  Third District Court of Appeal
                               State of Florida

                         Opinion filed December 4, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2339
                         Lower Tribunal No. 13-27674
                             ________________


                            Francisco Rodriguez,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Diane V. Ward,
Judge.

      Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant
Public Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney
General, for appellee.


Before ROTHENBERG, C.J., and LOGUE and SCALES, JJ.

      LOGUE, J.
      This case returns to us on remand for reconsideration in light of the Supreme

Court of Florida’s decision in Rodriguez v. State, 248 So. 3d 1085 (Fla. 2018)

which directed us to apply the harmless error standard of State v. DiGuilio, 491 So.

2d 1129 (Fla. 1986) rather than the harmless error standard of section 59.041,

Florida Statutes.1

                                      Facts.

      Appellant Francisco Rodriguez appeals his conviction of burglary of an

occupied dwelling and assault. At the request of a pregnant woman named Coral

Negron, Rodriguez went to the apartment of Negron’s neighbors to caution them

about Negron’s complaints of loud noise and harassment. In the ensuing

confrontation, the neighbors’ front door was knocked down, Rodriguez entered the

apartment, a fight occurred, and a handgun was discharged. Although these facts

are not in dispute, virtually all other facts regarding the incident were hotly

contested at the trial where Rodriguez, the neighbors, a neighbors’ friend who was

present, and other witnesses gave evidence.


1 This statute, entitled “Harmless error; effect,” provides in pertinent part “[n]o
judgment shall be set aside or reversed … in any cause, civil or criminal … on the
ground of … the improper admission … of evidence … unless … the error
complained of has resulted in a miscarriage of justice.” § 59.041, Fla. Stat.
(emphases added). The Supreme Court has adopted the alternative DiGuilio
harmless error standard in both criminal and civil appeals. See Rodriguez, 248 So.
3d at 1085-86; DiGuilio, 491 So. 2d at 1139; Special v. W. Boca Med. Ctr., 160
So. 3d 1251, 1265 (Fla. 2015).

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      The neighbors testified Rodriguez kicked down the door, entered the

apartment, pointed a gun at them, beat them, and discharged the gun during the

resulting melee. In contrast, Rodriguez testified he politely asked the neighbors to

leave Negron alone, heard the neighbors threaten Negron, accidently knocked

down only part of the door, was yanked into the apartment as he was turning away

to leave, was attacked, and that a friend of the neighbors in the apartment

possessed the gun and discharged it as part of a confused scuffle.

      Although Negron precipitated the incident, Negron did not testify at trial.

Nevertheless, over objection, out-of-court statements by Negron were admitted

into evidence. In pertinent part, the objected-to testimony consisted of (1) one

neighbor’s statement that, on the day before the incident, Negron threatened to

send someone to “whoop his a**” or “f*** him up”; and (2) a witness’s statement

that he heard Negron tell one neighbor on the day before the incident, “I’m going

to get somebody to put a cap in [your] a**.” In its closing, the Assistant State

Attorney expressly cited Negron’s hearsay statements regarding getting someone

to put a cap in the neighbor two times contending: “[t]his is the evidence that we

have of the Defendant’s intent to commit an assault inside [the neighbor’s]

apartment.”

      Rodriguez was charged with armed burglary of an occupied dwelling,

aggravated assault or battery with a deadly weapon, discharge of a firearm, and


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unlawful possession of a firearm by a convicted felon. The jury found Rodriguez

guilty of burglary of an occupied dwelling and assault, but it specifically found that

Rodriguez did not: (1) possess, use, or discharge a firearm, or (2) commit a battery.

Rodriguez was sentenced to 72 months in prison, followed by ten years’ probation.

This appeal followed.

                                      Analysis.

             a. “Then-Existing” State of Mind Exception

      Rodriguez challenges the admission of Negron’s hearsay statements

identified above. The State argues that Negron’s out-of-court statements are

admissible under section 90.803(3), Florida Statutes, to prove the “then-existing”

state of mind of the declarant. While we review the admission of evidence for “a

clear abuse of discretion,” Ray v. State, 755 So. 2d 604, 610 (Fla. 2000), we are

unpersuaded by the State’s argument.

      The first problem with this argument is that, as the quote from the State’s

closing argument indicated, the State used Negron’s statement to prove

Rodriguez’s state of mind. It is well-settled, however, that this hearsay exception

“applies only to the declarant’s state of mind, not to someone else’s state of mind.”

Suarez v. State, 879 So. 2d 1251, 1253 (Fla. 3d DCA 2004) (citing Van Zant v.

State, 372 So. 2d 502, 504 (Fla. 1st DCA 1979)); see also Brooks v. State, 787 So.

2d 765, 772 (Fla. 2001) (noting that “statements of intent can ordinarily be used to


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prove the subsequent acts of the declarant, not a defendant”); Woods v. State, 733

So. 2d 980, 987 (Fla. 1999); Sybers v. State, 841 So. 2d 532, 545 (Fla. 1st DCA

2003); Bailey v. State, 419 So. 2d 721 (Fla. 1st DCA 1982). The exception is

“inapplicable to situations where the declarant’s state of mind is not at issue.”

Suarez, 879 So. 2d at 1253 (citing Usher v. State, 642 So. 2d 29, 31 (Fla. 2d DCA

1994)).

      Nevertheless, the State counters that Negron’s state of mind was itself

relevant under the line of cases recognizing the state of mind of a victim may be

relevant. See Huggins v. State, 889 So. 2d 743, 748 (2004) (recognizing exceptions

to the state-of-mind rule); Brooks, 787 So. 2d at 771 (explaining that a victim’s

state of mind may be relevant to: (1) an element of the crime; (2) an issue in the

case where defendant claims self-defense, that the victim committed suicide, or the

victim’s death was accidental; or (3) when used to rebut a defense raised by

defendant); Woods, 733 So. 2d at 988; Peede v. State, 474 So. 2d 808, 816 (Fla.

1985); State v. Bradford, 658 So. 2d 572, 574-75 (Fla. 5th DCA 1995). Despite the

State’s attempt to fit the facts of this case within one of the exceptions to the

principles espoused under “then-existing” state of mind exception, none of those

limited exceptions apply here. Negron was not the victim of the crimes alleged in

this case. While Rodriguez’s state of mind was a central issue in the case, Negron’s

state of mind simply was not.


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            b. Harmless Error

      We next turn to the issue of whether the error of admitting this hearsay was

harmless. The Supreme Court of Florida set out the test to be applied in

determining whether an error is harmless:

            The test is not a sufficiency-of-the-evidence, a correct
            result, a not clearly wrong, a substantial evidence, a more
            probable than not, a clear and convincing, or even an
            overwhelming evidence test. Harmless error is not a
            device for the appellate court to substitute itself for the
            trier-of-fact by simply weighing the evidence. The focus
            is on the effect of the error on the trier-of-fact. The
            question is whether there is a reasonable possibility that
            the error affected the verdict. The burden to show the
            error was harmless must remain on the state. If the
            appellate court cannot say beyond a reasonable doubt that
            the error did not affect the verdict, then the error is by
            definition harmful.

DiGuilio, 491 So. 2d at 1139 (emphasis added).

      The admission of Negron’s statements about getting someone to “put a cap”

in one of the neighbor’s backsides, by itself, might be viewed as harmless under

this exacting standard (even though it was featured in the State’s closing argument)

because the jury found that Rodriguez did not possess a firearm. See Conahan v.

State, No. SC18-303, 2018 WL 5095164, at *1 (Fla. Oct. 19, 2018) (holding that

error to instruct jury in death penalty case that verdict must be unanimous was

harmless under DiGuilio standard when jury returned unanimous verdict anyway).

However, the scale tips into harmful error with the addition of Negron’s statements


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to a neighbor that she was going to send someone to “whoop his a**” or “f*** him

up.”

       One of the major disputed issues at trial was whether Rodriguez intended to

assault the neighbors when he entered their apartment. Rodriguez testified he did

not. While there was substantial, even overwhelming evidence to the contrary, a

reasonable possibility exists that Negron’s hearsay statements were projected by

the jury onto Rodriguez and used to conclude Rodriguez had the “intent to commit

an assault inside [the neighbor’s] apartment” which is exactly what the State

argued in its closing.   We certainly cannot exclude this possibility beyond a

reasonable doubt.

       Accordingly, we conclude the State has not met its burden of establishing

this error was harmless under the DiGuilio standard.

       Reversed.

    ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN
DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE FILED
WITHIN FIVE DAYS THEREAFTER.




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