          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-5010
                  _____________________________

KENNETH LEE MANHARD,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Bay County.
Michael C. Overstreet, Judge.

                         October 1, 2019


B.L. THOMAS, J.
     Appellant challenges his judgment and sentence for leaving
the scene of a crash involving death, DUI manslaughter, and
driving while license canceled, suspended, or revoked, causing
serious bodily injury or death. We affirm because the evidence was
sufficient to sustain the conviction, and the trial court’s relevant
evidentiary rulings were correct.
                               Facts
     All charges arose from a crash on April 7, 2016, that resulted
in the death of a motorcycle driver. The parties stipulated that
Appellant had a suspended driver’s license at the time of the
offense. Eyewitnesses testified that Appellant had been driving a
white Hyundai sedan that morning. One witness testified that
Appellant had appeared intoxicated at 3:54 a.m. when Appellant
drove away in an undamaged white sedan. Other witnesses stated
that between 4 and 5 a.m., they saw Appellant sitting behind the
driver’s seat of a white sedan with his eyes closed. They testified
there was damage to the front of the vehicle and windshield, with
the windshield containing a “butt print,” blood, and hair. They also
testified Appellant stated he had not hit anybody and that
“someone threw a scooter at me.”
     A highway patrol officer testified that he responded to the
scene of an accident involving the death of a motorcycle driver on
Hathaway Bridge. The officer stated the damage to the rear and
side of the motorcycle was consistent with a rear-end collision, and
blood pools on the bridge indicated the motorcycle’s driver had
been hit and then moved by subsequent collisions. He testified that
dispatch notified him of a suspect vehicle at a nearby gas station,
where he observed Appellant next to a white Hyundai sedan,
which had a damaged front end and windshield. He noted that
both the blood and the “significant nature” of the deformed
windshield showed the vehicle made contact with a human body,
and there was an injury. In addition, he observed blue and green
paint consistent with the victim’s license plate, which had
transferred onto the white vehicle.
     A forensic pathologist testified that the cause of death was
multiple blunt injuries, each of which could have caused great
bodily harm. She stated, however, that it was impossible to
determine which of the multiple impacts caused which specific
injury.
     After the State rested, Appellant moved for judgment of
acquittal on all counts. Regarding the charge of leaving the scene
of a crash involving death, Appellant argued the State failed to
establish he knew or should have known he was involved in a crash
with a person. He also argued the State failed to establish that he
knew or should have known his crash with the victim resulted in
the victim’s death. He asserted that a driver must know of the
specific impact that resulted in injury, when the crash involves
multiple impacts.
    As to the DUI manslaughter charge, Appellant argued the
State failed to establish that he was impaired at the time he was

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in actual physical control of the vehicle or that he caused or
contributed to the victim’s death. Lastly, regarding the charge of
driving while license canceled, suspended, or revoked causing
serious bodily injury or death, Appellant argued the State failed to
provide evidence that Appellant drove carelessly or negligently.
The trial court denied Appellant’s motion on all counts.
    Before trial, Appellant filed a motion in limine, stating:
    The State [intends] to show the video from the backseat
    of [a] Trooper[’s] vehicle. The video contains reference to
    matters which have been suppressed, crimes not charged,
    and further matters which are more prejudicial than
    probative in this case.
     At a pretrial hearing, the State agreed to redact the recording
to omit references to all the instances listed in Appellant’s motion
in limine, including the segment which showed Appellant being
restrained. At trial, Appellant reaffirmed the objections listed in
the motion in limine, stating, “[j]ust with previous objections.”
     The redacted recording showed that Appellant was advised of
his Miranda ∗ rights, and he invoked his right to silence. However,
Appellant continued to talk after invoking his right, and claimed
he did not own and had not driven the vehicle. He further alleged
a bird had hit his windshield. Throughout the recording, Appellant
used offensive language, threatened the officers, and threatened to
urinate in the car. The recording also showed an interaction
between two officers during which one officer mentioned “[h]e’s
invoked his right to remain silent.” Appellant made no other
objections during or after the presentation of the recording and did
not move for a mistrial.
    On Appellant’s Criminal Punishment Code scoresheet, the
State assessed Appellant 120 points in the “Victim Injury”
category for “death.” Appellant filed a second motion to correct
sentence under Florida Rule of Criminal Procedure 3.800(b).
Appellant argued that because the jury did not find Appellant
actually caused the death or that the death was a direct result of


    ∗
        Miranda v. Arizona, 384 U.S. 436 (1966).

                                 3
Appellant’s actions, Appellant’s scoresheet sentence             was
impermissibly increased by a factor not found by the jury.
     The trial court denied Appellant’s second motion to correct
sentence, stating, “the language of [section 921.0021(7)(a), Florida
Statutes] imparts no such requirement; [t]he Defendant’s
conviction for DUI Manslaughter is sufficient on its own to support
the enhancement.”
                              Analysis

I. The trial court did not err in denying the motion for judgment of
                               acquittal

     Our review of the trial court’s ruling denying the motion for
judgment of acquittal is de novo. Pagan v. State, 830 So. 2d 792,
803 (Fla. 2002). “A trial court should not grant a motion for
judgment of acquittal unless the evidence, when viewed in a light
most favorable to the State, fails to establish a prima facie case of
guilt.” State v. Odom, 862 So. 2d 56, 59 (Fla. 2d DCA 2003). “Where
the state has produced competent evidence to support every
element of the crime, a judgment of acquittal is not proper.” Gay v.
State, 607 So. 2d 454, 457 (Fla. 1st DCA 1992).
     Under section 316.027, Florida Statutes, to prove that the
driver of a vehicle left the scene of a crash involving death or
injury, the State must prove the driver of the vehicle had actual
knowledge of a crash. But the State is not required to prove the
defendant knew or should have known that a death occurred to
sustain a conviction for leaving the scene of a crash resulting in
death. See State v. Dumas, 700 So. 2d 1223 (Fla. 1997). Rather, the
State must prove the defendant knew or reasonably should have
known that a person was at least injured in the crash. See State v.
Mancuso, 652 So. 2d 370, 371 (Fla. 1995) (holding that criminal
liability for leaving the scene of an accident involving death or
injury required proof that motorist knew of resulting injury or
death or reasonably should have known from the nature of the
accident).
    The nature of the vehicle damage may be used to establish
that the defendant should have known there was serious injury.
See Pitts v. State, 227 So. 3d 674, 677 (Fla. 1st DCA 2017). In Pitts,

                                  4
this Court held the trial court did not err in denying the
defendant’s motion for judgment of acquittal when the State had
produced sufficient evidence that the defendant knew or should
have known there was serious injury by presenting evidence that
the defendant’s DNA was on the steering wheel, the victim had
rolled over the hood of the car, and the victim had impacted the
windshield. Id. at 477.
     Here, the State presented sufficient evidence that Appellant
knew of the crash and knew or should have known there was
serious injury. It introduced into evidence jail phone calls in which
Appellant admitted, “somebody hit him into me, he rolled up over
my car, broke the windshield, I freaked out, kept on driving.” The
State presented testimony that Appellant had been in the driver’s
seat with a damaged windshield and glass on him, and that he
claimed a scooter hit his windshield. The State thus presented
evidence that Appellant knew or should have known that there
was serious injury to a person as Appellant’s vehicle had hit the
victim on his motorcycle from behind with enough “significant
force” that the victim’s body impacted the windshield. Viewed in
the light most favorable to the State, the State established every
element of leaving the scene of a crash involving death. See Odom,
862 So. 2d at 59.
     Appellant also challenges the denial of the motion on the
grounds that Booker v. State, 103 So. 3d 1035 (Fla. 2d DCA 2012)
and McGowan v. State, 139 So. 3d 934 (Fla. 4th DCA 2014) hold
for the principle that where the victim is involved in a multiple-
impact collision, the State must prove the additional element that
the driver knew of the specific impact that actually resulted in the
injury. Even if these cases were binding on this Court, which they
are not, see Pardo v. State, 596 So. 2d 665, 666–67 (Fla. 1992) (“[I]n
the absence of interdistrict conflict, district court decisions bind all
Florida trial courts”) (emphasis added); see Ansin v. Thurston, 101
So. 2d 808, 810 (Fla. 1958) (holding the district courts of appeal
were never intended to be intermediate courts, and review by the
district courts are final and absolute in most instances); see In re
Rule 9.331, Determination of Causes by a Dist. Court of Appeal En
Banc, Fla. Rules of Appellate Procedure, 416 So. 2d 1127, 1127–28
(Fla. 1982)(noting the amendment “substantially strengthened the
position of the district courts of appeal as final appellate courts”),
both cases are distinguishable.
                                   5
     In Booker, the Second District held the State failed to present
evidence that Booker knew or should have known that injury was
a consequence of the crash when there was minimal injury to the
vehicle and the victim’s car was partially obscured from view by a
parked patrol car. 103 So. 3d at 1036. Furthermore, nothing about
the nature of the impact in and of itself established Booker knew
or should have known the victim’s car was occupied or that the
victim was injured. Id. The present case is distinguishable as the
victim was driving a motorcycle on a bridge, there was no evidence
presented that the victim or his motorcycle were obscured from
view, and both the victim and his motorcycle, as well as Appellant’s
vehicle, sustained substantial damage.
     In McGowan, the Fourth District held the State failed to prove
that McGowan knew or should have known that the accident
involved a person when McGowan was not the first vehicle to hit
the victim, other cars before him had not stopped, and testimony
established the victim could not have been seen given the dim
lighting conditions and the way the victim’s body flew up in the
air. 139 So. 3d at 938-39. Here, the State provided evidence that
Appellant should have seen the victim, and known the accident
involved a person. In addition, Appellant admitted in a jail phone
call that he had hit someone, “freaked out,” and kept driving.
      II. The trial court did not err in admitting into evidence the
                 recording from the trooper’s vehicle
     Appellant challenges the court’s admission of the recording
from the trooper’s vehicle. Appellant argues the recording
contained evidence of bad acts, uncharged collateral crimes, and
comments on Appellant’s silence which encouraged the jury to
render a verdict based on Appellant’s bad character or prior bad
acts, rather than whether the State proved his guilt for the crimes
charged. We disagree.
     First, we note that Appellant has not preserved his objections.
“[T]o raise an error on appeal, a contemporaneous objection must
be made at the trial level when the alleged error occurred.” Carr v.
State, 156 So. 3d 1052, 1062 (Fla. 2015) (citing J.B. v. State, 705
So. 2d 1376, 1378 (Fla. 1998). “If the court has made a definitive
ruling on the record admitting or excluding evidence, either at or
before trial, a party need not renew an objection or offer of proof to

                                  6
preserve a claim of error for appeal.” § 90.104(1), Fla. Stat. (2019).
However, failure to object in the trial court does not constitute a
waiver of the right to raise the issue upon appeal when the error
of the trial judge constitutes a fundamental error. Willard v. State,
386 So. 2d 869, 871 (Fla. 1st DCA 1980). Fundamental error is
error that “reach[es] down into the validity of the trial itself to the
extent that a verdict of guilty could not have been obtained without
the assistance of the alleged error.” Carr, 156 So. 3d at 1063
(quoting Archer v. State, 934 So. 2d 1187, 1205 (Fla. 2006)).
     Here, Appellant objected to parts of the recording through his
motion in limine and reaffirmed those objections at trial by stating,
“[j]ust with previous objections.” Appellant made no other
objections during or after the presentation of the recording, and
did not move for mistrial. Appellant was not required to renew the
objections concerning the portions of the recording listed in the
motion in limine, and those issues have been preserved for
appellate review. However, Appellant’s argument regarding his
repeated use of profanities, threat to urinate, and the comment on
Appellant’s silence was not included in the motion in limine, and
Appellant did not make a contemporaneous objection. Accordingly,
Appellant has not preserved the issues regarding his use of
profanity, threats to urinate, and the comment on Appellant’s
silence.
     We further hold that the admission into evidence of the
redacted recording did not constitute fundamental error. “For an
error to be so fundamental that it may be urged on appeal though
not properly preserved below, the asserted error must amount to a
denial of due process.” Castor v. State, 365 So. 2d 701, 704 n.7 (Fla.
1978). The State introduced the recording as evidence of
Appellant’s intoxication, an element of DUI Manslaughter. In
addition, the comment regarding Appellant’s invocation of his
right to remain silent was to inform the second officer that he could
not ask Appellant any questions. The admission of Appellant’s
actions and statements as well as the statement regarding
Appellant’s silence did not create any error to the extent that a
guilty verdict could not have been obtained without the assistance
of the alleged error. See F.B. v. State, 852 So. 2d 226, 229 (Fla.
2003). Thus, the trial court did not err by admitting the recording
into evidence.

                                  7
     And even if the issues had been preserved, the trial court did
not abuse its discretion. Appellant alleges the recording shows him
threatening the officers and threatening to kick the window of the
patrol car, which constitutes bad acts and uncharged collateral
crimes. But, “collateral-crime evidence, such as bad acts not
included in the charged offenses, is admissible when relevant to
prove a material fact in issue, but is inadmissible when the
evidence is relevant solely to prove bad character or propensity.”
Wright v. State, 19 So. 3d 277, 291-92 (Fla. 2009)(emphasis
supplied). The admission of collateral-crime evidence is not
considered Williams-rule evidence when it is inextricably
intertwined with the charged offenses. Id. at 292. Evidence of other
bad conduct may be admitted as inextricably intertwined with the
charged offense when it is “a relevant and interwoven part of the
conduct that is at issue.” Id. (emphasis supplied).
     Here, Appellant’s behavior, demeanor, words, and acts are
relevant to establish the material fact of impairment at the time of
the crash, an element of the crime of DUI Manslaughter. §
316.193(1)(a), Fla. Stat. (2019). Accordingly, the inclusion of
evidence of Appellant’s conduct was relevant to show impairment
and was inextricably intertwined with the DUI Manslaughter
charge. Thus, the trial court did not err in admitting the recording,
and did not abuse its discretion. See Dorsett v. State, 944 So. 2d
1207, 1216 (Fla. 3d DCA 2006) (holding where evidence of a prior
drug transaction went towards a material issue in dispute, there
was no abuse of discretion in admission of the evidence).
       III. The trial court properly assessed victim-injury points
     Appellant argues the 120 victim-injury points for death on the
Criminal Punishment Code Scoresheet were assessed in error as
the evidence did not show, and the jury did not find, that the death
of the victim was the direct result of any of Appellant’s crimes or
convictions in this case.
     “[T]he decision of a trial court to impose victim-injury points
is subject to an abuse-of-discretion standard.” Sims v. State, 998
So. 2d 494, 504 (Fla. 2008) (citation omitted). “Victim injury shall
be scored for each victim physically injured during a criminal
episode or transaction, and for each count resulting in such injury
whether there are one or more victims.” Fla. R. Crim. P.

                                 8
3.701(d)(7). “Points for victim injury [are] added for each victim
injured during a criminal transaction or episode. The injury need
not be an element of the crime for which the defendant is convicted,
but is limited to physical trauma.” Florida Rules of Criminal
Procedure Re: Sentencing Guidelines (Rules 3.701 & 3.988), 522 So.
2d 374 (Fla. 1988). The supreme court clarified that the “direct
result” language included a causation element linking the death of
the victim and the charged offense. Sims, 998 So. 2d at 505. A
conviction under “vehicular homicide or any other offense in which
the crime actually involved the impact that caused the death . . .
would have satisfied the causation requirement for the imposition
of victim-injury points.” Id. Here, Appellant was charged with DUI
manslaughter, which satisfies the causation requirement as it
links the death with the charged offenses. Therefore, the victim-
injury points were properly assessed.
    AFFIRMED.
LEWIS and ROBERTS, JJ., concur.
               _____________________________

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


Andy Thomas, Public Defender, Danielle Jorden, Assistant Public
Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.




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