       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           MICHAEL RADLER,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-1737

                           [February 12, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 15-13072CF10A.

  Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   Michael Joseph Radler (“Defendant”) appeals his conviction and
sentence for misdemeanor battery after a jury trial. We affirm the trial
court’s denial of a request for a jury instruction on the justifiable use of
deadly force without further comment. However, we find the trial court
erred by refusing to: (1) instruct the jury on the justifiable use of non-
deadly force; and (2) permit a proffer of evidence. Accordingly, we reverse
and remand for a new trial.

                               Background

   Charged with aggravated battery, Defendant proceeded to a jury trial.
The only eyewitnesses to the events who testified at trial were the victim
(“Victim”) and Defendant. Because the two issues we address revolve
around Defendant’s version of the events, we begin with a summary of his
version followed by Victim’s version.

   Defendant went to his girlfriend’s hotel room where he saw her drinking
with a female friend, Victim’s sister. The two females were drunkenly
shaving a dog to the point of hurting the dog. When Defendant tried to
intervene, an argument ensued between Defendant and Victim’s sister.
The sister said she was going to call her brother to come to the room,
whereupon Defendant said he was leaving to avoid any conflict. As
Defendant left the room, he saw the sister using her cellphone.

    As Defendant was walking away from the hotel room through a parking
lot, he saw Victim approaching him. He had never seen Victim before, but
assumed it was the sister’s brother. Defendant shouted at Victim to stay
away and mind his own business. Victim continued to proceed towards
Defendant, despite his repeated protests. Defendant described Victim as
a “big guy,” standing five feet, eleven inches tall, and weighing 270 pounds.
Defendant was particularly concerned about Victim’s silence as he
approached. When Victim was an arm’s length away from him, Defendant
was cornered between Victim and a fence. Defendant continued to insist
that Victim leave him alone.

    When Victim finally stopped, he “took a stance like he was squaring
off.” Defendant demonstrated the stance to the jury, which was described
as a “squat stance.” Defendant testified that as he was assuming his
“squat stance,” Victim “went to go hike up his shorts that he was wearing.
And when his hands went behind his back, I don’t know if he’s reaching
for a weapon. I don’t know . . . if he has a knife.” Out of fear of what
Victim might do, Defendant said he gave into the “[h]uman instinct to
protect myself” and punched Victim in the mouth one time.

   On cross-examination, Defendant admitted that Victim never said
anything to him, did not raise his hand or arm as if to strike him, and
Defendant never saw a weapon.

   Victim gave a very different account of the events. He was sitting
outside at the hotel when he saw his sister frantically waving at him to
come over to her. He next saw Defendant coming towards him, taking off
his jewelry as he was walking. This made him think Defendant was coming
to hit him. As Defendant approached, the two greeted each other. At that
moment, Defendant’s girlfriend ran up to Defendant, told him to stop, and
slapped him. Wanting to avoid any involvement in the altercation, Victim
turned to leave but, as he turned away, Defendant punched him in the
side of the face. He tried to get away, but Defendant punched him twice
more in the back of the head. He had never spoken to Defendant before
this incident, did not hit him, did not threaten him, and did not have a
weapon.



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Additional Background

   After Defendant explained what he saw in the hotel room, his attorney
asked him what his response was to that scene. At that point, the State
objected on relevance grounds, and the trial court sustained the objection.
Defense counsel requested to proffer what Defendant would testify. The
court granted the request, and the jury left the courtroom. Defendant
answered the question and stated he was disturbed by the scene, saw
empty bottles of alcohol, and asked Victim’s sister to leave. Based on this,
the court determined that nothing Defendant proffered “ha[d] any bearing
on any issue in this case.” Defense counsel attempted to argue that it was
inextricably intertwined because it went to “why he left the room and was
headed in that direction [referring to the parking lot].” The court rejected
the argument, maintaining it was irrelevant to the issue at trial. Defense
counsel objected, arguing the proffer supported the defense’s self-defense
theory.

  After the jury returned to the courtroom, defense counsel resumed
questioning, during which the following exchange occurred:

      [DEFENSE COUNSEL]: Okay. So —— And is it —— is it ——
      Did you leave your hotel room after you seen what you saw?

      [DEFENDANT]: It was because [Victim’s sister] said that she
      was going to call her brother ——

      [DEFENSE COUNSEL]: Okay.

      [DEFENDANT]: —— to come to the hotel room.

      [DEFENSE COUNSEL]: Okay.

      [DEFENDANT]: And I said I didn’t want any conflict. I said I’ll
      leave.

      [DEFENSE COUNSEL]: Okay. So —— So, what did you
      observe [Victim’s sister] doing?

      [DEFENDANT]: She got on her ——

      [PROSECUTOR]: Judge, I’m going to ——

      [THE COURT]: This is inside ——


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[PROSECUTOR]: —— object.

THE COURT:    This is inside the room?

[DEFENSE COUNSEL]: Yes.

[DEFENDANT]: Yes.

THE COURT:    Okay. Same ruling as before, Mr. [DEFENSE
COUNSEL].

[DEFENSE COUNSEL]: Okay.

THE COURT:    Next question.

[DEFENSE COUNSEL]: I — I need to make my argument. It
goes into —

THE COURT:    No, sir.

[DEFENSE COUNSEL]: I need to make my argument.

THE COURT:    I’ve already ruled. I’ve already ruled. Next
question.

[DEFENSE COUNSEL]: Well, I need to proffer.

THE COURT:    No, sir.

[DEFENSE COUNSEL]: I need to proffer. I need to -

THE COURT:    You just did that five minutes ago.

[DEFENSE COUNSEL]: I need to proffer, Judge ——

THE COURT:    Okay. Next question ——

[DEFENSE COUNSEL]: —— in order to preserve the record

THE COURT:    —— Mr. [DEFENSE COUNSEL].

[DEFENSE COUNSEL]: Okay.



                               4
      [DEFENSE COUNSEL] [continuing with examination]: So,
      you walk outside?

      [DEFENDANT]: Correct

      ....

      [DEFENSE COUNSEL]: All right. So - and do you know who
      she was on the phone with?

      [DEFENDANT]: She said that she was calling her brother.

      [DEFENSE COUNSEL]: Okay. And her brother would be
      [Victim], right?

      [DEFENDANT]: Correct

The remainder of Defendant’s testimony dealt with the subsequent battery
after he walked out of the hotel room.

   At the charge conference, defense counsel requested a jury instruction
on the justifiable use of both deadly and non-deadly force. The trial court
denied both requests. Relying on Thomas v. State, 118 So. 22 (Fla. 1928),
the trial court reasoned Defendant’s evidence merely supported his
subjective state of mind and did not support any evidence that “a
reasonably, cautious, and prudent person . . . under the same
circumstances would have believed that danger could be avoided only
through the use of that force.”

   The jury rendered a verdict finding Defendant guilty of the lesser
included offense of battery. After being adjudicated guilty and sentenced,
Defendant gave notice of appeal.

                            Appellate Analysis

Jury Instructions

   The standard of review governing a trial court’s decision to give a
standard jury instruction is abuse of discretion. Stephens v. State, 787
So. 2d 747, 755 (Fla. 2001). “[D]iscretion is abused only where no
reasonable man would take the view adopted by the trial court.”
Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (quoting Delno
v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942)). “However, the trial
court’s discretion in criminal cases is rather narrow because a criminal

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defendant is entitled to have the jury instructed on his or her theory of
defense, if there is any evidence to support this theory, no matter how
weak or flimsy.” St. Pierre v. State, 228 So. 3d 583, 585–86 (Fla. 4th DCA
2017) (internal citations and quotations omitted).

   Defendant contends the trial court erred by refusing to instruct the jury
on the justifiable use of non-deadly force, contending his testimony met
the “any evidence” standard for giving the self-defense instruction. We
agree.

   “Failure to give a standard jury instruction is reversible error when the
omitted standard jury instruction goes to the heart of the defendant’s
case.” Hosnedl v. State, 126 So. 3d 400, 403 (Fla. 4th DCA 2013) (quoting
Arboleda v. State, 645 So. 2d 48, 50 (Fla. 3d DCA 1994)). Although we
could find no case law that specifically addresses the standard to be
applied in assessing state of mind in the context of non-deadly force, we
agree with the State that, similar to the context of deadly force, “[t]he law
does not ascribe a subjective standard as to a defendant’s state of mind,
but concerns a reasonably prudent person’s state of mind.” Chaffin v.
State, 121 So. 3d 608, 612 (Fla. 4th DCA 2013) (quoting Reimel v. State,
532 So. 2d 16, 18 (Fla. 5th DCA 1988)). We also agree with Defendant
that “[t]he question of self-defense is one of fact, and is one for the jury to
decide where the facts are disputed.” Id. (alteration in original) (quoting
Dias v. State, 812 So. 2d 487, 491 (Fla. 4th DCA 2002)). Finally, we note
that “[t]he trial court should not weigh the evidence for the purpose of
determining whether the instruction is appropriate.” Calkins v. State, 170
So. 3d 888, 890 (Fla. 4th DCA 2015) (quoting Charles v. State, 945 So. 2d
579, 582 (Fla. 4th DCA 2006)).

   “Non-deadly force may be used when, and to the extent, that a person
reasonably believes that the use of non-deadly force is necessary to defend
oneself against the imminent use of unlawful force.” Hosnedl, 126 So. 3d
at 403 (citing Michel v. State, 989 So. 2d 679, 681 (Fla. 4th DCA 2008)).

   Defendant relies heavily on Wagers v. State, 199 So. 3d 1116 (Fla. 5th
DCA 2016), as support for his position. There, the only evidence
supporting a self-defense theory was the defendant’s girlfriend’s testimony
that the victim approached the defendant in “an aggressive way.” Id. at
1117. The trial court denied the request for a non-deadly force instruction.
Id. Even though it observed the evidence was “indeed sparse,” the Fifth
District reversed. Although the State attempts to distinguish Wagers by
pointing out that, here, Victim made no threatening statements and,
instead, was totally silent while approaching Defendant, we are not


                                      6
persuaded that Wagers is not instructive. Silent aggressive behavior can
be threatening.

    We also find Chavers v. State, 901 So. 2d 409 (Fla. 1st DCA 2005), to
be instructive. The defendant in that case was charged with discharge of
a firearm into an occupied vehicle. Id. at 410. The trial court refused to
give a justifiable use of force in self-defense instruction because there was
no evidence of any overt act which would reasonably cause the defendant
to believe he would be exposed to great bodily harm. Id. at 411. The
evidence showed that at approximately 10:30 p.m., three vehicles pulled
in front of the defendant’s residence but shortly thereafter the occupants
of the vehicles left, leaving behind a truck. Id. A half hour later, the
vehicles showed up again, and the defendant confronted the victim as he
was attempting to leave in the truck that was previously left behind. Id.
“When the victim began to drive away, [the defendant] emptied his revolver
into the truck’s front tire.” Id.

   The First District concluded that

      the evidence suggests that because of the unexpected arrival
      of three vehicles late at night in a darkened area in front of
      [the defendant’s] residence, and the movement of unknown
      persons, [the defendant] became fearful for his own safety,
      and was convinced that the possible theft of a truck was about
      to occur. This combined activity, occurring immediately before
      the discharge of the firearm, could be viewed by a jury as
      reasonably suggestive of a threat to a person in [the
      defendant’s] position.

Id. (emphasis added).

   Although the theory of justifiable use of force to protect property was
the defense in Chavers and the facts are significantly different from the
instant case, we are satisfied that analogous to the situation the defendant
in Chavers faced, it is the combination of activity leading up to and
occurring immediately before Defendant punched Victim that presented
sufficient evidence to reasonably suggest a threat to a person in
Defendant’s position that non-deadly force was needed for self-defense. It
was for the jury to decide if Defendant’s fear of harm was reasonable.

   We agree with Defendant that the reliance by the State and the trial
court on Thomas was misplaced. First, Thomas contains no discussion of
jury instructions given. 118 So. 2d at 23-24. Second, the facts are not
analogous to this case. In Thomas, although an altercation between the

                                       7
defendant and the victim occurred the day before the victim was shot and
killed, there was no indication of aggressive actions by the victim at the
time of the shooting, except for dropping his hand to the seat of the car in
which he was sitting. Id. It is the immediacy of Victim’s arguably
aggressive actions, as compared to the significant delay of time between
the victim’s actions in Thomas, that makes Chavers more instructive.

   Thus, we reverse the denial of the request for an instruction on
justifiable use of non-deadly force.

Denial of Proffer

   “The admission or exclusion of evidence is generally governed by the
abuse of discretion standard.” Willson v. Big Lake Partners, LLC, 211 So.
3d 360, 364 (Fla. 4th DCA 2017). Regarding proffers of evidence, we have
said:

      The primary purpose of a proffer is to include the proposed
      evidence in the record so that the appellate court can
      determine whether the trial court’s ruling was correct. A trial
      court commits error if it denies a request to proffer testimony
      which is reasonably related to the issues at trial. This is so
      because refusing to permit the proffer precludes full and
      effective appellate review.
      ....
      [R]efusal to permit a proffer is subject to a harmless error
      analysis. The burden, however, is on the state to establish
      beyond a reasonable doubt that the error complained of did
      not contribute to the verdict. Unless there is record evidence
      or argument of defense counsel revealing what the proposed
      proffer would have included, it is difficult, if not impossible, to
      say that the error was harmless.

Fehringer v. State, 976 So. 2d 1218, 1220-21 (Fla. 4th DCA 2008)
(internal citations omitted).

   Defendant argues the trial court erred in denying his second request to
proffer testimony as to what he observed as he left his girlfriend’s hotel
room. He contends that the denial left him with an appellate record that
is speculative as to whether relevant evidence was excluded. The State
argues that the question leading to the request to proffer related to what
Defendant “observed” as he was leaving the room; Defendant was able to
testify that he saw Victim’s sister using her cellphone, so there was no
need for proffer.

                                      8
    We disagree with the State’s argument that the question of what
Defendant “observed” as he was leaving the room was limited to visual, as
opposed to auditory, observation. We also agree with Defendant that the
trial court’s refusal to entertain the second proffer left him with offering
speculative arguments as to what he might have said in response to
questioning on proffer.

    We are satisfied that the trial court improperly assumed any further
evidence of what Defendant saw and heard as he was leaving his
girlfriend’s room was irrelevant. For that reason, we disagree with the
State’s argument that the denial of the second proffer was harmless error.
Because there is no record of the proffered evidence and defense counsel
was not permitted to even explain what the proposed proffer would have
included, it is impossible to say that the error was harmless.

                                Conclusion

   Having determined that the trial court improperly denied the request
for a jury instruction on the justifiable use of non-deadly force and the
request for a proffer of evidence, we reverse and remand for a new trial.

   Reversed and remand for new trial.

WARNER and TAYLOR, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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