       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                    CHRISTOPHER ANTONIO WARD,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-3620

                              [May 27, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Cheryl A. Caracuzzo, Judge; L.T. Case No. 50-2017-CF-
012066-AXXX-MB.

  Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Picard,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   In appellant’s appeal of his conviction for burglary of an occupied
dwelling and resisting an officer without violence, he contends the court
erred in refusing to give a special instruction on lost evidence. He claimed
that the video from an officer’s body-cam was not available, and therefore
he should have been entitled to an instruction that the jury could infer it
was against the State’s interest. Because the instruction was not an
accurate instruction on the law and the evidence was only potentially
exculpatory, the court did not err in denying the instruction. As to this
issue, and the remaining issues raised, we affirm.

   The State charged appellant with burglary of an occupied dwelling and
resisting an officer without violence.    The special jury instruction
requested by appellant would affect only the resisting without violence
charge. We summarize the facts with that in mind.

   The victim observed appellant attempting to enter her house through a
window. She called the police and an officer arrived within three minutes.
The officer went behind the house and observed appellant attempting to
exit the home through a window. The officer, dressed in her police
uniform, drew her weapon, told appellant not to move, and demanded to
see his hands. He complied at first but then pushed himself back into the
house and ran. The officer entered the residence through the back door
and chased appellant out of the front door.

   During the chase through the house, the officer turned on her body-
camera. As she chased him, she yelled for him to stop, but he did not stop
until he was apprehended in a neighboring yard by another officer. When
asked what happened to the video footage from her body-cam, the officer
testified that she had “some sort of technical glitch.”         On cross-
examination, she further stated that the video should be there, but it was
not. “Some technical issue happened where we were switching from one
body-camera to another . . . . Just never got it, I guess.” Later, she said
that everything was downloaded to a website, but she did not know what
happened to it.

   After the testimony, appellant requested an instruction on lost evidence
which would state, “If you find that the State or their agent has lost,
destroyed, caused to be destroyed, or allowed to be destroyed any evidence
whose contents or quality are in issue, you may infer that the true fact is
against the interest of the State.” He claimed that the failed body-cam
video qualified as lost evidence, and it was relevant as to the issue of
resisting arrest. Without it, the jury could not hear how loudly the officer
was yelling for appellant to stop. The video could also allow the defense to
impeach the accuracy of the officer’s memory.

   Appellant argued that the video was material based on this court’s
decision in State v. Davis, 14 So. 3d 1130 (Fla. 4th DCA 2009), in which
we held that where evidence has been lost or destroyed, the trial court may
consider giving an instruction to permit the jury to infer that the lost
evidence was exculpatory. The trial court disagreed that Davis applied and
denied the requested instruction.

   The jury found appellant guilty as charged and found that the dwelling
he entered was occupied. They also found that he resisted the officer
without violence. The court adjudicated him guilty of both charges and
sentenced him to thirty years in prison as a prison releasee reoffender and
a violent career criminal. He appeals.

    In this appeal, appellant challenges the court’s denial of his special jury
instruction. Denial of a request to give a special jury instruction is error
if three elements are met: “(1) the special instruction was supported by the

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evidence; (2) the standard instruction did not adequately cover the theory
of defense; and (3) the special instruction was a correct statement of the
law and not misleading or confusing.” Garrodo v. State, 97 So. 3d 291,
297 (Fla. 4th DCA 2012) (quoting Stephens v. State, 787 So. 2d 747, 756
(Fla. 2001)).

   Appellant argues that the evidence of the body-cam video was lost and
therefore he was entitled to a jury instruction based upon Davis. In Davis,
a videotape of a field sobriety test in a felony DUI case was lost by the
State. 14 So. 3d at 1131. The officer conducted and recorded the test and
had viewed it. But when he attempted to copy it from the hard drive of the
computer to a DVD (presumably to give to defense counsel who had
requested it), it was lost. The trial court dismissed the charges against the
defendant because of the loss of the evidence. On appeal, our court first
explained that the loss or destruction of material exculpatory evidence by
the State violates a defendant’s due process rights:

      Where lost or unpreserved evidence is “material exculpatory
      evidence,” the loss of such evidence is a violation of the
      defendant’s due process rights and the good or bad faith of
      the State is irrelevant. State v. Muro, 909 So. 2d 448, 452
      (Fla. 4th DCA 2005); see also Kelley v. State, 486 So. 2d 578,
      581 (Fla. 1986) (“‘[T]he suppression by the prosecution of
      evidence favorable to an accused upon request violates due
      process where the evidence is material either to guilt or
      punishment, irrespective of the good faith or bad faith of the
      prosecution.’” (quoting Brady v. Maryland, 373 U.S. 83, 87,
      83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963))).            Lost or
      unpreserved evidence is “material” in this sense “if the
      omitted evidence creates a reasonable doubt that did not
      otherwise exist.” State v. Sobel, 363 So. 2d 324, 327 (Fla.
      1978) (citing United States v. Agurs, 427 U.S. 97, 109, 96 S.
      Ct. 2392, 49 L. Ed. 2d 342 (1976)).

Davis, 14 So. 3d at 1132 (emphasis added). Davis determined that the
videotape was material evidence, but that dismissal was too harsh a
sanction. The opinion explained: “An evaluation of an individual’s
impairment is necessarily somewhat subjective, and the tape would have
provided a jury with the opportunity to assess for itself whether the
defendant was impaired.” Id. Davis relied on State v. Zinsli, 156 Or. App.
245, 966 P.2d 1200 (1998), which explained that a defendant’s testimony
of his sobriety was not an “acceptable substitute” for a videotape of the
actual field sobriety test, when a jury could find the defendant’s testimony
“self-serving” as compared to an officer’s testimony. Thus, the field test

                                     3
was “unique” in allowing the jury to draw its own conclusions on the
sobriety issue.

   We concluded, however, that dismissal of the charges was too harsh a
sanction in that case. Thus, we reversed and suggested various lesser
sanctions which the trial court could consider, including an instruction
that the jury may find the lost evidence exculpatory.

    It may seem as though Davis provides a more lenient view of a
defendant’s right to sanctions where the State loses evidence, because the
opinion agreed with the trial court that the DUI tape was material, but did
not state the tape must also be exculpatory. Because Davis relied on
Zinsli, an analysis of that case indicates such evidence must be both
material and favorable to the defendant. In Zinsli, the State had also lost
a field sobriety test. However, the investigating detective had produced a
report in which he had viewed the videotape to verify his findings. Portions
of the report were favorable to the defendant, as he passed several of the
tests. The report also contained several incriminating statements made
by the defendant, which he testified that he did not make. The video of
the test could have shown both his performance on the tests and revealed
whether he made the statements attributed to him in the report.

    Zinsli noted, “[t]o support a claim of denial of due process on the ground
that constitutionally material evidence was lost, the defendant must make
some showing that either the state acted in bad faith in failing to preserve
the evidence or that the evidence sought to be discovered will be favorable.”
156 Or. App. at 1204. Further, “[w]here the state has not acted in bad
faith, the defendant must show that the claim of favorableness is genuine,
not speculation, and that comparable evidence cannot be obtained ‘by
other reasonably available means.’” Id. at 1204 (citations omitted.).
Because the officer’s report showed that the field sobriety test was at least
in part favorable to the defendant, the defendant’s due process rights were
violated by its loss. Thus, Zinsli also supports the position that the
evidence must be both material and exculpatory to be a due process
violation.

   Davis was called into doubt in Bennett v. State, 23 So. 3d 782 (Fla. 2d
DCA 2009), where the Second District pointed out that the field sobriety
video could have just as likely supported the State’s witness’s testimony
regarding how Davis appeared in the test, meaning it was only potentially
exculpatory.

    Bennett provides a thorough review of the law regarding lost evidence.
It notes that in California v. Trombetta, 467 U.S. 479 (1984), the Supreme

                                      4
Court held that under the due process clause, the State had the duty to
preserve constitutionally material evidence. In Trombetta the Court
explained:

      Whatever duty the Constitution imposes on the States to
      preserve evidence, that duty must be limited to evidence that
      might be expected to play a significant role in the suspect’s
      defense. To meet this standard of constitutional materiality,
      evidence must both possess an exculpatory value that was
      apparent before the evidence was destroyed, and be of
      such a nature that the defendant would be unable to
      obtain comparable evidence by other reasonably available
      means.

467 U.S. at 488-89 (footnote omitted) (citation omitted) (emphasis added).

   The Supreme Court went further in Arizona v. Youngblood, 488 U.S. 51,
58 (1988), and held: “unless a criminal defendant can show bad faith on
the part of the police, failure to preserve potentially useful evidence does
not constitute a denial of due process of law.”

    We followed both Trombetta and Youngblood in State v. Muro, 909 So.
2d 448, 453-54 (Fla. 4th DCA 2005). Muro was cited in Davis, and reversed
the dismissal of charges against a defendant, because lost evidence was
only potentially exculpatory and not constitutionally material. That Davis
relied on Muro shows that it did not intend to set a new standard of
materiality, contrary to that of the Supreme Court.

   In reviewing the jury instruction in question here, it does not comport
with Trombetta, Youngblood, or Muro. The instruction would have allowed
the jury to infer that the evidence was contrary to the State, if the State
lost evidence “whose contents or quality are in issue.” With that
instruction, the jury could have found against the State even if the
evidence was not exculpatory. Simply because the contents of the
videotape may have some bearing on an issue is clearly insufficient to
constitute a due process violation. Youngblood.

    Not only is the wording of the instruction erroneous, the evidence was
also not constitutionally material. In fact, defense counsel admitted that
it could constitute impeachment evidence. The value of lost evidence for
impeachment would not constitute a due process violation, as it would not
meet the definition of constitutional materiality in Trombetta.



                                     5
   In any event, we would also note that whatever was on the videotape
showed only what occurred after the officer entered the residence. The
crime of resisting without violence was complete before the officer turned
on her body-cam as she ran after the appellant. The uniformed officer
confronted defendant with a gun as he was exiting the home through the
back window. In his confession, appellant admitted being confronted by
the officer. She told him not to move and to show his hands. He complied
momentarily and then ran. At that point, he committed the crime of
resisting arrest, regardless of the ensuing chase. See § 843.02, Fla. Stat.
(2017) (“Whoever shall resist, obstruct, or oppose any officer . . . in the
lawful execution of any legal duty, without offering or doing violence to the
person of the officer, shall be guilty of a misdemeanor of the first degree[.]”)
See Palmer v. State, 112 So. 3d 606, 607 (Fla. 4th DCA 2013) (“An officer’s
command to stop is a lawful execution of a legal duty if there is reasonable
suspicion to support the stop.”). Therefore, the body-cam evidence could
not have exonerated appellant.

   In appellant’s second issue on appeal, he argues that the court
committed fundamental error by failing to conduct a colloquy with him
regarding his right to testify. This issue is controlled by Torres-Arboledo v.
State, 524 So. 2d 403 (Fla. 1988). In that case, the Florida Supreme Court
ruled that although there is a constitutional right to testify under the due
process clause of the United States Constitution, that right does not fall
within the category of fundamental rights which must be waived on the
record by the defendant himself. 524 So. 2d at 409-11. The appellant
concedes that Torres-Arboledo is controlling.

   Finally, appellant argues that the court erred in denying his motion to
correct sentencing error. He claimed his sentence was illegal because the
State failed to introduce record evidence of his criminal history to support
his classification as a violent career criminal. As the State notes, however,
his counsel conceded to his qualification as a Violent Career Criminal
based upon counsel’s review of his criminal history. Therefore, counsel
stipulated to this VCC designation, and the State was not required to
introduce specific records of prior felonies.

   For the foregoing reasons, we affirm the judgment of conviction and
sentence.

KLINGENSMITH and KUNTZ, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.

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