitted the State to again introduce evidence of the
uncharged collateral crime, the same error that precipitated our earlier


1 We affirm without discussion Appellant’s third argument, related to the
introduction and consideration of testimony from two witnesses who testified at
the first trial and were deemed to be unavailable to personally appear and testify
at the second trial.
remand opinion. Second, the trial court erroneously instructed the jury
on the forcible felony exception to Appellant’s self-defense argument.

                               Background

   A. Hudson I

   In Hudson I, we summarized the facts that led to Appellant’s 2017
aggravated battery charge as follows:

      The conviction stemmed from a fight over a car repair.
      Appellant contended that he and the victim had agreed upon
      a price for the repair. A dispute arose. The victim stopped
      working on the car until he was paid more money. The
      disagreement took a violent turn. The victim was bringing
      furniture home in a U–Haul when [A]ppellant approached him
      from the street. Although accounts of the incident varied,
      [A]ppellant was charged with stabbing the victim in the leg.

Hudson I, 213 So. 3d at 942.

   The legal issue addressed in Hudson I involved Appellant’s alleged
confrontation with the victim’s wife. Id. The State contended that after
the stabbing, the victim’s wife confronted Appellant, and that he punched
the wife in the face. Id. The State did not charge Appellant with a crime
related to the incident with the victim’s wife. Before trial, defense counsel
objected to the State introducing evidence of this incident. The State
argued that evidence of Appellant punching the wife was inextricably
intertwined with the stabbing. Id. The trial court overruled the objection,
evidence was introduced related to this encounter, and Appellant was
convicted on the charge of aggravated battery.

   On appeal, we reversed Appellant’s conviction, finding the trial court
abused its discretion in admitting evidence of an uncharged collateral
crime. We found that “[i]t was not necessary to tell the full story of the
stabbing, it did not establish the context out of which the stabbing arose,
and it did not describe the events leading up to the stabbing.” Id. at 943.
We did not find the error to be harmless because “[w]ithout the testimony
of the punching incident, this case was a credibility contest between
[A]ppellant and the victim.” Id.

   B. Second Trial



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   Prior to Appellant’s new trial, defense counsel filed a motion in limine,
seeking to prohibit the State from mentioning collateral crimes or bad acts
involving the victim’s wife in accordance with our mandate in Hudson I.
The trial court unconditionally granted the motion.

   At trial, the State called a detective to testify. The detective explained
that he displayed photographic arrays to the victim and his wife, and that
both identified Appellant as the individual who stabbed the victim. The
State introduced the photographic arrays and accompanying
documentation. A form signed by the victim’s wife stated that she selected
photograph number 5 as the person who “hit [her]/punched [her]” and
identified herself as a “[v]ictim.” When the State moved to introduce the
exhibit into evidence, defense counsel raised a hearsay objection, with no
reference to the motion in limine. The objection was overruled.

   At the charge conference, defense counsel requested, and the trial court
agreed, that the jury would be instructed on self-defense. While discussing
the instruction, the trial court included the forcible felony exception to the
defense, stating that “the use of nondeadly force is not justified if you find
that [Appellant] was attempting to commit, committing or escaping after
the commission of an aggravated battery.” Defense counsel objected to
this instruction, arguing that Appellant was not charged with committing
another crime in addition to aggravated battery, therefore, the instruction
was improper. The trial court overruled the objection and instructed the
jury on the forcible felony exception.

   Before sending the exhibits back to the jury, the trial court asked both
parties to review the verdict form, the information, the instructions, and
the exhibits to make sure they did not have any objections. Both parties
immediately responded to the court’s request, and neither party objected.

  During its deliberations, the jury sent the trial court the following
question on a jury inquiry form:

      On Evidence Exhibit 1 Photo Array Form. [The victim’s wife]
      stated she had selected photo #5 as the person who (hit
      me/punch me) and she is listed as the victim. Why was this
      not indicated during the statements on 4-14-14? Is this
      relevant to the case?

    At this point, defense counsel moved for a mistrial “based on that.” The
trial court denied this motion, stating “[t]hat’s why I asked both parties to
please look at the exhibits before I send them back.” The trial court did,
however, return the jury inquiry form to the jury, with a written response

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stating “[i]t is to the evidence introduced in this trial and to it alone, that
you are to look for that proof.”

   Appellant was found guilty of the lesser included offense of felony
battery. Defense counsel then moved for a new trial, which was also
denied. Appellant was adjudicated guilty and sentenced to five years in
prison. This appeal followed.

                                  Analysis

   A. Collateral Crime Evidence

    We review the trial court’s ruling on a motion for mistrial for an abuse
of discretion. Jennings v. State, 123 So. 3d 1101, 1125 (Fla. 2013). The
abuse of discretion standard also applies to the denial of a motion for a new
trial. See Mitchell v. State, 245 So. 3d 805, 807 (Fla. 4th DCA 2018).

    Initially, we reject the State’s argument that this issue is not preserved
because defense counsel made a hearsay objection when the State offered
the unredacted photographic identification form wherein the victim’s wife
stated that Appellant was the person who “hit [her]/punched [her].” Prior
to trial, consistent with our opinion in Hudson I, the trial court made a
definitive ruling on defense counsel’s motion in limine, prohibiting the State
from mentioning collateral crimes or bad acts involving the victim’s wife in
accordance with our mandate. See § 90.104(1)(b), Fla. Stat. (2018) (“If the
court has made a definitive ruling on the record admitting or excluding
evidence, either at or before trial, a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.”); see also Tillman v.
State, 964 So. 2d 785, 787-88 (Fla. 4th DCA 2007) (holding that the trial
court’s granting of the State’s pretrial motion in limine constituted “a
definitive ruling on the record admitting evidence, meaning that Tillman
need not have renewed his objection to preserve his claim of error for
appeal.”). Thus, the issue is preserved for appeal.

    We also reject the State’s argument that the error was invited by defense
counsel. This is not the type of situation where defense counsel invited the
trial court to make an error, then sought to take an inconsistent position
on appeal. See Norton v. State, 709 So. 2d 87, 94 (Fla. 1997). Here, it was
the State, not defense counsel, that introduced the unredacted
identification form. Furthermore, in addition to filing the motion in limine,
defense counsel repeatedly reminded the trial court and the State to comply
with this Court’s mandate throughout the proceeding.



                                      4
   When we issued the mandate in Hudson I that the collateral crime
evidence regarding the victim’s wife was inadmissible, the trial court’s role
on this issue became “purely ministerial” and the admission of such
evidence was no longer within the discretion of the trial court. State v.
Gomez, 247 So. 3d 592, 593 (Fla. 3d DCA 2018) (quoting Hearns v. State,
54 So. 3d 500, 502 (Fla. 3d DCA 2010)). The trial court here sought to
comply with this Court’s mandate—it entered an order in limine to prohibit
the State from mentioning collateral crimes or bad acts involving the
victim’s wife and asked that the exhibits be reviewed prior to submitting
the evidence to the jury.

    Despite the trial court’s efforts, the State introduced evidence (possibly
inadvertently) in violation of the trial court’s order in limine and our
mandate in Hudson I. It was, therefore, an abuse of discretion to deny
defense counsel’s motion for mistrial and its subsequent motion for new
trial because the error deprived Appellant of a fair trial. “A motion for
mistrial should be granted only when the error is deemed so prejudicial
that it vitiates the entire trial, depriving the defendant of a fair proceeding.”
Jennings, 123 So. 3d at 1125 (quoting Floyd v. State, 913 So. 2d 564, 576
(Fla. 2005)); Fla. R. Crim. P. 3.600(b)(8) (a motion for a new trial should be
granted if the defendant did not receive a fair trial by a “cause not due to
the defendant’s own fault”).

    We do not find this error to be harmless. See State v. DiGuilio, 491 So.
2d 1129, 1139 (Fla. 1986). In fact, the jury’s question during deliberations
highlights the error. The trial court’s response to the question that “[i]t is
to the evidence introduced in this trial and to it alone, that you are to look
for that proof” did not cure the error, but instead actually instructed the
jury to consider the improper evidence. Cf. Perez v. State, 919 So. 2d 347,
364 (Fla. 2005) (“A motion for mistrial is properly denied where the matter
on which the motion is based is rendered harmless by a curative
instruction.”).

   B. The Forcible Felony Exception Instruction

   The trial court has “broad discretion in formulating appropriate jury
instructions.” Dorsett v. State, 147 So. 3d 532, 534 (Fla. 4th DCA 2013),
approved, 158 So. 3d 557 (Fla. 2015). We will reverse, however, if the trial
court’s decision to give a particular instruction results in the “miscarriage
of justice or the instruction was reasonably calculated to confuse or
mislead the jury.” Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th DCA
2002) (quoting Barton Protective Servs., Inc. v. Faber, 745 So. 2d 968, 974
(Fla. 4th DCA 1999)).


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   The forcible felony exception provides that self-defense is not available
as a justification if the defendant “[i]s attempting to commit, committing,
or escaping after the commission of, a forcible felony.” § 776.041(1), Fla.
Stat. (2018).     This exception applies only when the defendant is
committing an independent forcible felony separate from the one for which
he or she is claiming self-defense. Giles, 831 So. 2d at 1265 (explaining
that the plain language of § 776.041(1) “indicates that it is applicable only
under circumstances where the person claiming self-defense is engaged in
another, independent ‘forcible felony’ at the time”). This is because the
instruction essentially negates the defendant’s theory of self-defense to the
actual crime charged. See Martinez v. State, 981 So. 2d 449, 453 (Fla.
2008) (“This circular logic would most probably confuse jurors because the
apparent result is that the instruction precludes a finding of self-defense
and amounts to a directed verdict on the affirmative defense.”). As
conceded by the State, the instruction here was erroneous as Appellant
was charged with only a single count of aggravated battery.

                                 Conclusion

    With the expectation that the third time’s the charm, we reverse and
remand for a new trial. Appellant is entitled to this new trial because the
trial court abused its discretion in denying Appellant’s motions for a
mistrial and a new trial based on the admission of improper collateral
crime evidence. We further find trial court error in giving the forcible felony
jury instruction.

   Reversed and remanded for a new trial.

TAYLOR and MAY, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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