        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          MICHAEL P. OPSINCS,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D13-3147

                           [ February 10, 2016 ]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; William L. Roby, Judge; L.T. Case No. 432011CF000114A.

  Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina
Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for
appellee.

TAYLOR, J.

    This criminal case has its genesis in a tragic automobile accident that
killed an 11-year-old girl and injured several other people. Appellant,
Michael Opsincs, appeals his convictions for the following offenses arising
out of that accident: one count of vehicular homicide, one count of reckless
driving causing serious injury, and seven counts of reckless driving
causing injury or damage. We find that the trial court properly denied
appellant’s motion for judgment of acquittal. However, we are compelled
to reverse for a new trial because we conclude that the trial court abused
its discretion in admitting irrelevant and unfairly prejudicial evidence that,
shortly after the accident, appellant said “shit happens” when being
confronted by witnesses at the scene.

   The essential facts are as follows. Appellant drove through an
intersection, hit a Honda car that was turning left, and split the Honda
into two pieces. The State presented testimony that the Honda had the
green light.
   The Honda had five occupants—an adult driver, his 9-year-old son, 11-
year-old daughter, and 3-year-old twins. As a result of the accident, the
driver’s 11-year-old daughter died, one of the twins was seriously injured,
and the driver and his other two children were also injured. The rear part
of the Honda hit another car, damaging that car and injuring its two
occupants.

   The accident occurred at about 7:00 p.m. in the evening. It had been
raining that day, and the roads were still wet. Shortly before reaching the
intersection, appellant had swerved through traffic in a zigzag pattern.

   One witness, who was driving on the opposite side of the road, saw
appellant approach the intersection at about 70-75 mph while looking
down. This witness testified that appellant ran a red light, went through
the intersection “with no brake lights whatsoever,” and struck the Honda.

    The speed limit was 50 mph. The State presented lay witness testimony
that appellant was driving at least 70 mph into the intersection. In
addition, the State’s expert calculated that appellant was driving 69 mph
at the time of impact.1 According to the State’s expert, the yellow light at
the intersection lasted five seconds, and the light for appellant would have
been red for nine seconds before the impact.

    After the accident, appellant repeatedly told people that his light was
green. According to one witness, some of the people at the scene started
to interact with appellant and “challenge him a little bit” about “what the
heck happened.” Appellant said “the light was green” and then told one of
the people challenging him, “Well, shit happens.”

   Before trial, appellant moved in limine to exclude evidence that in the
aftermath of the accident witnesses overheard him say “shit happens.”
Defense counsel argued that the statement was irrelevant to appellant’s
mindset at the time of the accident and that any probative value was
outweighed by its prejudicial effect. The trial court denied the motion in
limine, finding that the statement was relevant to appellant’s state of mind
and his alleged reckless disregard for others. The court further reasoned
that the statement could be considered a jocular boasting that was

1 By contrast, the defense reconstruction expert concluded that appellant’s car
was travelling 56 mph. He also explained that an untrained person’s estimate of
the speed of another vehicle can be flawed because it is affected by the observer’s
speed, the observer’s direction of travel, and whether the observer is looking in a
mirror. On cross-examination, however, he agreed that appellant’s light was red
before appellant went into the intersection.

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admissible under Jackson v. State, 530 So. 2d 269 (Fla. 1988).

    The prosecutor began closing argument by emphasizing appellant’s
“shit happens” statement: “Well, shit happens.        Those, ladies and
gentlemen, are the words that this defendant uttered on September 29th
of the year 2010. And why are those words . . . important? Because those
words express the reckless disregard he had for anybody that night.” The
prosecutor later mentioned the statement again in closing.

   The jury convicted appellant on every count as charged. This appeal
ensued.

   Denial of Judgment of Acquittal

  We first address appellant’s challenge to the sufficiency of the evidence.
Our review is de novo. Turner v. State, 29 So. 3d 361, 364 (Fla. 4th DCA
2010).

   “Vehicular homicide cannot be proven without also proving the
elements of reckless driving, which requires proof of a willful or wanton
disregard for the safety of persons or property.” Santisteban v. State, 72
So. 3d 187, 195 (Fla. 4th DCA 2011) (citations and quotation marks
omitted). “Speed alone” is insufficient to constitute reckless conduct
unless the speed is shown to be grossly excessive. Id. But excessive speed,
combined with other factors, can support a conviction for vehicular
homicide. See Pozo v. State, 963 So. 2d 831, 834 (Fla. 4th DCA 2007);
Hamilton v. State, 439 So. 2d 238, 238-39 (Fla. 2d DCA 1983).

   Here, the evidence in the light most favorable to the State permitted the
jury to find that appellant’s conduct was reckless. The State’s expert
testified that the speed limit was 50 mph and that appellant’s speed was
69 mph at the time of impact. The roads were wet from the rain earlier in
the day. Immediately before the accident, appellant swerved through
traffic, rapidly approached the traffic light while looking down and without
braking, and ran a light that had been red for nine seconds before impact.
Thus, there were additional factors regarding appellant’s driving, which
when combined with his speeding, provided sufficient evidence to
withstand the motion for judgment of acquittal.

   Appellant’s Statement After the Accident

   Appellant also argues that the trial court reversibly erred in admitting
evidence that he said “shit happens” when being confronted by witnesses
after the accident. He argues that the statement was irrelevant to whether

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he operated his motor vehicle in a reckless manner, and that the lack of
context for the statement makes it impossible to conclude that the
statement was boasting. We agree.

   A trial court’s decision on the admissibility of evidence is reviewed
under an abuse of discretion standard. Hudson v. State, 992 So. 2d 96,
107 (Fla. 2008). But a trial court’s discretion is limited by the evidence
code and the case law. Bearden v. State, 161 So. 3d 1257, 1263 (Fla.
2015).

   Relevant evidence is evidence tending to prove or disprove a material
fact. § 90.401, Fla. Stat. (2013). “In determining relevance, we look to the
elements of the crime charged and whether the evidence tends to prove or
disprove a material fact.” Johnson v. State, 991 So. 2d 962, 966 (Fla. 4th
DCA 2008). “When evidence is offered to prove a fact which is not a matter
in issue, it is said to be immaterial.” Jordan ex rel. Shealey v. Masters,
821 So. 2d 342, 349 (Fla. 4th DCA 2002) (quoting Charles W. Ehrhardt,
Florida Evidence § 401.1 (2001 ed.)).

   Even if evidence is relevant, it is inadmissible “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
issues, misleading the jury, or needless presentation of cumulative
evidence.” § 90.403, Fla. Stat. (2013). “The unfair prejudice that section
90.403 attempts to eliminate relates to evidence that inflames the jury or
appeals improperly to the jury’s emotions.” State v. Gerry, 855 So. 2d 157,
159 (Fla. 5th DCA 2003) (citations and quotation marks omitted).

    In a similar case stemming from a vehicular homicide prosecution, we
found that evidence of the defendant’s mental state after the accident was
not relevant to the issue of whether the defendant operated the motor
vehicle in a reckless manner. See Rubinger v. State, 98 So. 3d 659, 663
(Fla. 4th DCA 2012). In Rubinger, we held that the trial court abused its
discretion by admitting evidence of the defendant’s nonchalant behavior
after the fatal accident, including evidence that the defendant was fixing
her hair, applying makeup, and talking on her cell phone about getting to
a party. Id. at 661, 663. We explained that this evidence was not relevant,
as it “did not tend to prove that [the defendant] was driving recklessly at
the time of the accident.” Id. at 663. Furthermore, we reasoned that “even
if evidence of [the defendant’s] behavior after the accident did have some
relevance to the issues of the case, its probative value was far outweighed
by its prejudicial effect.” Id. We found that the error was not harmless, in
part because “during closing the State argued that [the defendant’s]
behavior after the accident, including her lack of concern for the victim,
was evidence of her recklessness in the operation of her vehicle.” Id.

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   The analysis in Rubinger is almost directly on point and controlling
here. In this case, the evidence that appellant said “shit happens” when
being confronted by witnesses at the scene of the accident established only
his mental state after the accident and did not tend to prove that appellant
was driving recklessly at the time of the accident.

   To be sure, as the State points out, “an admission from which guilt may
be inferred is not rendered inadmissible because of the fact that it is made
after the commission of the charged offense.” Erickson v. State, 565 So.
2d 328, 333 (Fla. 4th DCA 1990). Likewise, a defendant’s boastings about
the crime are both relevant and admissible. See Jackson v. State, 530 So.
2d 269, 272 (Fla. 1988) (the defendant’s jocular boastings to a detective
were admissions that fell under section 90.803(18), and were clearly
relevant to the defendant’s state of mind).

    Here, however, appellant’s statement was not an admission from which
guilt could be inferred. There is no evidence of exactly what was said to
appellant that prompted him to reply, “Well, shit happens.” Nothing in the
record would allow for the conclusion that “shit happens” was some sort
of admission that appellant was driving recklessly. Indeed, the statement
arose in the context of appellant’s attempts to deny responsibility for the
accident by claiming that he had the green light. Nor is there any basis in
the evidence to conclude that appellant’s statement was a form of “jocular
boasting.” Under the circumstances, no reasonable factfinder could
conclude that appellant was boasting about the accident when he said
“shit happens.” This case is therefore distinguishable from Jackson and
Erickson.

   Even if evidence of appellant’s statement after the accident did have
some relevance in the case, any probative value was substantially
outweighed by the danger of unfair prejudice. The probative value of the
statement, if any, was minimal. On the other side of the balancing test,
evidence that appellant said “shit happens” at the scene of an accident
that killed an 11-year-old girl was undoubtedly inflammatory. Such
evidence was unfairly prejudicial because it was designed to appeal to the
jury’s emotions by portraying appellant as callous and uncaring.
Therefore, the trial court abused its discretion by admitting evidence of
appellant’s statement after the accident.

   We conclude that the error was not harmless. See State v. DiGuilio, 491
So. 2d 1129, 1135 (Fla. 1986). Although the State presented evidence that
appellant was driving at an excessive speed, the degree to which appellant
was speeding was a contested issue. Moreover, similar to Rubinger, the

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prosecutor improperly suggested in closing argument that appellant’s “shit
happens” statement was proof of reckless driving: “[T]hose words express
the reckless disregard he had for anybody that night.” Thus, we find there
is a reasonable possibility that the error contributed to appellant’s
convictions.

   For the foregoing reasons, we reverse and remand for a new trial.

   Reversed and Remanded for a new trial.

WARNER and FORST, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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