                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

DAVID LEE BROWN,                       NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D16-1559

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed June 1, 2017.

An appeal from the Circuit Court for Bay County.
Brantley S. Clark, Judge.

Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney
General, Tallahassee, for Appellee.



WOLF, J.

      Appellant challenges the trial court’s order revoking his probation for two

violations: committing the new law violation of failure to register as a sex offender

by failing to register a cell phone number, and using intoxicants to excess.

Appellant raises several arguments, but we find only two merit discussion: (1)

whether the State presented sufficient evidence that appellant used the cell phone
to the extent that he was required to register it; and (2) whether the probation

officer’s testimony that appellant was intoxicated during a visit was sufficient to

show that he used intoxicants to excess. We find there was sufficient evidence on

both counts and affirm.

                                        Facts

       In November 2014, appellant pled no contest to the offense of failure to

register as a sex offender, and the court sentenced him to 60 months’ probation. In

February 2016, the State filed an affidavit of violation of probation alleging that

appellant both committed the new law violation of failure to register as a sex

offender and violated the probation condition that he “not use intoxicants to

excess.”

       At a hearing, appellant’s probation officer testified that she and a United

States marshal conducted a drop-in visit on appellant. The probation officer

testified that upon arrival, she saw a white cell phone sitting next to appellant. She

“asked him could I see his cell phone, and he handed me that” white phone.

Appellant said “the phone belonged to his wife and he did not put it in his name

because then he would have to register it.” The U.S. marshal similarly testified that

appellant said “the phone was in his wife’s name, and that they did that

purposefully, because if they left it in his wife’s name he would not have to

register it.”

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      Additionally, appellant’s probation officer testified that appellant seemed

intoxicated during the encounter. When she asked him to produce his

identification, he handed her his credit card. She testified that “[h]is eyes were

glassed over and he was leaning back and forth. He said he had just drunk a couple

of beers.” She stated there was a beer sitting on the ground right next to appellant.

There was also catnip on the couch, and someone had used the cell phone to

conduct a search on the effects of smoking catnip.

      Appellant’s wife testified that she had two phones, one of which was the

number that appellant had registered as belonging to him and the other she used for

herself. She testified that on the day in question, her phone was dead, so she left it

on the charger and took appellant’s phone. On cross-examination, she stated that

although she usually left appellant with the phone that was registered as belonging

to him, sometimes they would swap and he would use her phone. She testified that

appellant would text and call his friends on her phone.

      Appellant testified the cell phone had been in his hand when he answered the

door because he had been playing a game on it, and the probation officer

immediately asked for it. Appellant testified he told the officer and the marshal that

the phone belonged to his wife, and he had been drinking and did not understand

their questions. When asked if it was “unusual” for him to use his wife’s phone, he

testified that he “play[ed] the games all the time” on it. He further testified that

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when he was at home, his wife would leave the phone so that she could call him

and wake him up for work. He stated that “sometimes” he would take the phone to

work with him so that he and his wife could call each other.

      Appellant conceded that although he claimed the phone found in his

possession belonged to his wife, her name was listed in the phone’s contacts. The

number that was listed as belonging to her was the number that appellant had

registered as his own phone number.

      The court found that appellant violated the terms of his probation both by

committing the new law violation of failure to register as a sex offender and by

using intoxicants to excess. The court revoked appellant’s probation and sentenced

him to 60 months in prison.

                                      Analysis

      “‘To establish a violation of probation, the prosecution must prove by a

preponderance of the evidence that a probationer willfully violated a substantial

condition of probation.’” White v. State, 76 So. 3d 410, 411 (Fla. 1st DCA 2012)

(quoting Van Wagner v. State, 677 So. 2d 314, 316 (Fla. 1st DCA 1996)). Where

the State alleges that the probationer violated the terms of probation by committing

a new law violation, “[p]roof sufficient to support a criminal conviction is not

required . . . . The state need only show by a preponderance of the evidence that the

defendant committed the offense charged.” Robinson v. State, 609 So. 2d 89, 90

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(Fla. 1st DCA 1992) (citing Griffin v. State, 603 So. 2d 48, 50 (Fla. 1st DCA

1992)).

      The trial court has “‘broad judicial discretion to determine whether the

conditions of the probation have been violated, and, therefore, whether the

revocation of probation is in order.’” Lawson v. State, 969 So. 2d 222, 229 (Fla.

2007) (quoting State ex rel. Roberts v. Cochran, 140 So. 2d 597, 599 (Fla. 1962)).

Thus, this court reviews the ultimate decision to revoke probation for an abuse of

discretion. Id. However, we first assess whether the factual findings supporting the

court’s decision are supported by competent, substantial evidence. Rodgers v.

State, 171 So. 3d 236, 238 (Fla. 1st DCA 2015); Savage v. State, 120 So. 3d 619,

621 (Fla. 2d DCA 2013).

                               1. Failure to Register

      Appellant argues that the trial court erred in finding he committed the new

law violation of failure to register as a sex offender because the State’s evidence

was insufficient to prove that the cellular phone in his possession during the drop-

in visit belonged to him or that he used the phone frequently enough to be required

to register that phone’s number under section 943.0435, Florida Statutes (2014).

      Section 943.0435(2)(b) requires the offender to register in the county in

which he was convicted within 48 hours after conviction and to provide “. . . all

home telephone numbers and cellular telephone numbers required to be provided

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pursuant to paragraph (4)(e).” (Emphasis added). Subsection (4)(e)(2) states that

the offender “shall register all changes to home telephone numbers and cellular

telephone numbers, including added and deleted numbers.” § 943.0435(4)(e)(2),

Fla. Stat. (emphasis added).

      Here, appellant argues the phone did not belong to him, and the State did not

show that he used the phone frequently enough to be required to register it under

section 943.0435. However, under the plain language of the statute, there is no

minimum-use or frequency threshold required to trigger the registration

requirement. The plain language of the statute states that all phone numbers must

be registered. § 943.0435(4)(e), Fla. Stat. Evidence that an offender had control

over a phone and used that phone can be sufficient to trigger the registration

requirement.

      Here, there was competent, substantial evidence to prove appellant had

control over and used the phone that he alleged was his wife’s. Appellant’s wife

testified that she would sometimes leave the unregistered phone with appellant for

him to use, and he used it to text and call his friends. Further, the probation officer

and the U.S. marshal testified that appellant admitted to willfully failing to register

the phone; he stated that he purposefully placed the phone in his wife’s name so

that he would not have to register it.




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      Appellant also conceded during his testimony that although he claimed the

phone belonged to his wife, her name was listed in the phone’s contacts, and the

number that was listed as belonging to her was the number that appellant had

registered as his own phone number. Thus, there was competent, substantial

evidence that appellant willfully and substantially violated the conditions of his

probation by intentionally failing to register the cellular telephone’s number in

violation of section 943.0435. Therefore, we affirm as to this issue.

                           2. Using Intoxicants to Excess

      Appellant argues the trial court erred in finding he violated the condition of

his probation that he “not use intoxicants to excess” because the State’s evidence

that he was intoxicated during a single occasion – the visit by his probation officer

– was insufficient to prove a violation of this condition. Appellant relies on Alston

v. State, 646 So. 2d 184 (Fla. 1994), to support this assertion. However, we find his

reliance is misplaced.

      In Alston, a community control officer observed Alston standing on a street

corner on a day he should have been working, so the officer required Alston to

report to the probation office where he was subjected to a drug test. He tested

positive for cocaine. The State alleged that he violated the condition of his

supervision that he “not use intoxicants to excess.” Id. However, the supreme court

held that the “use of cocaine, as evidenced by a single drug test, did not violate the

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community control condition requiring him to refrain from using intoxicants to

excess.” Id. at 185 (emphasis added). The court noted that “[t]he plain language of

the condition indicates that only ‘excessive’ use of an intoxicant is prohibited. We

do not believe a single positive drug test, without more, is sufficient evidence to

find a violation of this particular community control condition.” Id.

      Appellant asserts that here, as in Alston, evidence that he was intoxicated on

a single occasion was not sufficient evidence that he used intoxicants to excess. He

argues the testimony of the probation officer and the U.S. marshal that they saw

him with a beer and their testimony regarding his manner and physical state was

insufficient. While he concedes that beer may be an “intoxicant,” he argues the

excessive-use condition cannot be met without more.

      However, the State argues that Alston is distinguishable because the case at

hand did not involve a single positive drug test. Instead, the State argues this case

is more similar to Smith v. State, 100 So. 3d 253, 254 (Fla. 3d DCA 2012), in

which the Third District found evidence that officers observed Smith in an

intoxicated state on a single occasion was sufficient to support the trial court’s

finding that Smith violated the terms of his probation by using intoxicants to

excess.

      Smith argued evidence that he was intoxicated on that single instance was

insufficient to prove that he used intoxicants to excess, relying on Alston. Id.

                                          8
However, the Third District found Alston could not have intended to hold that a

single instance of intoxication could never prove use of intoxicants to excess

because Alston cited with approval Scott v. State, 524 So. 2d 1148 (Fla. 3d DCA

1988). In Scott, the Third District held evidence that a probationer was observed

staggering down the street in an intoxicated state on a single occasion was

sufficient to prove he used intoxicants to excess. Smith, 100 So. 3d at 254 (citing

Scott, 524 So. 2d 1148). The Smith court concluded that “[u]nder Alston,

therefore, even a single use of an intoxicant can qualify as excessive when there is

also evidence that the use caused the probationer to become drunk, inebriated, or

otherwise mentally or physically impaired.” Id.

      We agree with the Third District’s conclusion that Alston did not hold that

evidence of a single use of an intoxicant can never be enough to prove use of

intoxicants to excess. Rather, the Alston decision turned on the fact that a positive

drug test proves only use, not use to excess. Alston, 646 So. 2d at 185

(emphasizing that “only ‘excessive’ use of an intoxicant is prohibited”).

      In other words, in Alston, evidence was presented to show only that Alston

had ingested cocaine – not that he was physically or mentally impaired as a result.

Here, the probation officer’s observation of appellant in an intoxicated state was

sufficient to prove that he used intoxicants to excess. The officer testified that

appellant seemed intoxicated because when she asked for his identification, he

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handed her his credit card. She stated his eyes were glassed over, he was leaning

back and forth, and there was a beer next to him. Further, during the hearing,

appellant conceded that he told the officer and the marshal that he had been

drinking and did not understand their questions. This evidence was competent,

substantial evidence that supported the trial court’s finding that appellant used

intoxicants to excess.

      As such, we AFFIRM.

ROBERTS, C.J., and THOMAS, J., CONCUR.




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