       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           BRANDON THORNE,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D12-4028

                            [ August 19, 2015 ]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; William Roby, Judge; L.T. Case No. 432009CF001530B.

  Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
Fourth District, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchel A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

BOORAS, TED, Associate Judge.

   Appellant, Brandon Thorne, was acquitted of first degree murder and
robbery with a weapon while wearing a mask, but was found guilty of being
an accessory after the fact to these crimes. Appellant argues that the trial
judge committed fundamental error when he gave the jury a laptop with
videos of appellant’s statements to review in the jury room during
deliberations, without being present during the jury’s playback of the
statements. We disagree and affirm.

   A trial court’s determination on whether to permit the jury to take
materials into the jury room is reviewed on appeal for abuse of discretion.
Partin v. State, 82 So. 3d 31, 43-44 (Fla. 2011).

   Appellant relies upon case law involving violations of a defendant’s
fundamental right to the presence of the judge during trial. See, e.g.,
Bryant v. State, 656 So. 2d 426, 428 (Fla. 1995) (“The presence of a judge,
who will insure the proper conduct of a trial, is essential to the state and
federally guaranteed rights of trial by an impartial jury.”); Brown v. State,
538 So. 2d 833, 836 (Fla. 1989) (“[C]ommunications from the jury must
be received by the trial judge in person and … the absence of the judge
when a communication is received and answered is reversible error.”).

   Appellant’s argument is inapplicable to the case at bar. This was not a
case where the judge was absent during a readback of testimony or during
a communication with the jury. Here, the jury’s review of videos of
appellant’s statements occurred during the jury’s private deliberations, not
during a part of the trial where the judge’s presence was mandatory.

    Florida Rule of Criminal Procedure 3.400(a)(3) states that “[t]he court
may permit the jury, upon retiring for deliberation, to take to the jury room
… all things received in evidence other than depositions.” Additionally,
Florida courts have held that nontestimonial exhibits with some verbal
content generally are allowed to go into the jury room during deliberations.
See Young v. State, 645 So. 2d 965, 967 (Fla. 1994) (“[B]ecause written
confessions traditionally have been permitted in the jury room, most
courts have held that the trial judge has the discretion to allow jurors to
listen to audiotapes of confessions during their deliberations.”).

    Following Young, appellate courts have held that a trial court’s decision
to allow the jury to have access to the defendant’s videotaped confession
in the jury room is not an abuse of discretion. See Lucas v. State, 34 So.
3d 195, 196 (Fla. 1st DCA 2010); Thomas v. State, 878 So. 2d 458, 459
(Fla. 5th DCA 2004). Thus, the trial court properly acted within its
discretion when it permitted the jury, during deliberations, to take to the
jury room a laptop containing appellant’s videotaped statements, which
had been entered into evidence.

   Appellant’s reliance on this court’s opinion in Harbaugh v. State, 711
So. 2d 77 (Fla. 4th DCA 1998), is misplaced. There, we reversed the
defendant’s DUI conviction, holding that the attorneys’ playing of a
videotape of the traffic stop for the jury during deliberations was part of
the trial at which the judge’s presence was mandatory. We explained that
“a trial judge is required to be present at any aspect of the trial where the
lawyers or the parties are in extended contact with the jury, unless the
defendant himself makes a sufficient waiver on the record of the judge’s
presence.” 711 So. 2d at 80 (emphasis added). Although we acknowledged
that videotapes entered into evidence may properly be taken into the jury
room under rule 3.400, we explained that the rule “does not contemplate
that the lawyers would be in the jury room with the jurors handling the
evidentiary items to which the rule applies.” Id. at 81. Here, the lawyers
did not go into the jury room to play any videos or otherwise handle any
evidentiary items for the jury.

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    In this case, the trial judge was never absent from any aspect of the
trial where the lawyers or the parties were in extended contact with the
jury. We therefore find that the trial court’s decision to allow the jury to
have access to appellant’s videotaped statements in the jury room during
its private deliberations was within the court’s sound discretion.

    As to the remaining issue raised by appellant, we affirm the admission
of the evidence of collateral acts without further comment.

   Affirmed.

CIKLIN, C.J., and CONNER, J., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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