Category Archives: Crimes

The Risks of an Entrapment Defense

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

A common defense (relatively speaking, that is) to charges of possession of controlled substances, dealing in controlled substances, and trafficking in controlled substances is that the person charged was entrapped by law enforcement into committing the crime. However, the defense is not without it’s risks.

How to Build an Entrapment Defense

There are two types of entrapment defenses. The first is objective entrapment. The second is subjective entrapment.

Florida Objective Entrapment

Objective entrapment is a defense based solely on the conduct of law enforcement. The defendant’s state of mind simply does not matter. Courts have held that objective entrapment occurs when law enforcement’s conduct is so egregious that the Due Process Clauses of the Florida and United States constitutions are violated. The defense is generally raised by a motion to dismiss filed and heard pretrial.

This type of entrapment is best explained by the use of examples. Objective entrapment can occur where law enforcement itself violates laws in order to get another person to break the law. This can occur, for example, when law enforcement uses drugs in an attempt to get another person to purchase and use the drugs in their presence. Another example that has been held to be objective entrapment is using a law enforcement officer to pose as a homeless individual passed out on the street. While supposedly passed out, they make it plainly visible that there are multiple hundreds of dollars in the person’s pocket. This induced someone to steal the money from the pocket.

This type of conduct should result in dismissal of the criminal charges.

Florida Subjective Entrapment

Subjective entrapment not only involves the conduct of law enforcement, but also involves the subjective state of mind of the defendant. In Munoz v. State, 629 So. 2d 90 (Fla. 1993), the Florida Supreme Court established that in asserting the defense of subjective entrapment, the defendant has the burden of showing that a government agent induced him to commit the charged offense and that he was not predisposed to commit it. If the defendant presents evidence of his lack of predisposition, the burden shifts to the State to rebut that evidence beyond a reasonable doubt.

In other words, the defendant must prove that the crime would not have occurred but for the conduct of law enforcement and that he was not otherwise inclined to commit such a crime. This is where the risk of the entrapment defense comes into play.

The Risk of the Entrapment Defense

In most criminal prosecutions, the State cannot introduce evidence of prior crimes. The most common exception occurs when the defendant testifies and the prior crime(s) was a crime of dishonesty and/or a felony. Actions that did not result in convictions do not come into evidence under this exception.

The other common exception is when Williams Rule evidence is introduced to prove (1) motive; (2) opportunity; (3) intent; (4) preparation; (5) plan; (6) knowledge; (7) identity; or (8) absence of mistake. With this exception, the prior conduct did not have to result in a conviction. This evidence is inadmissible when it is introduced solely to prove a defendant’s propensity to commit criminal acts.

However, when an entrapment defense is used, the prior bad acts are introduced to prove propensity. The State is allowed to make a searching inquiry into prior acts to rebut the defense’s proof that they were not predisposed to commit such a crime. Depending on the defendant, this may not be a road they want to travel.

In Harris v. State, 44 Fla. L. Weekly D2155b, (Fla. 5th DCA 2019), Harris tried to prevent, by motion in limine, the State from introducing prior allegations of drug dealing in a trial for trafficking in hydrocodone and methamphetamine. He argued that the prior acts should not be admitted because those charges were ultimately dismissed by the court. The trial court disagreed and Harris was convicted after trial. He decided not to testify and, therefore, not to present an entrapment defense, because of the ruling, and took the issue up on appeal.

However, the Fifth District Court of Appeal agreed with the trial court and held that the prior acts would have been admissible should Harris have testified that he was not predisposed to commit the crimes. It stated “evidence of prior crimes to rebut an entrapment defense is not limited to events resulting in a conviction. The state may prove predisposition with evidence of ‘the defendant’s prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activity, or his ready acquiescence in the commission of the crime. Here, the State was prepared to present testimony of a witness who had allegedly witnessed Harris’ participation in illegal drug sales in 2009. This evidence would have been relevant to the issue of whether Harris was predisposed to commit the instant offenses.

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There is not a “logical sequence of events” exception to hearsay

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

Contrary to what many prosecutors, and a few judges, believe, there is not an exception to the prohibition to the introduction of hearsay (an out-of-court statement entered into evidence for the truth of the matter asserted) when that hearsay statement is offered to prove a logical sequence of events. A common response to an objection to its introduction is that it is not offered for the truth of the matter asserted, i.e., it is offered to prove the effect on the listener. Or, in other words, it’s offered to explain why someone took a certain action.

However, when that’s the case and depending on the type of statement offered, it can be greatly more prejudicial than probative and, therefore, inadmissible under Fla. Stat. 90.403, or simply irrelevant and immaterial and, therefore, inadmissible under Fla. Stat. 90.401.

Case Law Support for Exclusion

Fortunately for trial lawyers like myself, we have some recent support from the 4th DCA that we can use to educate courts when arguing for the exclusion of this type of evidence. In Conyers v. State, 44 Fla. L. Weekly D1844b (Fla. 4th DCA 2019), the Court reversed Conyers’ conviction for trafficking by purchase of oxycodone for the improper introduction of such evidence. Here are the relevant facts from the case:

At trial, the undercover officer who conducted the drug buy testified that before the sting operation, a confidential informant told the officer that a six-foot-tall, heavy-set black male known as Angel, who drove a two-door red Ford F-150 pickup truck, was “interested in purchasing large quantities of prescription pills in the City of Hollywood.” The officer testified that the informant also gave him Angel’s phone number. With the description and phone number provided by the informant, the officer identified appellant as Angel and began his investigation.
Appellant objected to the officer’s testimony and moved for a mistrial. He argued that the officer’s testimony about the confidential informant’s comments about appellant was hearsay and improperly suggested that appellant had a propensity to purchase large amounts of opiates. The State argued that the statements were not hearsay because they were not offered for the truth of their content but were intended to show the effect on the listener, i.e., the police officer, who then opened an investigation.

As is clear from just these facts, the State doesn’t really want the jury to learn why the officer targeted Mr. Conyers, they want the jury to know that there is a person out there who wants to purchase drugs and that person is “Angel,” who is identified as Mr. Conyers. The statement is highly prejudicial and from someone whom the defense cannot cross-examine because he is not in court. Furthermore, it’s immaterial because why the officer targeted Mr. Conyers is irrelevant to the facts they must prove in order to garner a conviction. The better practice is for the testifying officer to simply say that he was acting on a tip or information received. State v. Baird, 572 So. 2d 904, 905 (Fla. 1990).

Fortunately for Mr. Conyers, the Fourth DCA followed Baird and vacated Mr. Conyers conviction and sentence (7 years Florida State Prison followed by three years of probation) and remanded his case for a new trial. The Court held:

In this case, the trial court erred in allowing the officer to give inherently prejudicial hearsay testimony regarding appellant’s alleged drug activity in the community. The State’s contention that this testimony was not hearsay is simply wrong. Even if the informant’s statements were not offered for their truth, they were irrelevant, because the police officer’s reason for investigating appellant was immaterial. See Baird, 572 So. 2d at 908. Moreover, the risk of unfair prejudice outweighed any probative value. The error was not harmless, see State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). Accordingly, we reverse the judgment of conviction and remand for a new trial.

Experienced Tampa Trial Lawyer

Adam Bantner can help you and/or your family if you’ve been charged with a crime. It’s important to have a trial lawyer on your side when doing batter in a court of law. Give us a call today for your free consultation. 813.397.3965.

Criminal Justice Legislative Update

Updates to Florida Criminal Justice Laws From 2019 Legislative Session

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

The 2019 Florida legislative session saw some significant changes to the criminal statutes. Some of these changes are significant (removing the requirement for a Youthful Offender sentence that a defendant be sentenced prior to their 21st birthday) while some make you wonder if it was really necessary (removing 1-year minimum mandatory for sale and distribution of horse meat).

Regardless, the reforms are mostly positive for those who practice in the world of criminal defense. I attempt to lay out most of the changes below.

Harm to Police Animals

SB 96: Increases the penalty from a third-degree felony to a second-degree felony for any person who intentionally and knowingly, without lawful cause or justification, causes great bodily harm, permanent disability, or death to, or uses a deadly weapon upon, a police canine dog, fire canine dog, SAR canine dog, or police horse.

Child-like Sex Dolls

SB 160: Makes it a third-degree felony to sell, distribute or possess with intent to sell or distribute a child-like sex doll. Makes possession of such a doll a first-degree misdemeanor.

Expansion of Eligibility for Veterans’ Court

SB 910: Adds individuals who are current or former United States Department of Defense contractors; and individuals who are current or former military members of a foreign allied country to those eligible Veterans’ Court Treatment Program

Texting and Driving

HB 107: Make texting and driving a primary offense, i.e., you can be pulled over for it. It also makes it offense to use a phone in any hand-held manner in a school or construction zone.

Many Changes in One Bill

HB 7125: An omnibus criminal justice bill that makes many changes. Some of the highlights are:

  • Reduces the driver’s license suspension for drug offense convictions from 1 year to 6 months. Suspension can be shortened upon drug abuse evaluation and completion of any recommended treatment. Additional, court “upon a finding of compelling circumstances,” may direct DHSMV to issue a business purpose only license.
  • A third conviction of Driving on a Suspended/Revoked License now will require at least 10 days in jail.
  • Removed minimum mandatory sentence of 1 year for offenses related to the sale and distribution of horse meat.
  • Raises the felony threshold for theft of food and lodging services from $300 to $1,000.
  • Removes driver’s license suspension penalty for offenses related to selling to and possession of alcohol by persons under 21 years of age.
  • Reduces possession of distilling materials from a felony to a misdemeanor.
  • Reduces penalties for possession of moonshine.
  • Increases the threshold for felony grand theft from $300 to $750.
  • Reduces from a felony to a misdemeanor the keeping of a gambling house.
  • Increases minimum mandatory weight thresholds for trafficking in hydrocodone
  • Allowing for expunction of charges dismissed due to lawful self-defense.
  • Allowing for automatic early termination of probation or conversion to administrative probation upon completion of at least half of term and all the special conditions of probation.
  • Creation of an alternative sanction program for first-time technical violators of probation provided certain eligibility requirements are met.
  • Creation of a community-based court program for certain misdemeanor offenses.
  • Allows persons to be sentenced as a youthful offender, so long as they otherwise qualify, so long as the crime was committed before they turned 21 years of age (prior requirement was to be sentenced before turning 21 years of age).
  • Deletes mandatory direct-file of certain juvenile offenders.

Do I Have to Do Field Sobriety Exercises?

You Can Say, “No,” to Field Sobriety Exercises

This is the short version of the standard FSEs. The officer will be looking for much than the simple completion of these exercises.

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

As a criminal defense and DUI attorney, one thing is certain to occur over and over again at social gatherings; someone will ask me whether they should take a breath test and should they perform field sobriety exercises if they’ve been pulled over by law enforcement and suspected of committing a DUI. While the scope of this post does not include an answer to the first part (however, short answer is don’t give them your breath, but there are many, many factors you should consider prior to making that decision), I will attempt to explain the law and response that will best help you and your attorney as you defend your DUI.

The Law of Field Sobriety Exercises in Florida

First, the law on this issue is by no means clear and settled throughout the State. In fact, the law sometimes seems to vary between courtrooms in the same County in the same Circuit! However, there seems to be some consistency in general principles in Hillsborough County.

First, if an officer does not possess reasonable suspicion of impairment, they cannot request a suspect to perform field sobriety exercises. If an officer possesses reasonable suspicion of impairment, then can request performance of field sobriety exercises but they cannot compel performance. Where an officer possesses probable cause of driving under the influence, an officer can compel performance of field sobriety exercises. State v. Carney, 14 Fla. L. Weekly Supp. 287a (Hillsborough Cty. Ct., 13th Cir., December 7, 2006). The Court in State v. McFarland, FLWSUPP 2702MCFA, (Fla. Broward Cty. Ct. 2017), affirmed by State v. McFarland, 26 Fla. L. Weekly Supp. 546a (Fla. 11th Cir. Ct. 2018), agreed with the Carney analysis.

Next, for the purpose of this article, you don’t need to concern yourself with whether you believe the officer possessed reasonable suspicion of DUI, probably cause of DUI, or neither. These are legal conclusions that law enforcement, attorneys, and judges can and do get wrong. What you do need to know is that a refusal to perform the requested exercises will only be used against you in court if the officer possesses at least probable cause of DUI. If the officer possesses any level of suspicion less than probable cause, the request to perform the exercises is just that, a voluntary, consequence-free choice with the ability to say, “no.”

Now, should you say “no”?

Don’t Do The FSEs!!!

There are a myriad of reasons why one should not perform the field sobriety exercises; we are just going to focus on a couple of them.

One, if the officer is asking you to do the exercises, there is little to no chance that your performance on the exercises will dispel any suspicion of DUI by the officer. At this point in the investigation, he is in the evidence gathering phase and he is looking to build his or her case against you. In sum, you’re taking a ride to county jail regardless of your performance.

Second, you are, most likely, not going to do well on the exercises. The first test, the Horizontal Gaze Nystagmus, or “HGN,” is the most reliable by the scientific evidence but also the hardest to independently verify. Any recorded video will not show your performance. As such, the officer’s report of your performance is almost unassailable if he performed it to standards. Also, there are other factors that can cause nystagmus in addition to consumption of alcohol (fatigue, allergies, etc.).

The second and third tests, the Walk and Turn and One-Leg Stand, are also problematic. For most of the public, any performance of these exercises are likely your first attempts at either. Did you hit a homerun in your first little league at bat? Most likely not. Furthermore, the officer is not looking for simple completion. He is looking for clues that indicate impairment of which you will not be aware. For example, if you walk the line without falling, you may think you passed. However, if you raised your arms more than six inches, you missed heel-to-toe by more than an inch, you turned improperly, or you started early, you showed impairment. Also, you will be performing these, most likely, late at night, roadside, and under the stress of an impending arrest. Again, you are not likely to do well.

All this leads to the nearly inescapable conclusion that the rewards of a good performance are greatly outweighed by the dangers of poor performance. So when the officer asks, “Will you take these tests?” politely decline citing this article and your fears that the stress of the situation would cause you to perform poorly.

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After the officer arrests you (because his mind was made up to do so the moment he made the request), bond out of jail and give us a call. We’d love to help! 813.397.3965.

Can a Urine Test be Compelled?

Those who regularly practice DUI defense are very familiar with the Implied Consent law and how it impacts our client’s cases. Essentially, Implied Consent requires “any person who accepts the privilege … of operating a motor vehicle within this state … to have given his or her consent to submit to …  a test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath…” Any person who refuses such test after being lawfully arrested is subject to a year-long driver’s license suspension for a first refusal or a 18-month suspension and misdemeanor crime for a second or subsequent refusal. Fla. Stat. 316.1932(1)(a)1.a. The courts have found this to be legal.

Birchfield v. North Dakota

However, the courts look at urine and blood draws slightly different. In 2016, the U.S. Supreme Court in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) held that a warrantless breath test may be administered as a search incident to a lawful arrest, but a more intrusive blood test may not. But how does this effect the Implied Consent Law as it relates to a request for urine?

Request for Urine Test

The Implied Consent law with regards to urine is almost identical to the law with regards to breath. “Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of chemical substances or controlled substances.”

The penalties for refusal are identical and the only difference is that the request to test requires probable cause to believe that the person is under the influence of a controlled substance as opposed to alcohol. But is this process still legal after Birchfield?

State v. Riddle

At least one court has answered that question in the negative. In State v. Riddle, a Sarasota County Court Judge held that a urine test was akin to a blood test and that it could not be compelled under Implied Consent. State v. Riddle, 26 Fla. L. Weekly Supp. 148a (Fla. Sarasota Cty. Ct. 2018).

In Riddle, the Defendant only consented to a test of his urine after having taken a breath test (.049 and .051 results), initially refusing the urine test, having Implied Consent read to him, and then consenting to the test (cocaine found in his system). 

The Court found his consent involuntarily given and suppressed the results of the test. “Mr. Riddle’s consent cannot be said to have been given freely and voluntary, because he was told that he must consent or face the consequences that included the threat of being charged with a separate crime for refusing. The Supreme Court has held that drivers do not impliedly consent to a blood test. Minnesota, North Dakota and South Dakota have recently ruled that the same rule of law applies to urine testing.

The Deputy’s reading of implied consent and the consequences of refusal effectively made Mr. Riddle’s consent involuntary. The State has failed to demonstrate under the totality of the circumstances standard that the consent was freely and voluntarily made.”

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The Outer Limits of an Aggravated Assault Charge

By: Adam L. Bantner, II, Board Certified Criminal Trial Law Attorney

An “assault” is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Fla. Stat. 784.011. Simple assault is a second-degree misdemeanor punishable by up to 60 days in county jail. As such, an assault is composed of three elements: (1) an intentional, unlawful threat by word or act; (2) an apparent ability to carry out the threat; and (3) creation of a well-founded fear that violence is imminent.

 

For a person to be convicted of an assault, there needs to be an intentional threat towards the victim. When considering this element, the focus is on the perpetrator’s intent and “not the reaction of the person perceiving the word or act.” Benitez v. State, 901 So. 2d 935, 937 (Fla. 4th DCA 2005). J.S. v. State, 207 So.3d 903 (Fla. 4th DCA 2017). In J.S., the Court overturned the adjudication of delinquency because the defendant’s act of pulling out a pellet gun, while he was on the ground, was not intended as a threat to the victim, who was brandishing his firearm.

 

In February 2018, the First DCA decided Williams v. State, 43 Fla. L. Weekly D496a (Fla. 1st DCA 2018). Williams seems to stretch its logic in deciding the Williams threatened his two victims so that he committed an Aggravated Assault (he was using a firearm at the time of the alleged assaults). Here are the facts relevant to the assaults (Byrd and Dixon are the alleged victims of the assaults and Howard is the victim of an attempted murder):

 

The jury heard evidence that Williams told Howard he wanted to kill him “so bad” he could “taste it.” Around the same time, Williams said of Dixon and Byrd: “If those two motherfuckers want to stand right there I’ll kill your ass. I know them two bitches going to put me in prison.” Williams then started shooting in several directions — not just towards Howard — striking a fence, a gate, a chair, and a house. At some point, Byrd confronted Williams, trying to convince Williams to stop. Williams responded with a racial slur and a demand that Byrd “shut the hell up.” Byrd and Dixon both hid behind a vehicle until Williams rode away on his bicycle.

 

                From these facts, the Court decided that the statement “shut the hell up” coupled with the prior acts of firing the gun, was actually a threat to harm Byrd if he continued talking and not a mere request to be quiet. With regards to Dixon, the Court even admitted that they could not discern Williams’ intent with regards to Dixon, but nonetheless held that a reasonable jury could find that Williams threatened Dixon by stating that he would kill Howard and that Dixon and Byrd would put him in prison. I’m not certain how they got there, but they did.

 

                The take away for Williams is that if a defendant is firing rounds at one person and makes any statement to other people in the area, there’s a chance that he or she could be convicted of Aggravated Assault with regards to the people to whom he or she was talking. For Williams, it didn’t really matter as his aggravated assault sentences were concurrent to his 30-year sentence for the attempted murder of Howard, but the practitioner needs to be aware that bystanders to a crime have a chance to become victims as well under the logic of Williams.

Possession of Recently Stolen Property

By: Adam L. Bantner, II

The Bantner Firm

Board Certified Criminal Trial Law Attorney

Candidate for Hillsborough County Court Judge, Group 2

 Typically, the decision to put your client on the stand at trial involves numerous considerations such as how he/she will present to a jury, his or her criminal history, the skill of the prosecutor, the need to rebut State evidence, the need to present an affirmative defense. There is one occasion when it is almost always a good idea: to rebut the inference arising from possession of recently stolen property.

To prove theft, the State must prove beyond a reasonable doubt that:

  1. Defendant knowingly and unlawfully obtained or used or endeavored to obtain or to use the property of the victim, and
  2. He or she did so with intent to, either temporarily or permanently deprive the victim of his or her right to the property or any benefit from it.[1]

Fla. Stat. ⸹ 812.022(2) provides, in material part, that “…proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” The inference provided by section 812.022(2) is sufficient to support a theft conviction without any other evidence. See Smith v. State, 742 So. 2d 352, 354-55 (Fla. 5th DCA 1999).

The key phrase of the presumption, for this article, is unless satisfactorily explained. In theory, the defense could provide an explanation from a person not the defendant. For example, let’s suppose the defense is that the defendant bought the property from a third party and lacked knowledge of the property being stolen. The third party could testify that he witnessed the transaction. Any statements made during the transaction should be admissible as they are not offered for the truth of the matter asserted but to explain possession and defendant’s state of mind.

However, based on caselaw, if the State lacks any other evidence of guilt, the most surefire method to obtain a judgment of acquittal would be to put the defendant on the stand. In C.T. v. State, 42 Fla. L. Weekly D2510a, (Fla.3d DCA 2017), the Court quoted Smith v. State, 742 So. 2d 352, 355 (Fla. 5th DCA 1999) and stated that “where a reasonable explanation for possession of recently stolen property is totally unrefuted, and there is no other evidence of guilt, the court must grant a directed verdict for the defendant.” The Second DCA takes the same position in Coleman v. State, 466 So. 2d 395, 397 (Fla. 2d DCA 1985) (“[T]he rule is that where a defendant gives a patently reasonable explanation for his possession of recently stolen goods which is totally unrefuted, and there is no other evidence of guilt, the court must direct a judgment of acquittal.”

Before rushing to put your client on the stand armed with these cases, be certain that the State doesn’t possess other evidence of guilt that would allow the court to deny your motion for judgment of acquittal. Some evidence for which to be on the lookout includes evidence of damage to the vehicle indicating a break-in, flight from law enforcement, conflicting explanations by defendant to law enforcement, or that it was purchased at a price substantially below market price.

Assuming evidence such as that mentioned does not exist, go ahead, put your client on the stand and get that JOA!

[1] Fla. Standard Jury Instructions in Criminal Cases, 14.2