         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                             NOT FINAL UNTIL TIME EXPIRES TO
                                             FILE MOTION FOR REHEARING AND
                                             DISPOSITION THEREOF IF FILED


DANTE MARTIN,

             Appellant,

 v.                                                 Case No. 5D15-284

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed November 18, 2016

Appeal from the Circuit Court
for Orange County,
Renee A. Roche, Judge.

Rupak R. Shah and Frances E. Martinez, of
Escobar & Assoc., P.A., Tampa, for
Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Samuel A. Perrone and
Bonnie Jean Parrish, Assistant Attorney
Generals, Daytona Beach, for Appellee.


PALMER, J.

      Dante Martin (the defendant) appeals his judgment and sentences, which were

entered by the trial court after a jury found him guilty of committing the crimes of
manslaughter,1 felony hazing resulting in death,2 and two counts of misdemeanor hazing.3

We affirm.

       The defendant was a member of the percussion section of the Florida A&M

University's marching band, the "Marching 100." Members of the percussion section are

entitled to ride to away events in a motor coach known as "Bus C." The defendant was

president of Bus C.

       A tradition or ritual known as "Crossing Bus C" has existed at the University for

some time. The ritual consists of three components: 1) the hot seat, 2) the prepping, and

3) the crossing. During the hot seat, the participant takes a seat on Bus C (near the front)

and is struck or hit repeatedly by others, including members of the percussion section.

Next, the participant is prepped. During the prepping, the participant stands up and places

his or her hands on the luggage rail and is then slapped a number of times with full force

by the others on the bus. After the prepping, the participant crosses from the front of the

bus to the back while others slap, kick, and punch the participant. The defendant, as bus

president, decided when someone could cross Bus C.

       On the day at issue, Keon Hollis, Robert Champion, and the defendant, as

members of the Marching 100, performed at the Florida Classic in Orlando, Florida.

Immediately following the band's performance, the defendant asked Hollis if he planned

to cross the bus. Hollis indicated that he wanted to do so. Later, Jonathan Boyce, also

a member of the band, received a text from the defendant asking him to convey to Hollis

and Champion that if they wanted to cross "it's available" to them.


       1§  782.07, Fla. Stat. (2012).
       2§  1006.63(2), Fla. Stat. (2012).
       3 § 1006.63(3), Fla. Stat. (2012).




                                             2
       That night, Lissette Sanchez (another member of the percussion section), Hollis,

and Champion crossed Bus C, and the defendant participated in these crossings.

Champion was the last to cross. When Champion made it to the back, he appeared tired,

but indicated, "I'm good." After the crossings were completed, everyone left the bus

except Champion. When Boyce noticed that Champion was not with him, he returned to

the bus. He found Champion in the back of the bus panicking; and, shortly thereafter,

Champion passed out. Champion was taken to a hospital, but efforts to save his life were

not successful.

       Champion's body was transferred from the hospital to the medical examiner’s

office. Dr. Sarah Irrgang, the associate medical examiner, visually examined Champion’s

body. She observed some discoloration and a few superficial abrasions, she took several

photographs, and then released Champion’s body for bone harvesting. The next day,

after his leg bones had been harvested, Champion's body was returned to the medical

examiner’s office. At that time, Dr. Irrgang noticed unevenness in the skin on Champion's

torso, suggesting swelling. This observation prompted Dr. Irrgang to investigate further.

She took a number of pictures of Champion’s body during the ensuing autopsy. Based

on her investigation, she determined that the manner of death was homicide.

       The defendant was later arrested and charged with manslaughter, felony hazing

resulting in death, and two counts of misdemeanor hazing. The matter proceeded to a

jury trial, which resulted in guilty verdicts on all counts. The trial court entered judgment

in accordance with the verdicts and sentenced the defendant to a term of seventy-seven

months' imprisonment. This appeal followed.




                                             3
              overbreadth is one of the few exceptions to the traditional
              rules that courts will not consider factual questions beyond the
              scope of the case at hand. See Schmitt v. State, 590 So. 2d
              404, 411–12 (Fla.1991). "Hypothetical consequences are
              considered in the case of allegedly overbroad statutes
              precisely because this is the only way to give effect to the
              constitutional right of free speech." Id. at 411.

              The deleterious result of overbroad statutes often is described
              as a "chilling effect." . . . The overbreadth doctrine and its
              requirement of considering hypothetical consequences is
              intended to eliminate this chilling effect and thus allow for the
              free, unhindered exercise of constitutional rights.

              Id. at 412 (citations omitted). It is said, however, that in the
              arena of free speech and expression, the overbreadth
              doctrine is an unusual remedy which is to be used sparingly,
              particularly where the challenged statute is primarily meant to
              regulate conduct and not merely pure speech. Id.

947 So. 2d at 644–45. Of consequence, "the overbreadth doctrine applies only if the

legislation is susceptible of application to conduct protected by the First Amendment."

Simmons v. State, 944 So. 2d 317, 323 (Fla. 2006) (quoting Southeast Fisheries Ass'n,

Inc. v. Dep't of Nat. Res., 453 So. 2d 1351, 1353 (Fla. 1984)).

       The defendant asserts that Florida's hazing statute encroaches upon

constitutionally-protected speech or conduct and, thus, the statute is overbroad; however,

he does not articulate how the statute is susceptible of application to speech or conduct

protected by the First Amendment. See id.; State v. Bryant, 953 So. 2d 585, 587 (Fla. 1st

DCA 2007). Rather, he simply argues that, by criminalizing hazing without respect to the

victim’s consent, subsection 1006.63(5) regulates and restricts "a wide variety of activity

that would otherwise be protected by the First Amendment, including, most disturbingly,

the freedom of association and expression." Because the defendant is challenging the

statute on overbreadth grounds, he "bears the burden of demonstrating from both the text




                                             6
              consumption of any food, liquor, drug, or other substance, or
              other forced physical activity that could adversely affect the
              physical health or safety of the student, and also includes any
              activity that would subject the student to extreme mental
              stress, such as sleep deprivation, forced exclusion from social
              contact, forced conduct that could result in extreme
              embarrassment, or other forced activity that could adversely
              affect the mental health or dignity of the student. Hazing does
              not include customary athletic events or other similar contests
              or competitions or any activity or conduct that furthers a legal
              and legitimate objective.
                      ....

              (5) It is not a defense to a charge of hazing that:

              (a) The consent of the victim had been obtained;
              (b) The conduct or activity that resulted in the death or injury
              of a person was not part of an official organizational event or
              was not otherwise sanctioned or approved by the
              organization; or
              (c) The conduct or activity that resulted in death or injury of
              the person was not done as a condition of membership to an
              organization.

§ 1006.63(1), (5), Fla. Stat. (2012).

       As for the defendant's overbreadth claims, a "statute is deemed to be overbroad if

it seeks to control or prevent activities properly subject to regulation by means which

sweep too broadly into an area of constitutionally protected freedom." J.L.S. v. State, 947

So. 2d 641, 644 (Fla. 3d DCA 2007) (citing Firestone v. News–Press Publ'g Co., Inc., 538

So. 2d 457, 459 (Fla. 1989)). In J.L.S., the Third District set forth the following principles

concerning the overbreadth doctrine:

              The doctrine of overbreadth permits an individual whose own
              speech or conduct may be prohibited to challenge an
              enactment facially "because it also threatens others not
              before the court—those who desire to engage in legally
              protected expression but who may refrain from doing so rather
              than risk prosecution or undertake to have the law declared
              partially invalid." Sult v. State, 906 So. 2d 1013, 1019
              (Fla. 2005) (quoting Brockett v. Spokane Arcades, Inc., 472
              U.S. 491, 503 (1985)). In other words, the issue of


                                              5
              A vague statute is one that fails to give adequate notice of
              what conduct is prohibited and which, because of its
              imprecision, may also invite arbitrary and discriminatory
              enforcement. In determining whether a statute is vague,
              common understanding and reason must be used. Where a
              statute does not specifically define words of common usage,
              such words must be given their plain and ordinary meaning.
              Further, courts cannot require the legislature to draft laws with
              such specificity that the intent and purpose of the law may be
              easily avoided. Courts must determine whether or not the
              party to whom the law applies has fair notice of what is
              prohibited and whether the law can be applied uniformly.

Id. at 1353–54 (citation omitted). Importantly, "[t]he Legislature's failure to define a critical

term does not by itself render a statute unconstitutionally vague." Morton v. State, 988

So. 2d 698, 702 (Fla. 1st DCA 2008); accord State v. Hagan, 387 So. 2d 943, 945 (Fla.

1980). Instead, "[w]here a statute does not specifically define words of common usage,

such words are construed in their plain and ordinary sense." Hagan, 387 So. 2d at 945;

accord Morton, 988 So. 2d at 702. Furthermore, unlike overbreadth challenges, an

individual challenging a statute as being unconstitutionally vague must satisfy the

traditional rules of standing:

              [T]he traditional rule is that a person to whom a statute may
              constitutionally be applied lacks standing to challenge that
              statute on the ground that it may conceivably be applied
              unconstitutionally to others in situations not before the court.

J.L.S., 947 So. 2d at 646.

       Here, the testimony presented at trial demonstrated that Champion, Hollis, and

Sanchez were beaten repeatedly as each crossed Bus C. That conduct constituted

brutality of a physical nature, plainly prohibited by the statute. Because the defendant

participated in the crossings, he violated the plain terms of the statute. Thus, he lacks




                                               8
of the statute and from actual facts that substantial overbreadth exists." J.L.S., 947 So.

2d at 645. The defendant has not demonstrated that the hazing statute criminalizes any

speech or conduct protected by the First Amendment; therefore, his overbreadth

challenge fails. See Kahles, 644 So. 2d at 512 (explaining that an overbreadth challenge

fails if the enactment does not reach a substantial amount of speech or conduct protected

by the First Amendment).

       The defendant also argues that Florida's hazing statute is overbroad as applied to

him. We disagree. To prevail on his as-applied challenge, the defendant must

demonstrate that the hazing statute criminalized his own conduct, which was protected

by the First Amendment. See State v. Cotton, 198 So. 3d 737, 743 (Fla. 2d DCA 2016).

The defendant failed to sustain his burden of proof by not demonstrating how his conduct

during the crossings was protected by the First Amendment. Additionally, he cites no

authority supporting his overbreadth as-applied claim. See Newell v. State, 875 So. 2d

747, 748 (Fla. 2d DCA 2004) (rejecting constitutional challenge where defendant made

only a generalized attack on the sexual offender registration statute, "without providing

any significant analysis or citation to legal authority").

       As for his claim of vagueness, the defendant argues that the words "brutality" and

"competition," as set forth in the hazing statute, cause the statute to be unconstitutionally

vague. Once again, we disagree.

       "[T]he doctrines of overbreadth and vagueness are separate and distinct."

Southeast Fisheries Ass'n, 453 So. 2d at 1353. "The vagueness doctrine has a broader

application . . . because it was developed to assure compliance with the due process

clause of the United States Constitution." Id. Our Supreme Court has explained:




                                               7
              A vague statute is one that fails to give adequate notice of
              what conduct is prohibited and which, because of its
              imprecision, may also invite arbitrary and discriminatory
              enforcement. In determining whether a statute is vague,
              common understanding and reason must be used. Where a
              statute does not specifically define words of common usage,
              such words must be given their plain and ordinary meaning.
              Further, courts cannot require the legislature to draft laws with
              such specificity that the intent and purpose of the law may be
              easily avoided. Courts must determine whether or not the
              party to whom the law applies has fair notice of what is
              prohibited and whether the law can be applied uniformly.

Id. at 1353–54 (citation omitted). Importantly, "[t]he Legislature's failure to define a critical

term does not by itself render a statute unconstitutionally vague." Morton v. State, 988

So. 2d 698, 702 (Fla. 1st DCA 2008); accord State v. Hagan, 387 So. 2d 943, 945 (Fla.

1980). Instead, "[w]here a statute does not specifically define words of common usage,

such words are construed in their plain and ordinary sense." Hagan, 387 So. 2d at 945;

accord Morton, 988 So. 2d at 702. Furthermore, unlike overbreadth challenges, an

individual challenging a statute as being unconstitutionally vague must satisfy the

traditional rules of standing:

              [T]he traditional rule is that a person to whom a statute may
              constitutionally be applied lacks standing to challenge that
              statute on the ground that it may conceivably be applied
              unconstitutionally to others in situations not before the court.

J.L.S., 947 So. 2d at 646.

       Here, the testimony presented at trial demonstrated that Champion, Hollis, and

Sanchez were beaten repeatedly as each crossed Bus C. That conduct constituted

brutality of a physical nature, plainly prohibited by the statute. Because the defendant

participated in the crossings, he violated the plain terms of the statute. Thus, he lacks




                                               8
standing to challenge the statute as being vague based on the term brutality.4 See J.L.S.,

947 So. 2d at 646 (concluding that defendant lacked standing to challenge school safety

zone statute as being vague because he "engaged in some conduct clearly proscribed"

by the statute).

       Similarly, with respect to the term "competition," although the statute does not

define this term or provide examples of competition, we may resort to dictionaries to

determine the meaning of an undefined statutory term. See Morton, 988 So. 2d at 702;

Sims v. State, 510 So. 2d 1045, 1047 (Fla. 1st DCA 1987). The World Book Dictionary

defines competition as "the act or state of trying hard to win or gain something wanted by

others." World Book Dictionary 423 (2009). Another dictionary contains the following

similar definition of competition: "the act or action of seeking to gain what another is

seeking to gain at the same time; . . . a common struggle for the same object." Webster's

Third New International Dictionary 464 (1976). The meaning of "competition," as provided

in these definitions, is sufficiently definite such that the defendant was not forced to guess

at its meaning. See Morton, 988 So. 2d at 702 (relying on definition of "serious" found in

two dictionaries in rejecting vagueness challenge based on undefined statutory phrase

"serious bodily injury").




       4  Even if the defendant possessed standing to assert this challenge, the
defendant's argument would still lack merit. As mentioned above, the statute provides a
nonexclusive list of acts constituting "brutality," which includes "whipping," "beating," and
"branding." §1006.63(1), Fla. Stat. (2012). These examples would put a person of
ordinary intelligence on notice as to what conduct constitutes brutality. See Morton, 988
So. 2d at 702. Thus, the use of the term brutality does not render the statute
unconstitutionally vague.



                                              9
       Having rejected all of the defendant's constitutional claims, we now discuss his

claims of trial error.

       The defendant argues that the trial court erred in denying his motion to dismiss the

manslaughter count. We disagree.

       "The standard of review for a trial court order regarding a motion to dismiss is de

novo." Bell v. State, 835 So. 2d 392, 394 (Fla. 2d DCA 2003).

       Prior to trial, the defendant moved to dismiss the manslaughter count, contending

that the hazing statute is a specific statute covering a particular subject matter and, as

such, was controlling over the general manslaughter statute, inclusive of that same

subject matter. To support this claim, he relied on Adams v. Culver, 111 So. 2d 665, 667

(Fla. 1959) (recognizing that a specific statute covering certain subject matter controls

over a general statute covering the same subject matter). The defendant acknowledged

that subsection 1006.63(6) of the hazing statute expressly states that this "section shall

not be construed to preclude prosecution for a more general offense resulting from the

same criminal transaction or episode," but he argued that, because the sanctions under

the more general offense of manslaughter are more severe than the sanctions of the

specific offense of felony hazing, the Culver rule applied and, thus, warranted dismissal

of the manslaughter count.

       Here, the Legislature made clear in the language of subsection 1006.63(6) that the

State can prosecute the defendant for "a more general offense resulting from the same

criminal transaction or episode." Accordingly, the trial court properly denied the dismissal

motion. See W. Fla. Reg'l Med. Ctr., Inc. v. See, 79 So. 3d 1, 9 (Fla. 2012) (explaining

that, if a statute's language is "clear and unambiguous and conveys a clear and definite




                                            10
meaning, this Court will apply that unequivocal meaning and not resort to the rules of

statutory interpretation and construction."); Knowles v. Beverly Enterprises-Florida, Inc.,

898 So. 2d 1, 10 (Fla. 2004) ("The rules of statutory construction are the means by which

courts seek to determine legislative intent only when that intent is not plain and obvious

enough to be conclusive.").

       Next, the defendant argues that the trial court abused its discretion in admitting

into evidence, over his objection, testimony and photographs relating to the condition of

Champion’s body after the bone harvest procedure was completed. He contends that the

evidence was inadmissible because the State failed to establish the chain of custody of

the body while it was transported to and from the bone harvesting location; and thus, the

State failed to prove that Champion's body was not tampered with during the bone

harvesting procedure. We disagree.

       "A trial court's ruling on the admissibility of evidence is subject to an abuse of

discretion standard of review, but the court's discretion is limited by rules of evidence and

the applicable case law." Horowitz v. State, 189 So. 3d 800, 802 (Fla. 4th DCA 2015),

approved, 191 So. 3d 429 (Fla. 2016). In State v. Jones, 30 So. 3d 619, 622 (Fla. 2d DCA

2010), the Second District explained the law applicable to claims of evidence tampering:

              [R]elevant physical evidence is admissible unless there is an
              indication of probable tampering. In seeking to exclude certain
              evidence, [the movant] bears the initial burden of
              demonstrating the probability of tampering. Once this burden
              has been met, the burden shifts to the proponent of the
              evidence to submit evidence that tampering did not occur.

              A mere break in the chain of custody is not in and of itself a
              basis for exclusion of physical evidence. Rather, the court
              should consider the probability that the evidence has been
              tampered with during the interim for which it is unaccounted.

Id. at 622 (alteration in original) (citations omitted) (internal quotation marks omitted).


                                              11
       Here, while we agree that the prosecutor's comment was improper, the trial court

issued a proper curative instruction. As such, the trial court did not err in denying the

mistrial motion. See Espute v. State, 85 So. 3d 532, 536 (Fla. 4th DCA 2012) (holding

that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial

where the court sustained defense counsel’s objection and gave a curative instruction).

       AFFIRMED.



SAWAYA and COHEN, JJ., concur.




                                              16
                an issue that is in dispute." Almeida [v. State, 748 So. 2d 922,
                929 (Fla. 1999)].

Ault v. State, 53 So. 3d 175, 198–99 (Fla. 2010); see also Armstrong v. State, 73 So. 3d

155, 168 (Fla. 2011); England v. State, 940 So. 2d 389, 399 (Fla. 2006).

         Here, the defendant filed a motion in limine seeking to exclude the autopsy

photographs, arguing that the photographs were not necessary to help the jury

understand the medical examiner's testimony, were not relevant to the manslaughter or

felony hazing charges, and were unduly prejudicial. The trial court denied the motion. At

trial, the defendant renewed his motion in limine and additionally argued that the

photographs would be unnecessarily gory. The motion was denied, and the photographs

were admitted into evidence. This ruling was correct. See England, 940 So. 2d at 399;

Ault, 53 So. 3d at 200.

         Champion's autopsy photographs assisted the medical examiner in explaining to

the jury the nature and manner in which the wounds were inflicted on his body. They also

reinforced the testimony from other witnesses indicating that Champion had been

repeatedly struck during the crossing. Importantly, the photographs were relevant to an

issue that was in dispute: whether Champion was the victim of "any brutality of a physical

nature, such as whipping, beating, branding . . . ." § 1006.63(1). Also, as for the claim that

the photographs were not admissible because they were too gruesome, the trial court

ruled that the photographs were not unnecessarily gory and independent review of the

record supports this conclusion.

         Next, the defendant argues that the trial court abused its discretion in refusing to

issue his proposed jury instruction on uncharged conspiracy. This argument also lacks

merit.



                                              13
       "The giving or withholding by a trial court of a requested jury instruction is reviewed

under an abuse of discretion standard of review." Worley v. State, 848 So. 2d 491, 491

(Fla. 5th DCA 2003). "The trial court's refusal to give the requested instructions must be

judged by [the appellate court] in light of all of the instructions actually given. If the

instructions given contain a sufficient statement of the law concerning the points in

controversy, then there is no reversible error in failing to give the requested instructions."

Tolivert v. Estate of Scherer, 715 So. 2d 358, 359–60 (Fla. 5th DCA 1998).

       At the charge conference, both the State and the defendant submitted proposed

instructions to the trial court on the issue of uncharged conspiracy. After receiving

argument on the proposed instructions, the trial court ruled that it would not use either

instruction. Rather, the court drafted its own instruction on the issue.

       In Boyd v. State, 389 So. 2d 642 (Fla. 2d DCA 1980), the Second District discussed

the proper instruction to be issued on an uncharged count of conspiracy. The court

explained:

              At a minimum, the instructions should contain a definition of
              conspiracy, an explanation of the legal consequences of
              proving a conspiracy in the case, and the admonition that it is
              for the jury to determine whether a conspiracy has been
              established beyond a reasonable doubt. Where, as in this
              case, the crime of conspiracy is not charged, the state is not
              required to prove all the elements of the crime of conspiracy
              and it is error to tell the jury it must find that all those elements
              have been established.

Id. at 647 (footnote omitted) (citations omitted). Here, the trial court’s instruction defined

conspiracy, explained the consequences of a conspiracy, and indicated that the jury must

find that a conspiracy existed beyond a reasonable doubt. Because the court's instruction

comported with Boyd, no error occurred.




                                               14
       The defendant next argues that the trial court erred in rejecting his proposed jury

instruction on hazing. This argument was not preserved for appellate review because the

record does not demonstrate that the defendant requested said instruction below. See

Fla. R. Crim. P. 3.390(d); see also Hood v. State, 287 So. 2d 110, 110 (Fla. 4th DCA

1973) (explaining that a request for a jury instruction or an objection to the failure to give

an instruction is necessary to raise error on appeal).

       Lastly, the defendant argues that the trial court erred in denying his motion for

mistrial. This argument also lacks merit.

       During closing argument, the prosecutor stated, "[T]he problem is that the crossing

has to stop." Defense counsel objected and sought a mistrial, claiming the comment

constituted an inappropriate send-a-message argument. See Fletcher v. State, 168 So.

3d 186, 209 (Fla. 2015) (explaining that prosecutors may not ask the jury to send a

message through its verdict). The trial court ultimately denied the mistrial motion, but

promptly issued a curative instruction.

       "The standard of review is . . . abuse of discretion where [the defendant] moved

for a mistrial and [the] motion was denied." Panchoo v. State, 185 So. 3d 562, 564 (Fla.

5th DCA 2016) (citations omitted). "In determining whether improper remarks warrant a

new trial, the remarks must be examined in 'the context of the closing argument as a

whole and considered cumulatively within the context of the entire record.'" Jennings v.

State, 124 So. 3d 257, 266 (Fla. 3d DCA 2013) (quoting McArthur v. State, 801 So. 2d

1037, 1040 (Fla. 5th DCA 2001)). Moreover, "[g]enerally speaking, the use of a curative

instruction to dispel the prejudicial effect of an objectionable comment is sufficient." Id.

(internal quotation marks omitted).




                                             15
       Here, while we agree that the prosecutor's comment was improper, the trial court

issued a proper curative instruction. As such, the trial court did not err in denying the

mistrial motion. See Espute v. State, 85 So. 3d 532, 536 (Fla. 4th DCA 2012) (holding

that the trial court did not abuse its discretion in denying the defendant’s motion for mistrial

where the court sustained defense counsel’s objection and gave a curative instruction).

       AFFIRMED.



SAWAYA and COHEN, JJ., concur.




                                              16
