          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D14-2449
                  _____________________________

DEVIN LEE BASS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                   ___________________________

On appeal from the circuit court for Santa Rosa County.
John L. Miller, Judge.

                        December 14, 2018


PER CURIAM.

     At a New Year’s Eve gathering, Devin Bass got drunk and
angry. He hit Cody Healy in the face so hard that Healy fell back
into a bonfire. According to an eyewitness, Healy’s hair was in
flames when he was pulled away, and he “looked dead.” Healy was
not dead, but he suffered significant injuries and was hospitalized
for about a month.

     Most of the crowd scattered after the assault, but Bass stuck
around. Police soon arrived, and an officer approached Bass and
asked what happened. Bass said there had been an altercation but
that he knew little about it. The officer decided he should keep an
eye on Bass, so he asked Bass to walk with him towards a larger
group. Bass and the officer started walking together, but the officer
became distracted and soon discovered Bass was no longer with
him. The officer then saw that Bass had returned to his truck and
had removed his shirt and hat. Bass was leaning inside the truck,
digging around. Concerned Bass was reaching in for a weapon, the
officer ordered Bass to step away from the truck, and Bass
complied. An officer asked Bass for his name, and Bass lied; he
said he was “Dillon Barns.” The officers then searched the truck
(with Bass’s consent) and found an ID card with Bass’s picture and
real name.

     Bass continued to insist he was not Bass, telling officers the
truck and identification card belonged to a friend. After further
questioning, Bass gave an incorrect birthdate. The officer then
placed Bass in the back of his patrol car while he continued with
the investigation. After gathering information from witnesses, the
officer returned to his patrol car and searched for Bass’s
information on his computer. At one point, while the officer was
running the information, he turned to Bass and said “hey Devin?”
and Bass responded “yeah?” The officer then said “I got you,” and
Bass finally admitted who he was.

    The State charged Bass with three counts of aggravated
battery with great bodily harm—one count for the attack on
Healey, and two counts for separate attacks on other victims. The
State also charged Bass with one count of resisting an officer
without violence, based on his lying about his identity. The jury
convicted Bass of the lesser offense of felony battery against
Healey, and it acquitted Bass as to the other victims. It convicted
him of resisting an officer. The court sentenced Bass to five years’
imprisonment and one year of probation. This is Bass’s appeal,
which presents six independent issues.

                                  I.

     Bass’s first argument is that the trial court erred in not giving
a requested instruction about character evidence. The proposed
instruction would have told the jury to “consider testimony that a
defendant is a peaceful person along with all the other evidence.”
Bass contends that without this instruction, the jury was not
adequately instructed on his theory of defense, namely that he was
a peaceful person. See Stephens v. State, 787 So. 2d 747, 756 (Fla.
2001) (noting that to be entitled to special instruction, defendant
must show that “the standard instruction did not adequately cover
                                  2
the theory of defense”). But Bass’s theory of defense was that he
did not commit the crime. Evidence of his peacefulness supported
that theory of defense—as did other evidence—but peacefulness
was not an independent defense. The jury concluded Bass was
guilty after the court correctly instructed jurors to consider all the
evidence, to decide for themselves what evidence was reliable, and
to convict only if guilt was proven beyond a reasonable doubt. The
court’s instructions adequately covered Bass’s theory of defense.
See Branch v. State, 685 So. 2d 1250, 1253 (Fla. 1996) (“The jury
in the present case was fully instructed on reasonable doubt and
burden of proof and there is no reason to believe that these
instructions were insufficient to guide the jury in its
deliberations.”). We therefore find no abuse of discretion. 1

                                 II.

     Next, Bass argues that the trial court should have allowed
him to interview a juror before denying his motion for new trial.
After trial, the court and the parties received correspondence from
a juror expressing concerns about how the verdict was reached and
doubts as to its correctness. Specifically, the juror indicated
concern that the foreman had not presented certain questions to
the court, and the juror wrote she “was very rushed” and felt
pressured to go along with the majority’s decision. Bass moved for
a new trial and sought to interview the juror. Bass argued, among
other things, that the interview was necessary to determine


    1  Bass cites Illinois’s standard instructions to show that some
other jurisdictions have standard instructions telling jurors they
may consider a defendant’s reputation for peacefulness. The State
cites Fenelon v. State, 594 So. 2d 292 (Fla. 1992), to argue that the
requested instruction would constitute an improper comment on
the weight of the evidence. Although it is true that “[a] judge may
not sum up the evidence or comment to the jury upon the weight
of the evidence,” § 90.106, Fla. Stat., and that “jury instructions
that amount[] to judicial comment on the evidence . . . are
impermissible,” Brown v. State, 11 So. 3d 428, 434 (Fla. 2d DCA
2009), we need not decide whether the requested instruction would
have been impermissible. Either way, it was no abuse of discretion
to deny the request.

                                  3
whether juror misconduct had occurred, whether the juror had
been denied the ability to ask questions of the court, and whether
the verdict had been decided by lot.

     A trial court, in its discretion, may enter an order permitting
parties to interview a juror and must do so if it finds a reason to
believe a verdict may be subject to challenge. Fla. R. Crim. P.
3.575. However, “Florida’s Evidence Code . . . absolutely forbids
any judicial inquiry into emotions, mental processes, or mistaken
beliefs of jurors.” Baptist Hosp. of Miami, Inc. v. Maler, 579 So. 2d
97, 99 (Fla. 1991) (citation omitted); see also § 90.607(2)(b), Fla.
Stat. (2017). This includes inquiries into whether a juror “did not
assent to the verdict; that he misunderstood the instructions of the
Court[,] the statements of witnesses[,] or the pleadings in the case;
that he was unduly influenced by the statements or otherwise of
his fellow-jurors, or mistaken in his calculations or judgment, or
other matter resting alone in the juror’s breast.” Maler, 579 So. 2d
at 99.

     We review a trial court’s denial of a motion to interview jurors
for abuse of discretion, Anderson v. State, 18 So. 3d 501, 519 (Fla.
2009), and we find none here.

                                III.

     Bass next argues that the trial court erred by admitting a
photograph of Healey’s injuries that he contends was so gruesome
that the danger of unfair prejudice outweighed any probative
value. Bass argues this was particularly so because the photograph
was cumulative of another admitted photograph. Trial courts
should exclude photographs that are “so shocking in nature as to
defeat the value of their relevance” and distract the jury from “a
fair and unimpassioned consideration of the evidence.” Czubak v.
State, 570 So. 2d 925, 928 (Fla. 1990) (citations omitted). But “just
because a photograph is gruesome does not make the photograph
inadmissible.” Victorino v. State, 127 So. 3d 478, 499 (Fla. 2013)
(quoting Hampton v. State, 103 So. 3d 98, 115 (Fla. 2012)). Trial
courts have broad discretion in determining whether a photograph
should come in, Brooks v. State, 787 So. 2d 765, 781 (Fla. 2001),
and in this case, we find the court acted within that broad
discretion.

                                 4
                                 IV.

     Fourth, Bass contends that the trial court was obligated to
approve his proposed statement of the evidence. After this appeal
began, Bass’s appellate counsel heard that sometime during
trial—either in front of the jury or in front of the judge during
sentencing—the prosecutor called the battery at issue “just
another notch in [Bass’s] belt.” Bass acknowledges this comment
is not found in the record, and he asked this court to relinquish
jurisdiction so he could attempt to supplement or correct the lower-
court’s record. We did relinquish jurisdiction, and Bass returned
to the trial court, where he filed a statement of the evidence
pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). He
included an affidavit from a lawyer who had been there and who
swore that—to the best of his memory—that the prosecutor did
indeed say “just another notch in [Bass’s] belt,” either during
closing arguments or during sentencing. The State did not respond
to the statement of evidence or offer any contradictory evidence.

     In Bass’s view, the State’s inability to contradict the affidavit
obligated the court to accept it as true: “In light of the fact that
Appellant Bass submitted an unrefuted affidavit from an officer of
the court confirming that the statement in question was made by
the prosecutor, the trial court should have approved the statement
of evidence.” Init. Br. at 29. But Bass cites no authority to support
that assertion, and we cannot accept the argument that a litigant
can unilaterally alter the official record of what transpired below
by doing nothing beyond offering a statement the other side cannot
refute. “If a trial judge is able to approve a unilateral statement,
the judge should do so, but the rule does not require it.” Rivera v.
Rivera, 863 So. 2d 489, 490 (Fla. 4th DCA 2004). Trial judges and
opposing counsel may or may not remember every word said at
trial, but when faced with a proposed statement of evidence that
they cannot say accurately reflects what really happened, they are
not obligated to accept it. Here, the trial judge concluded he could
not “in good conscience find the statement was made.” Under these
circumstances, the judge did the right thing by refusing to vouch
for a statement he could not confirm was ever uttered.




                                  5
                                  V.

     Bass’s fifth argument is that the trial court should have
granted a judgment of acquittal on the resisting-an-officer charge.
We review the trial court’s decision de novo. Pagan v. State, 830
So. 2d 792, 803 (Fla. 2002).

      Section 843.02 provides that it is a crime to “resist, obstruct,
or oppose any officer . . . in the lawful execution of any legal duty.”
To support a conviction under this statute, the State must prove:
“(1) the officer was engaged in the lawful execution of a legal duty;
and (2) the defendant’s action, by his words, conduct, or a
combination thereof, constituted obstruction or resistance of that
lawful duty.” C.E.L. v. State, 24 So. 3d 1181, 1185-86 (Fla. 2009).

     Bass does not dispute the fact that the officer was engaged in
the “lawful execution of a legal duty” when Bass gave a false
identity. Nor does Bass contend on appeal that his giving a false
identity did not constitute obstruction. Instead, Bass’s sole
argument is that the trial court should have granted an acquittal
on this count because Bass was not detained when he lied to the
officer. He relies on Sauz v. State, in which the Second District held
that because the defendant was not lawfully detained, “his
provision of the false name and date of birth did not constitute the
crime of resisting an officer without violence.” 27 So. 3d 226, 228
(Fla. 2d DCA 2010).

     Bass correctly explains that the Second District has added an
additional requirement for any section 843.02 charge, at least
when the charge is based on giving an officer a false name. In those
situations, the Second District has held there can be no conviction
unless the defendant was legally detained when he gave the false
name. See id.; see also St. James v. State, 903 So. 2d 1003 (Fla. 2d
DCA 2005); D.G. v. State, 661 So. 2d 75 (Fla. 2d DCA 1995). But
we cannot follow Sauz because we cannot establish an extratextual
element the Legislature omitted. 2


    2In its supplemental brief, the State agreed with Bass that
Sauz was correctly decided. (The State argues it should win
nonetheless, arguing Bass was detained.) We of course must decide

                                  6
     In a separate statute, enacted in 1999, the Legislature did
impose such a detention requirement for the crime of giving false
identification to a law enforcement officer. See § 901.36(1), Fla.
Stat. (2016) (specifically limiting applicability to when “a
person . . . has been arrested or lawfully detained”). The
Legislature could have added this language to section 843.02 as
well, but it did not. Instead, section 843.02 applies “to any situation
where a person willfully interferes with the lawful activities of the
police.” N.H. v. State, 890 So. 2d 514, 516 (Fla. 3d DCA 2005)
(emphasis added) (holding that “[o]n its face, [section 843.02] is
unambiguous”). We therefore hold that whether Bass was detained
at the time of his lie does not matter for purposes of his motion for
judgment of acquittal.

     This court’s decision in M.M. v. State, which cites Sauz, does
not require otherwise; it did not adopt Sauz’s rule. See 51 So. 3d
614 (Fla 1st DCA 2011). In M.M., this court held that a person not
lawfully detained is “free to refuse to identify himself.” Id. at 616.
But we said nothing about the situation here, where—rather than
remaining silent—the defendant elected to provide a false identity.
It would be a mistake to treat a defendant who maintains his
silence the same as one who affirmatively lies to officers
investigating a crime. And although M.M. noted in dicta that a
person’s words alone “can rarely” support an obstruction charge
absent detention, id., rarely is not never. And none of the cases
cited to support that dicta involved a defendant who did what Bass
did: lie to an investigating officer. See, e.g., S.G.K. v. State, 657 So.
2d 1246, 1248 (Fla. 1st DCA 1995) (flight alone was not
obstruction); R.S. v. State, 531 So. 2d 1026 (Fla. 1st DCA 1988) (no
obstruction where individual who was not detained refused to
answer questions and encouraged others to refuse). M.M. and the
cases it relied on held only that an individual who is not detained
may refuse to cooperate with police; those cases do not hold that a
person willfully misleading an investigating officer cannot violate
section 843.02 unless he happens to be detained.



ourselves whether to follow Sauz. See Markham v. N. Florida
Evaluation & Treatment Ctr., 248 So. 3d 1274 (Fla. 1st DCA 2018)
(noting that courts are not bound by appellees’ concessions).

                                   7
     This court’s opinion in Jackson v. State does not control here
either. See 1 So. 3d 273 (Fla. 1st DCA 2009). In Jackson, this court
said that “[t]he giving of a false name is not a crime unless it occurs
during a lawful detention or arrest.” Id. at 277. But we said that
in the context of section 901.36(1), Florida Statutes, which we cited
along with a case applying it. That statute’s plain text, again,
limits application to when “a person . . . has been arrested or
lawfully detained by a law enforcement officer.” The plain text of
section 843.02 does not.

     We are not persuaded by the dissent’s contrary take on this
issue. In the dissent’s view, the officer could not have been acting
in the “lawful execution of a legal duty” unless he was detaining
Bass. The dissent contends decisions like Sauz do not really add
an extratextual detention element but merely “recogniz[e] that the
‘lawful detention’ of a suspect fulfills the statutory requirement [of]
‘lawful execution of a legal duty,’” at least where the case turns on
false information. Dissent at 15. Critically, Bass himself never
makes this argument, and he has never argued that the officers
were not operating in the lawful execution of their legal duty. We
cannot reverse a judgment based on an argument the appellant
never made. See Williams v. State, 845 So. 2d 987, 989 (Fla. 1st
DCA 2003) (“Because appellant failed to raise these issues in the
initial brief, we cannot consider them.”). But regardless, we do not
see how Sauz could stand for the proposition that detention is
merely a means of satisfying the legal-duty requirement when the
court in Sauz found the legal-duty element satisfied and the
separate (extratextual) detention element not satisfied. 27 So. 3d
at 228 (acknowledging that the detective “was engaged in the
lawful execution of a legal duty because she was investigating the
lewd battery” but nonetheless reversing because “while Sauz
provided patently false information to [the detective], he did so at
a time when he was not lawfully detained”). The “lawful duty” the
statute requires and the “lawful detention” Sauz (but not the
statute) requires are not always one in the same.

     Moreover, detaining someone is not the only way an officer
can lawfully exercise a duty. The dissent cites cases holding, for
example, that an officer is executing a legal duty if he asks “for
assistance with an ongoing emergency.” Dissent at 12-13 (quoting
D.G. v. State, 661 So. 2d 75, 76 (Fla. 2d DCA 1995)); accord S.G. v.

                                  8
State, 252 So. 3d 323, 325 (Fla. 1st DCA 2018) (“Legal duties
include things like serving process, legally detaining a person, or
asking for assistance in an emergency situation.”); Brandful v.
State, 858 So. 2d 367, 370 (Fla. 3d DCA 2003) (“[I]nvestigating a
complaint constitutes the lawful execution of a legal duty.”);
Francis v. State, 736 So. 2d 97, 99 n.1 (Fla. 4th DCA 1999) (“It is
undisputed that the state satisfied the first prong of this test in
that [the officer] was investigating a 911 telephone call when the
alleged obstruction occurred.”); V.L. v. State, 790 So. 2d 1140, 1142
(Fla. 5th DCA 2001) (“The investigation of a crime by a police
officer is an execution of a lawful duty”). 3 The dissent does not
explain, though, what comes of the detention requirement if the
officer is executing some other legal duty—a duty not involving
detention. If the point is that a defendant must be detained to
satisfy the statutory legal-duty prong (at least in false-name
cases), that sounds a lot like saying detention is the only means of
satisfying the statutory legal-duty prong. 4 The statutory language
(and cases applying the statute) do not support that conclusion.

     Finally, if the detention requirement were merely a
restatement of the legal-duty requirement, we do not understand
why it would only apply to false-name cases. Violations of section


    3 There is perhaps some disagreement among the cases about
what all constitutes execution of a legal duty. Compare, e.g., Davis
v. State, 973 So. 2d 1277, 1279 (Fla. 2d DCA 2008) (rejecting
argument that officers responding to a complaint were engaged in
the lawful execution of a legal duty where there was no evidence
the officers had reasonable suspicion that a particular individual
had committed a crime) with Suaz, 27 So. 3d at 228 (officer “was
engaged in the lawful execution of a legal duty because she was
investigating the lewd battery”). But because Bass has never
argued that the officers were not executing a legal duty, we need
not resolve that disagreement here.
    4  It is also noteworthy that section 843.02 prohibits
obstruction not only of police officers, but also many others,
including “member[s] of the Florida Commission on Offender
Review,” “any administrative aide or supervisor employed by the
commission,” and any “county probation officer.”

                                 9
843.02 come in many forms, and not all involve lying to officers
about names. The legal-duty requirement applies in every section
843.02 case. See C.E.L., 24 So. 3d at 1185-86 (noting required
element is that “the officer was engaged in the lawful execution of
a legal duty”). Yet the judicially created detention requirement
seems to be limited to false-name cases. This is another indication
that the rule—created by courts—strays from the statutory text.

     Sections 843.02 and 901.36(1) establish different crimes with
different elements. The former requires obstruction; the latter
requires detention. Bass was charged with the former and not the
latter. Thus the State had to prove obstruction but not detention.
We therefore need not address the State’s argument that Bass was,
in fact, detained—it does not matter here. Because Bass’s only
argument here was that the State failed to prove detention, we
affirm.

                                VI.

      Last, Bass argues that there were errors in his “sentencing
paperwork” below. He contends that “victim data sheets”
incorrectly state that he was convicted of three counts of
aggravated battery, even though he was convicted of only one
count of felony battery. He also contends that the paperwork
wrongly lists as victims two men other than Healey. In the trial
court, Bass filed a motion to correct sentencing error pursuant to
Florida Rule of Criminal Procedure 3.800(b)(2). The court denied
it, concluding that “the motion fails to show the relief requested
relates to the legality of the sentences imposed.” The court also
noted that the because “victim data sheets are not orders entered
as the result of the Court’s sentencing process, the relief would be
better sought from the agency responsible for their preparation.”
Indeed, Bass has cited no authority for the proposition that we are
obligated (or even permitted) to direct the trial court to modify
paperwork it did not create. The record does not show why this
paperwork was created or who prepared it. But to the extent Bass
is aggrieved by errors in papers prepared by someone other than
the trial court, he will have to seek relief elsewhere.

    AFFIRMED.



                                10
RAY and WINSOR, JJ., concur; MAKAR, J., concurs in part and
dissents in part with opinion.
                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

MAKAR, J., concurring in part and dissenting in part.

     In Florida, when is giving a false name to a police officer a
crime? In 1999, the legislature enacted a “false name” law that
specifically addressed the matter, section 901.36, Florida Statutes,
which says: “It is unlawful for a person who has been arrested or
lawfully detained by a law enforcement officer to give a false name,
or otherwise falsely identify himself or herself in any way, to the
law enforcement officer or any county jail personnel.” § 901.36(1),
Fla. Stat. (2018) (emphasis added); Laws of Florida, Chapter 99-
169, § 2 (violations are a first degree misdemeanor). As
emphasized, an arrest or lawful detention is a specific element of
the offense, thereby limiting the scope of the statute’s application.
See Dubois v. State, 932 So. 2d 298, 299 (Fla. 2d DCA 2006) (“To
constitute a crime, the giving of the false name must occur during
an arrest or lawful detention.”) (citing § 901.36, Fla. Stat. (2004));
see also Jackson v. State, 1 So. 3d 273, 277 (Fla. 1st DCA 2009)
(same) (concluding that because defendant “gave the false names
before he was detained, it was improper to conclude that the arrest
for the offense of giving a false name was lawful”).

    Prior to and since 1999, giving a false name could also be
deemed illegal under another statute, section 843.02, Florida
Statutes, 1 which criminalizes resisting, obstructing, or opposing

    1   Section 843.02, in relevant part, states:

    Whoever shall resist, obstruct, or oppose any officer . . .
    or other person legally authorized to execute process in
    the execution of legal process or in the lawful execution of
    any legal duty, without offering or doing violence to the

                                  11
an officer without violence. This general obstruction statute
requires that: “(1) the officer was engaged in the lawful execution
of a legal duty; and (2) the action by the defendant constituted
obstruction or resistance of that lawful duty.” S.G.K. v. State, 657
So. 2d 1246, 1247 (Fla. 1st DCA 1995) (emphasis added). As
emphasized, section 843.02 criminalizes conduct that obstructs or
resists an officer in the lawful execution of a legal duty. For this
reason, courts make clear that “it is important to distinguish
between a police officer ‘in the lawful execution of any legal duty’
and a police officer who is merely on the job.” D.G. v. State, 661 So.
2d 75, 76 (Fla. 2d DCA 1995). Absent an identifiable legal duty, its
lawful execution by an officer, and obstruction/resistance of that
duty, 2 section 843.02 is not violated. Id. (noting that a legal duty


    person of the officer, shall be guilty of a misdemeanor of
    the first degree, punishable as provided in s. 775.082 or
    s. 775.083.

§ 843.02, Fla. Stat. (2017). Since 1999, false name cases have been
reported under both statutes.

    2   As an example, giving a false name and then recanting
before an officer has engaged in substantial efforts at identification
of a detainee does not amount to obstruction sufficient to support
a violation. Compare L.T. v. State, 69 So. 3d 1014, 1016 (Fla. 3d
DCA 2011) (“[O]fficers knew [minor’s] identity almost immediately
upon encountering him and the arresting officer testified that the
false name given by [the minor] impeded his investigation for
about a second.”), and C.T. v. State, 481 So. 2d 9, 10 (Fla. 1st DCA
1985) (No “real harm was done” where juvenile gave false
information that was written on a traffic citation and “run through
the police computer” where “the juvenile promptly and voluntarily
recanted the false information and thus did not interfere with the
officer’s performance of his duties other than by causing a
relatively insignificant loss of time.”), with Fripp v. State, 766 So.
2d 252, 254 (Fla. 4th DCA 2000) (upholding conviction where
defendant “twice gave a false name at the scene of the stop and did
not correct the falsehood until he was at the booking desk after he
was arrested and transported to the police station”).


                                 12
can arise where an officer is executing service of process on a
person, has legally detained a person, or has asked “for assistance
with an ongoing emergency that presents a serious threat of
imminent harm to person or property”).

     In this case, the State did not charge Bass with a false name
violation under section 901.36. Instead, it charged him under the
general obstruction statute, section 843.02, which the State says
was properly applied to Bass because he gave a false name while
he was lawfully detained that obstructed the officer’s investigation
at the crime scene. Bass, of course, disputes that he was lawfully
detained or that the officer was engaged in the exercise of a legal
duty, which is the only basis upon he and the State have disagreed
in this appeal.

     In its supplemental brief, 3 the State unequivocally says that
lawful detention is required in false name cases under section
843.02, as other district courts have held; it specifically “agrees
that the Second District Court of Appeal’s holding in Sauz v. State,
27 So. 3d 226 (Fla. 2d DCA 2010), that legal detention is required
for a person to be arrested for resisting without violence, is
correct.” Its supplemental reply brief concludes that the only
dispute is whether the record establishes that Bass was lawfully
detained based on a reasonable suspicion of criminal activity. Bass
too agrees that Sauz applies, and that lawful detention is required
when section 843.02 is applied in false name cases; he says,
however, that he was not lawfully detained when he gave the false


    3  The parties were “directed to file supplemental briefs
addressing the elements of the crime of Resisting Officer without
Violence, section 843.02, Florida Statutes (2012), and whether the
Second District Court of Appeal’s opinion in Sauz v. State, 27 So.
3d 226 (Fla. 2d DCA 2010), correctly decided that lawful detention
or arrest is a condition precedent to a violation of the statute when
the violation is based on giving a false name or false information.”
Their briefs were required to “address the distinction between the
elements the State would need to prove for the crimes of Resisting
Officer without Violence, section 843.02, and Giving False Name
or Identification to Law Enforcement Officer, section 901.36(1), as
applied to the facts of this case.”
                                 13
name. Neither Bass nor the State concede that Sauz adds an
“additional requirement” to the statute.

     The reason Bass and the State agree that lawful detention is
required in this case is that Florida appellate courts have
uniformly required that the defendant be lawfully detained (or
arrested) at the time false information is given (or name refused to
be given) for an unlawful obstruction to be actionable under section
843.02. M.M. v. State, 51 So. 3d 614, 616 (Fla. 1st DCA 2011); Sauz,
27 So. 3d at 228; D.G., 661 So. 2d at 76; see also D.L. v. State, 87
So. 3d 824, 825 (Fla. 2d DCA 2012); St. James v. State, 903 So. 2d
1003, 1004 (Fla. 2d DCA 2005); Rodriguez v. State, 29 So. 3d 310,
312-13 (Fla. 3d DCA 2009).

      After all, this class of cases involves investigatory detentions.
Section 843.02 requires that a defendant’s conduct have obstructed
the officer in the “lawful execution of any legal duty,” which in the
context of an investigation is the lawful detention of an individual
for which a well-founded suspicion of criminal activity exists. See
Harris v. State, 647 So. 2d 206, 208 (Fla. 1st DCA 1994) (“[T]he
crime of resisting an officer without violence did not take place
if either [the officer] lacked an articulable well founded suspicion
of criminal activity to justify the attempt to detain [the
defendant] or if [the defendant] had no reason to believe that he
was being detained.”). The element of “lawful execution of a legal
duty” is described as follows:

    In resisting cases involving an investigatory detention,
    the state must prove that the officer had a reasonable
    suspicion of criminal activity. . . . As the Third District
    has stated: “The element of lawful execution of a legal duty
    is satisfied if an officer has either a founded suspicion to
    stop the person or probable cause to make a warrantless
    arrest. Otherwise, the individual has a right to ignore the
    police and go about his business.” O.B. v. State, 36 So. 3d
    784, 786 (Fla. 3d DCA 2010) (citations and internal
    quotations omitted).

A.R. v. State, 127 So. 3d 650, 653-54 (Fla. 4th DCA 2013) (emphasis
added). The italicized language punctuates that a lawful detention
is merely the by-product of the proper execution of the legal duty

                                  14
to detain someone reasonably suspected of having committed a
crime. If a detainee gives a false name while lawfully detained, and
that action amounts to “resisting, obstructing, or opposing” that
lawful duty, a violation is established.

     Viewed in this way, courts are not interlineating a “lawful
detention” requirement into the statutory language of section
843.02 in false information cases; rather, they are recognizing that
the “lawful detention” of a suspect fulfills the statutory
requirement that an officer be engaged in the “lawful execution of
a legal duty” at the time false information is given. “Lawful
detention” thereby satisfies the first element (i.e., that the “officer
was engaged in the lawful execution of a legal duty”). The second
element is satisfied if the giving of the false name to the officer
“constituted obstruction or resistance of that lawful duty.” As such,
section 843.02 is not violated simply because “obstruction or
resistance” of police activity occurred; it must occur via conduct
that interfered with the “lawful execution of a legal duty.”
Obstruction is a necessary element of a section 843.02 violation;
but so is proof of the lawful execution of a legal duty, such as a
lawful detention (or arrest). 4

      Lawful detention in false name cases under section 843.02
serves the purpose of drawing a line between situations in which
an officer is engaged in the “lawful execution of a legal duty” and
those in which the officer is customarily engaged from day-to-day
(i.e., “merely on the job”). Criminalizing the giving of a false name
when a person is lawfully detained makes sense, but criminalizing
such conduct in the context of police-citizen investigatory
encounters generally—without an arrest or lawful detention 5–goes

    4  In contrast, by enacting section 901.36(1), the Legislature
created a new offense, one that criminalizes giving a false name
when arrested or lawfully detained, without the need to prove that
the giving of a false name “constituted obstruction or resistance”
of the arrest or detention.

    5  The Florida Supreme Court identified the three levels of
police-citizen encounters as follows:


                                  15
beyond the legislative intent of section 843.02, which says the
conduct must obstruct the execution of a legal duty.

     The view that section 843.02 criminalizes the giving of a false
name (or refusal to give a name), even when not lawfully detained
or arrested, opens up vast vistas of criminal liability for what
historically has been deemed non-criminal conduct. 6 Section
843.02 does not give police officers the authority to arrest citizens
who refuse to cooperate with—or choose to give false or incorrect


    The first level is considered a consensual encounter and
    involves only minimal police contact. During a
    consensual encounter a citizen may either voluntarily
    comply with a police officer’s requests or choose to ignore
    them. Because the citizen is free to leave during a
    consensual encounter, constitutional safeguards are not
    invoked. . . . The second level of police-citizen encounters
    involves an investigatory stop . . . . At this level, a police
    officer may reasonably detain a citizen temporarily if the
    officer has a reasonable suspicion that a person has
    committed, is committing, or is about to commit a crime.
    . . . In order not to violate a citizen’s Fourth Amendment
    rights, an investigatory stop requires a well-founded,
    articulable suspicion of criminal activity. Mere suspicion
    is not enough to support a stop. . . . [T]he third level of
    police-citizen encounters involves an arrest which must
    be supported by probable cause that a crime has been or
    is being committed.

Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (citations omitted).

    6 Citizens generally have the right to not interact with police
unless they are lawfully compelled to do so. Illinois v. Wardlow,
528 U.S. 119, 125 (2000) (When “an officer, without reasonable
suspicion or probable cause, approaches an individual, the
individual has a right to ignore the police and go about his
business.”) (characterizing its holding in Florida v. Royer, 460 U.S.
491 (1983)); see also Florida v. Bostick, 501 U.S. 429, 437 (1991)
(“We have consistently held that a refusal to cooperate, without
more, does not furnish the minimal level of objective justification
needed for a detention or seizure.”).
                                 16
information during—the officer’s investigatory efforts unless the
officers are lawfully executing a legal duty, such as a lawful
detention of a suspect for whom reasonable suspicion exists. On
this point, the Second District said twenty years ago:

    [Florida cases] seem to support the following general
    proposition: If a police officer is not engaged in executing
    process on a person, is not legally detaining that person,
    or has not asked the person for assistance with an
    ongoing emergency that presents a serious threat of
    imminent harm to person or property, the person’s words
    alone can rarely, if ever, rise to the level of an obstruction.
    Thus, obstructive conduct rather than offensive words
    are normally required to support a conviction under this
    statute.

D.G., 661 So. 2d at 76. Cases since that time have followed this
viewpoint. See, e.g., M.M., 51 So. 3d at 616; Sanchez v. State, 89
So. 3d 912, 915 (Fla. 2d DCA 2012); State v. Legnosky, 27 So. 3d
794, 797-98 (Fla. 2d DCA 2010); State v. Dennis, 684 So. 2d 848,
849 (Fla. 3d DCA 1996); W.W. v. State, 993 So. 2d 1182, 1184 (Fla.
4th DCA 2008); Jay v. State, 731 So. 2d 774, 775 (Fla. 4th DCA
1999).

     And section 843.02 is symmetrical: it applies whether a false
name is given, or no name is given, when a person is legally
detained or arrested. See M.M., 51 So. 3d at 616 (holding that a
juvenile defendant’s failure to provide police with his identity was
not obstruction); Sanchez, 89 So. 3d at 915 (holding that the
defendant’s act of giving the police false information without more
did not support conviction); D.L., 87 So. 3d at 826 (holding that a
juvenile defendant’s act of giving a false name to police did not
constitute obstruction); St. James, 903 So. 2d at 1004 (holding that
defendant’s denial of his identity to police was insufficient to
support a charge of obstruction).

     Dispensing with the “lawful detention” requirement in false
information cases under section 843.02 creates direct conflict with
Sauz and other cases that trial courts have applied for decades. It
also creates conflict with this Court’s decision in M.M. v. State,
which held in a section 843.02 case as follows:

                                  17
    “If a police officer is not engaged in executing process on
    a person, is not legally detaining that person, or has not
    asked the person for assistance with an ongoing
    emergency that presents a serious threat of imminent
    harm to person or property, the person’s words alone can
    rarely . . . rise to the level of obstruction.” D.G. v.
    State, 661 So. 2d 75, 76 (Fla. 2d DCA 1995). Providing
    false information to a police officer during a valid arrest
    or Terry stop can rise to that level. See Sauz v. State, 27
    So. 3d 226, 227 (Fla. 2d DCA 2010). But failing to give
    one’s correct identity is not a crime unless the person is
    legally detained.

51 So. 3d at 616 (footnote omitted) (emphasis added). Because the
juvenile in M.M. “was not under arrest or otherwise lawfully
detained when he declined to give [the officer] his name or provide
identification. . . . [he] did not obstruct the officer in executing a
legal duty.” Id. (emphasis added). These italicized statements—
that lawful detention (or arrest) meet the statutory element of a
lawfully executed legal duty—conflict with the majority’s
elimination of lawful detention in investigatory detention cases.
The upshot is an affirmance of Bass’s obstruction conviction
without identifying what legal duty the officer was lawfully
executing when Bass provided a false name. What recognized legal
duty could the officer have been lawfully executing in this case
other than an investigatory detention of someone suspected of a
crime?

     Turning to this case, the briefings and arguments make clear
that the parties have argued only about whether Bass gave a false
name while lawfully detained; they both agree that lawful
detention is required in an investigatory detention case, as their
supplemental briefs unequivocally confirm. The only question is
whether Bass was lawfully detained at the time he gave the officer
a false name.

     As to this question, the evidence shows that he was not. Two
officers testified at trial. Sgt. Dunsford, who responded to the 911
call on New Year’s Eve 2012, arrived at the scene, which was
chaotic due to uncertainty about what happened and the presence

                                 18
of several injured persons. All Sgt. Dunsford knew was that a call
had been received that “somebody had gotten hit and fell into a
[bon]fire.” He approached and talked with Bass and another man,
neither of whom the officer knew. Bass told the officer an
altercation had occurred but he didn’t know what had happened.
The officer continued to make “idle chatter,” keeping an eye on
both men, urging them to walk to where others had gathered
(“Hey, let’s walk up to the hill where everybody else was
congregating at.”). At that point, Sgt. Dunsford heard “some
yelling and cussing up the hill,” and determined it was not a
threat. During that time, Bass went to his nearby truck and
removed his red shirt and hat. When he saw Bass leaning into the
truck, Sgt. Dunsford told Bass to step away from it and to come to
the officer as a safety precaution. Bass did so and told the officer
he could search his truck, which Sgt. Dunsford did, finding no
weapons or other contraband. As other officers arrived, Sgt.
Dunsford left to assist elsewhere at the scene, having no contact
with Bass thereafter. Of note, Sgt. Dunsford never asked for or was
given a name by Bass (“A: . . . I don’t believe I asked him what his
name was at the time. Q: And you don’t recall him ever giving you
one. A: No, Sir.”).

     Another officer on the scene, Deputy Ross, immediately
followed up on Sgt. Dunsford’s questioning of Bass. He also
continued the search of Bass’s truck during which Bass said his
name was “Dillon Barns.” Deputy Ross then leaned into the
driver’s side of Bass’s truck, finding a “lanyard with a plastic case
that would commonly have identification in it, and right on the
front identification was a picture ID, and it said Devin Bass, and I
noticed that individual looked strikingly similar to the person who
just told me he was Dillon Barns. . . . At that point I realized that
this person was probably not telling me the truth.” The discovery
of the identification card prompted him to challenge Bass, who
insisted the truck and identification belonged to a friend. Bass
gave a birthdate that was a year different from his friend’s
birthday, which prompted Deputy Ross to detain him and place
him in his patrol car at that point (“Q: Do you detain him at that
point? A: I did.”). Deputy Ross soon confirmed Bass’s identity in a
stratagem by turning to Bass and saying “Hey, Devin,” causing
Bass to respond affirmatively (“I kind of told him, I said, I got you,


                                 19
and he said, whatever, man.”). Bass soon admitted to his true
name. 7

     These facts do not establish a reasonable suspicion that Bass
had committed a crime (or was about to commit a crime) at the
time he said he was “Dillon Barns.” Officers had a hunch about
Bass as a possible suspect at the time when the false name was
given, but more is necessary to establish the basis for a lawful
detention. At best, Bass took off his hat and shirt and placed them
in the truck, which may have been suspicious, but not a basis to
detain him. And to the extent he was detained as he rummaged in
his truck, the detention was based on a safety concern that was
resolved straightaway. See Terry v. Ohio, 392 U.S. 1 (1968). When
Sgt. Dunsford told Bass to step back from his truck, Bass did so
while volunteering that the officer conduct a search of his truck,
which yielded no weapon or contraband. Whatever safety concern
that existed was quickly dispelled. It wasn’t until after Deputy
Ross found the lanyard and questioned Bass about it that he
detained Bass and put him in his patrol car; Bass had already said
he was “Dillon Barns.” The evidence thereby fails to show a
detention–let alone a lawful one–at the time Bass gave a false
name, or a basis for Bass believing he was detained. S.G.K., 657
So. 2d at 1248 (“Even if the officer had articulated a well-founded
suspicion, the State failed to show appellant had any reason to
believe he was being detained.”). Notably, Deputy Ross had
evidence of Bass’s real name almost simultaneously with the
falsehood; he clearly was not duped by Bass’s lame attempt at
subterfuge. And it was not until later that evidence developed
supporting Bass’s arrest. See St. James, 903 So. 2d at 1004 (Even
though officers had probable cause to arrest defendant, he was “not
legally detained when he denied his identity.”). At best, the facts
demonstrate a police investigation and “citizen encounter
involving a verbally uncooperative citizen,” which is insufficient to
support a violation of section 843.02. D.G., 661 So. 2d at 76.



    7 The State relies on stricken trial testimony in claiming that
Bass had been pointed out to Sgt. Dunsford and Deputy Ross as a
possible suspect. Bass’s counsel twice obtained favorable rulings
on his objections that this testimony was inadmissible.

                                 20
     Finally, Bass and the State presented a limited issue in this
appeal as to section 843.02’s application in light of Sauz, whose
holding and analytical underpinnings support reversal. The panel,
however, expanded the scope of appellate review via post-
argument supplement briefing. In doing so, the legal landscape
was broadened, resulting in the majority deciding this case on a
legal basis that neither party raised in the trial court or on appeal.
Indeed, the majority’s newly-raised and novel legal theory is one
the State did not make and affirmatively repudiates. Bass and the
State both say that Sauz and related cases—and presumably their
reasoning—apply in this case. It is anomalous to affirm on a newly-
fashioned legal theory that no party raised or supports, and ignore
the reasoning underlying cases such as Sauz that matters most in
interpreting section 843.02.

     For these reasons, Bass’s conviction for a violation of section
843.02, Florida Statutes, should be reversed; as to all other issues,
I concur in affirmance.
                  _____________________________

Michael Ufferman of Michael Ufferman Law Firm, P.A.,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Donna Gerace, Kaitlin
Weiss, and Virginia Harris, Assistant Attorneys General,
Tallahassee, for Appellee.




                                 21
