NOT FINAL UNTIL TIME EXPIRES ________________________________TO FILE RE-HEARING MOTION,AND, IF FILED, DISPOSED OF. ________________________________

________________________________

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

APPELLATE DIVISION

CASE NUMBER: 131-151 AC

CASE BELOW: B12-7650

PEGGY HARRELL,

Appellant,

v.

STATE OF FLORIDA,

Appellee,

___________________________________/

HEARING ON:

Opinion Filed: __________________, 2014.

On Appeal from the County Court for Miami-Dade County, Florida, Dawn Denaro, Judge.

James Moody, for Appellant.

Adam Santana, for Appellee.

Before Tunis, Rebull, and Hirsch, JJ.

HIRSCH, J.

Peggy Harrell was arrested for driving under the influence. She was processed at a police

station, then informed that she would be transported to jail. Her conduct in response to being so

informed resulted in her conviction at trial for resisting a police officer without violence, Fla. Stat.

§ 843.02. From that conviction she now appeals.

I. Facts

The victims of, and eyewitnesses to, Ms. Harrell’s act of unlawful resistance were Officers

Jackson and Ramirez of the City of Miami Police Department. Both testified at length and in detail,

and their testimony was consistent one with the other.

Officer Jackson testified that when he told Ms. Harrell to place her hands behind her back

to be handcuffed, “she then snatches her arms away and starts using profane language and what she

started to do was to start tensing her arms and bringing them closer to her body.” (Tr. vol. 1 at 37.)

She was told to put her hands behind her back but insisted on “doing the opposite of that and . . .

bringing [her hands] closer to her body.” Id. She then threw herself to the ground, keeping her body

weight (apparently she is a person of some considerable adiposity (Tr. vol. 1 at 133)) on top of her

arms. (Tr. vol. 1 at 37, 76.) “So it made it very difficult for us . . . [c]ompared to [a] normal arrest

with you just ask somebody to put your hands behind your back and they do so. This was resisting.”

Id. at 44 (describing defendant as “belligerent,” “disruptive,” “not listening to any [of the police

officers’] commands”).

Additionally, Officer Jackson gave this testimony:

Q: She tensed her body. Did she refuse to walk and follow you or wasshe at least doing that much?

A: She refused to walk. She refused to listen. This had beenthroughout the handcuffing process.

Q: At this point you are engaged in a lawful legal duty, correct,officer?

2

A: That’s correct.

Q: And you . . . were still in your full uniform at this point in time?

A: We are in full uniform.

(Tr. vol. 1 at 38.)

At some point during the course of her resistance, Ms. Harrell complained of chest pains. (Tr.

vol. 1 at 78.) Consistent with departmental policy (Tr. vol. 1 at 99), an ambulance was called and

Ms. Harrell was taken to Jackson Hospital.

Officer Ramirez’s testimony was of a piece with that of his colleague. He repeatedly

described Ms. Harrell as “argumentative,” “frustrated,” and “angry.” (Tr. vol. 1 at 110, 133.) In his

view, she willfully threw herself to the floor to prevent the police from handcuffing and transporting

her. (Tr. vol. 1 at 133–34.) He was permitted to opine that he saw nothing that indicated to him that

Ms. Harrell’s conduct was the product of a physical or medical problem, as opposed to a deliberate

attempt to frustrate the law’s processes. (Tr. vol. 1 at 154–55.)

At the close of the prosecution case the defense moved for judgment of acquittal. (Tr. vol. 1

at 157.) In support of the motion, defense counsel argued that the chest pains of which Ms. Harrell

complained indicated that, “this is not resisting[,] this is a case of [a] woman having a panic attack

perhaps. I mean I am not a doctor. I am not a paramedic, and neither of [sic; are] those officers.” (Tr.

vol. 1 at 158–59.) The defense motion was denied.

The defense then rested without presenting any case, and renewed its motion for judgment

of acquittal. (Tr. vol. 1 at 162–63.) Argument in support of the renewed motion was brief, consisting

largely of the assertion that reasonable doubt existed. Id. In the course of this argument, defense

counsel made the statement, “This is circumstantial evidence.” (Tr. vol. 1 at 162.) The antecedent

3

of the “this” to which counsel meant to refer is unclear. Perhaps defense counsel meant to assert that

much of the evidence as to the charge of DUI (as to which charge Ms. Harrell was in any event

acquitted by the jury) was circumstantial. As discussed infra at 8–10, all the material evidence

against Ms. Harrell on the charge of resisting without violence was direct, not circumstantial.

The defense made no request that the jury be instructed on the common-law circumstantial

evidence rule. (Tr. vol. 1 at 164 et. seq.) The trial court gave the jury the standard instruction on

resisting without violence. (Tr. vol. 2 at 5–6.) There was no defense objection or request for any

supplemental instruction.

On appeal, Ms. Harrell argues that the case against her was, at least as to evidence of mens

rea, circumstantial; that the common-law circumstantial evidence rule was therefore applicable; and

that, by application of that rule, the trial court should have granted judgment of acquittal. Although

we give Ms. Harrell’s appellate counsel high marks for their ingenuity, we are obliged to reject this

argument in all its particulars.

II. Analysis

A. Circumstantial evidence and the common-law circumstantial evidence rule

Our common-law forebears were, in at least one important respect, more humble than we are.

They were more ready to acknowledge the limits of their ability to know or to prove anything to a

level of certainty upon which reliance could be placed. This epistemological modesty is the impulse

behind the common-law circumstantial evidence rule.1

1 No better example could be offered than an excerpt from the closing argument of JohnMarshall, appearing as counsel in what has been described as Virginia’s most famous eighteenth-century criminal proceeding. In Commonwealth v. Randolph, heard in Cumberland County Courton April 29, 1793, the scandalous allegation was made that Richard Randolph had impregnated his16-year-old sister-in-law Nancy, then assisted her in killing the baby by either aborting the fetus or

4

Circumstantial evidence is, after all, by its very nature always amenable to more than one

interpretation.2 Thus the circumstantial evidence rule: Where the evidence against a criminal

murdering the newborn infant. The evidence was entirely circumstantial: Richard and Nancy’sreputedly unusual public displays of affection, Nancy’s possible appearance of pregnancy, thepurchase of a medication calculated to induce abortion, Nancy’s refusal to be seen unclothed by herfemale family members or by a midwife. In the course of his argument to the court, the future chiefjustice offered this elegantly phrased application of the common-law circumstantial evidence rule:

The friends of Miss Randolph cannot deny, that there is somefoundation on which suspicion may build; nor can it be denied by herenemies but that every circumstance may be accounted for withoutimputing guilt to her. In this situation candor will not condemn orexclude from society a person who may be only unfortunate.

R. KENT NEWMYER, JOHN MARSHALL AND THE HEROIC AGE OF THE SUPREME COURT 85–87.

2 Of course direct evidence can lead to wrong conclusions too: an eyewitness may bemistaken or lying. But the sense in which circumstantial evidence, even when testified to by a well-intentioned witness, may lead to mistaken conclusions, is sometimes illustrated for juries by meansof the following trial-lawyer’s anecdote:

In the days when traveling salesmen drove Model-T Fords, a travelingsalesman pulled over alongside a country road to let the engine in his“Tin Lizzie” cool. The road was flanked by a white picket fence, onthe other side of which was a barnyard. On the side of the barnsomeone had drawn chalk circles no larger than a quarter, and in thedead center of each of them was a bullet hole. Whoever made thoseshots was quite a marksman.

There was a boy playing in the barnyard, a boy perhaps nine or tenyears old; and the salesman, pointing to the side of the barn, calledout, “Say, sonny, did your dad do that shooting?”

“No, Mister,” replied the lad, not paying much attention. “I did.”

The salesman wasn’t sold. “Now, sonny, where were you standing todo that kind of shooting?”

The boy gestured toward the picket fence. “Back there.”

The salesman pulled a silver dollar out of his vest pocket and began

5

defendant is circumstantial in all its material particulars, it must not only establish guilt beyond and

to the exclusion of a reasonable doubt, but also must be inconsistent with every reasonable

hypothesis of innocence.

Former standard jury instruction 2.14 provides:

Circumstantial evidence is legal evidence and any fact to be provedmay be proved by such evidence. A well-connected chain ofcircumstances is as conclusive in proving a fact as is positiveevidence. Its value is dependent upon its conclusive nature andtendency. Circumstantial evidence is governed by the following rules:

(1) The circumstances themselves must be proved beyond areasonable doubt.

(2) The circumstances must be consistent with guilt and inconsistentwith innocence.

(3) The circumstances must be of such a conclusive nature andtendency that you are convinced beyond a reasonable doubt of the factto be proved.

If the circumstances are susceptible of two reasonable constructions,one indicating guilt and the other innocence, you must accept thatconstruction indicating innocence.

Perhaps the clanking 19th-century language in which the instruction is cast was thought by

flipping it casually off his thumb. “Sonny, tell you what,” he said. “Ifyou can stand back here and show me that you can do that kind ofshooting, I’ll give you this silver dollar.”

The boy disappeared into the barn and returned lugging a revolver soheavy he needed two hands to carry it. He stood with his back to thepicket fence, closed his eyes, and squeezed off three or four shots thatmanaged to hit the side of the barn. Then he walked up to the barn,fished a piece of chalk out of his overalls – and drew a small chalkcircle around each bullet hole he had made.

You just can’t be careful enough with circumstantial evidence.

6

the Florida Supreme Court to be more likely to befuddle than to instruct a 21st-century jury.3 What

is clear is that, although the foregoing instruction has been removed from the standards, it is

undoubtedly an accurate statement of the present-day law of Florida. See, e.g., Anderson v. State,

841 So. 2d 390 (Fla. 2003); Long v. State, 689 So. 2d 1044 (Fla. 1997); Bedford v. State, 589 So. 2d

245, 250–51 (Fla. 1991); Taylor v. State, 583 So. 2d 323, 328 (Fla. 1991); Scott v. State, 581 So. 2d

887 (Fla. 1991). And in removing this instruction from the standards, the Florida Supreme Court

conceded that it did not intend to “prohibit such an instruction if a trial judge, in his or her discretion,

feels that such [an instruction] is necessary under the peculiar facts of a specific case.” In the Matter

of the Use by Trial Courts of the Standard Jury Instructions in Criminal Cases, 431 So. 2d 594, 595

(Fla. 1981).

In a Florida criminal case, the defense, at the close of all evidence, will (assuming it can do

so in good faith) move for judgment of acquittal. If that motion is denied, the defense should (again,

assuming it can do so in good faith), ask the trial court to find that the evidence against the defendant

was circumstantial in every material particular; and to instruct the jury on the common-law

circumstantial evidence rule. If in fact the evidence against the defendant was circumstantial in every

material particular – a matter for the trial court’s determination, see Fla. Stat. § 90.105 – the trial

court may (and depending on all facts and circumstances, perhaps should) instruct the jury on the

3 Cf. the following somewhat more contemporary language:

The court will instruct you that in a case depending uponcircumstantial evidence, if there is any reasonable hypothesis otherthan that of guilt on which the evidence can be explained, it is yourduty to acquit the defendant.

Perry Mason: The Case of the Shapely Shadow (CBS television broadcast July 6, 1962).

7

common-law circumstantial evidence rule, and may not instruct the jury on any contrary or

inconsistent rule of law.

B. The Rule is inapplicable to the case at bar because the evidence was direct in all materialparticulars

“Direct evidence is that to which the witness testifies of his own knowledge as to the facts

at issue. Circumstantial evidence is proof of certain facts and circumstances from which the trier of

fact may infer that the ultimate facts in dispute existed or did not exist.” Davis v. State,

90 So. 2d 629, 631 (Fla. 1956). To use the example inflicted upon generations of law students: If we

look out the window and see rain falling, we have the direct evidence of our eyes that it is raining.

If we are in a windowless room and someone enters wearing a drenched raincoat, shaking out a

dripping umbrella, and stomping his feet to squeeze the water out of his soggy shoes, we have

circumstantial evidence that it is raining.

The trial judge below properly instructed the jury on the elements of the crime of resisting

an officer without violence:

To prove the crime of resisting a police officer without violence theState must prove the following four elements beyond and to theexclusion of a reasonable doubt[:] Number one[,] Peggy Harrellresisted Officer Jackson. Number two[,] at the time[,] Officer Jacksonwas engage[d] in a [sic; the] lawful execution of a legal duty. Numberthree, at the time Officer Jackson was an officer. And number four[,]at the time Peggy Harrell knew that Officer Jackson was an officer.

(Tr. vol 2 at 5–6). See also Fla. Stat. § 843.02; Fla. Std. Jury Instr. 21.2.4

It is difficult to imagine a fact-pattern in which the crime thus defined would ever be proved

4 Although the transcript is garbled, it appears that the trial court correctly advised the jurythat, “every City of Miami police officer is an officer within the meaning of this law.” (Tr. vol. 2 at6.) See Fla. Std. Jury Instr. 21.2.

8

circumstantially. The victim, as a matter of tautology, must be a police officer. The police officer can

be expected to testify as an eye-witness at trial, as he did in this case. Officer Jackson described in

detail the acts of unlawful resistance in which he saw Ms. Harrell engage, and as to which he was

the victim. In response to his lawful order to her to put her hands behind her back for handcuffing,

Ms. Harrell “snatche[d] her arms away and start[ed] using profane language” (Tr. vol. 1 at 37); she

tensed her arms and held them tightly to the front of her body (Tr. vol. 1 at 37–38, 78); she threw

herself to the ground and refused to get up (Tr. vol. 1 at 37, 38, 76). All these things she did in the

presence of the officers. All these things she did in derogation of the lawful command of the officers.

All these things were witnessed at close range, and testified to at trial, by the officers. The first

element of the crime – that Ms. Harwell resisted – was supported exclusively by direct, and in no

respect by circumstantial, evidence.

The second element of the offense – that Officer Jackson “was engaged in the lawful

execution of a legal duty” – was also supported solely by direct evidence. The officers testified that

they were conducting a DUI investigation, at the conclusion of which Ms. Harrell was to be

handcuffed and transported to jail. The officers testified to what they themselves did and to what they

themselves saw. There was nothing circumstantial about it.

The third element the State was obliged to prove was that Officer Jackson was “an officer”

within the meaning of the statute. As noted supra, the trial court properly instructed the jury that

“every City of Miami police officer is an officer within the meaning of this law.” Surely there can

be no suggestion that the fact of Jackson’s employment by the City of Miami Police Department was

a matter left to mere circumstantial proof. Officer Jackson began his testimony by identifying himself

as a City of Miami police officer (Tr. vol. 1 at 5–6), describing his training and duties. He also

9

testified that he was in “full [police] uniform” throughout his interaction with Ms. Harrell. (Tr. vol.

1 at 38.) (Presumably the uniform bears the words, “City of Miami Police Department.”)

That interaction began when Officer Jackson, having observed Ms. Harrell commit one or

more traffic infractions, “got behind her in [his] marked police vehicle” and activated his siren. (Tr.

vol. 1 at 9.) As to what ensued, Jackson gave the following testimony:

Q: Since you are in [a] marked police vehicle you are also in your fulluniform that you are in court in today?

A: That is correct.

Q: So it is clear that you are on duty, correct?

A: It’s clear that I am a police officer and I am on duty, yes.

Id. As noted supra, Ms. Harrell was transported to a police station where the investigation into her

status as a drunk driver continued. That investigation was undertaken by both Officers Jackson and

Ramirez. Thus the evidence of the fourth element of the crime of resisting – that Ms. Harrell knew

that Officer Jackson was an officer – was entirely direct: the jury heard from the lips of the two

eyewitnesses that Ms. Harrell had seen the marked police car that stopped her, heard the police siren

on the police car that stopped her, saw the police uniform on the police officer (who identified

himself as a police officer) when he got out of the police car that stopped her, was taken by the police

officer to the police station, and there encountered at least one other police officer in police uniform.

The common-law circumstantial evidence rule applies only if all material evidence against

a criminal defendant is circumstantial. Jenkins v. State, 1 So. 3d 317, 320 (Fla. 3d DCA 2009) (citing

State v. Burrows, 940 So. 2d 1259 (Fla. 1st DCA 2006)). Here, none of the material evidence against

the criminal defendant was circumstantial.

10

With commendable lawyerly afflatus, appellate counsel for Ms. Harrell seek to divide and

conquer. They bifurcate the crime into its actus reus and its mens rea, then argue that the latter was

not proven otherwise than circumstantially.

But this bifurcation has no place in the application of the common-law circumstantial

evidence rule. The rule looks to the elements of the crime charged and, as set forth above, considers

whether the proof as to those elements is circumstantial in all material particulars. Of course in every

criminal case the defendant’s intent must be proven inferentially unless he confesses. It does not

follow that every criminal case is a circumstantial case, to be governed by the common-law

circumstantial evidence rule. See Grant v. State, 13 So. 3d 163, 166 (Fla. 1st DCA 2009) (collecting

cases).

To support their divide-and-conquer version of the common-law circumstantial evidence rule,

Ms. Harrell’s counsel rely, as they must, on Galavis v. State, 28 So. 3d 176 (Fla. 4th DCA 2010);

and, more particularly, upon the following language from Galavis: “[I]f there is direct evidence of

a defendant’s actus reus, but the defendant’s intent is proven solely through circumstantial evidence,

the special standard of review” – i.e., the rule that the prosecution evidence must not only prove the

defendant’s guilt beyond reasonable doubt but also exclude every reasonable hypothesis of innocence

– “applies only to the state’s evidence establishing the element of intent.” Galavis, 28 So. 3d at 178.

But as Ms. Harrell’s counsel acknowledged at oral argument, the doctrine reflected in the

foregoing quotation has never been adopted by the Third District; nor, so far as our researches have

discovered, by any other appellate court in Florida. On the contrary; Third District cases both pre-

and post-Galavis adhere to the traditional application of the common-law circumstantial evidence

rule. See, e.g., Pollen v. State, 834 So. 2d 380, 383 (Fla. 3d DCA 2003); Morales v. State, 35 So. 3d

11

122, 124–25 (Fla. 3d DCA 2010).

Even taking Galavis on its own terms affords Ms. Harrell no help. Galavis involved an

attempted kidnaping, perpetrated on a child in the presence of the mother. Galavis, 28 So. 3d at

177–78. The Information alleged that Galavis “attempt[ed] to confine, abduct, or imprison” the child

“with intent . . . to terrorize the [child] or [the mother].” Id. at 178. As a threshold matter, then, the

crime at issue in Galavis was a specific intent crime; and the court acknowledged as much. Id. at

178. To prove such a crime, the State must establish that the defendant committed a proscribed act

with the intent to achieve a proscribed result. Simpson v. State, 87 So. 920, 921 (Fla. 1921) (citing

Roberts v. People, 19 Mich. 401 (1870)). The crime sub judice, resisting an officer without violence,

is a general-intent crime. Coleman v. State, 68 So. 3d 369, 371 n. 1 (Fla. 4th DCA 2011). To prove

such a crime, the State need only prove that the defendant committed the proscribed act volitionally.

Whether the proposition for which Ms. Harrell cites Galavis – the proposition that, even if actus reus

is proved by direct evidence, the common-law circumstantial evidence rule applies if mens rea is

proved entirely by circumstantial evidence – applies to general intent as well as specific intent crimes

is something about which Galavis has nothing to say. Certainly an argument could be made that

specific-intent crimes, to a much greater degree than general-intent crimes, often involve proof by

attendant circumstances apart from the actus reus itself, which circumstances are amenable to more

than one interpretation and therefore ought to be scrutinized with greater care. Common-law rape

was a general-intent crime; typically there were few if any circumstances apart from the act of rape

itself offered to prove intent to rape, and thus little danger of misinterpretation of such

circumstances. Askew v. State, 118 So.2d 219, 222 (Fla. 1960) (“on the subject of intent in rape

prosecutions, it is clear that while a general intent is involved in the crime, no specific intent is

12

requisite other than that evidenced by the doing of the acts constituting the offense”) citing 75 C.J.S

Rape §9, p. 471. By contrast, common-law burglary was a specific-intent crime in that it required

evidence of trespass to a dwelling place with the intent to commit a felony therein. 4 WILLIAM

BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *224. The fact of trespass having once

been proved, the intent to commit a felony was often proved solely by circumstantial evidence (the

offender wore a mask, or gloves, or carried an empty bag or other container); and defended by

putatively reasonable hypotheses of innocence (the offender sought momentary shelter from a

dangerous lightening storm or a rabid dog). We decline to speculate about whether the Galavis court

would have extended the Galavis doctrine to general-intent crimes.

And even applying the unique standard set forth in Galavis, the Galavis court had:

no trouble in concluding that this evidence constitutes circumstantialevidence of an intent to terrorize both the mother and the [child].Galavis, a stranger, grabbed the child and attempted to put her in hisbicycle basket and ride away. His demeanor was angry, and he spokein an angry tone when he told the mother he was taking the child. Thechild was screaming . If that weren’t terrifying enough, when thesister and aunt fought for the little girl, Galavis told them to give himthe boy. Clearly, one can infer intent to terrorize the victim and thevictim’s mother from the facts of this case.

Galavis 28 So. 3d at 179. If we were to accept Ms. Harrell’s invitation to apply the Galavis

jurisprudence to the case at bar – an invitation we are bound to reject, by operation of controlling

Third District jurisprudence – it would avail Ms. Harrell nothing. The eyewitnesses/victims testified

consistently and repeatedly that Ms. Harrell was disruptive and uncooperative from the very

beginning of their interaction with her; that she cursed at them in response to their request that she

put her hands behind her back to be handcuffed; and that she then deliberately threw herself to the

ground and so positioned herself as to make it nearly impossible to handcuff her. The only

13

“evidence” that this course of conduct was anything other than what it appeared to be was Ms.

Harrell’s claim of subjective symptoms (i.e., chest pains) and her trial attorney’s suggestion, made

in support of a motion for judgment of acquittal, that maybe, perhaps, possibly, Ms. Harrell was

suffering a “panic attack.” (These words were no sooner out of trial counsel’s mouth than he had the

good grace to concede that he was not a doctor. Presumably doctors treated Ms. Harrell at Jackson

Hospital, but neither they nor the paramedical personnel who attended her in the ambulance testified

at trial.) If we were to follow Galavis’s path, bifurcate actus reus from mens rea, and insist that,

because evidence of mens rea is arguably circumstantial here, intent must be proved to the higher

standard required by the circumstantial evidence rule; then we would continue to follow Galavis’s

path and conclude that, “[c]learly, one can infer [the requisite] intent . . . from the facts of this case.”

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

As with the jury instruction on the presumption of innocence and the burden of proof, Fla.

Std. Crim. Jury Instr. 3.7, the principal purpose of the common-law circumstantial evidence rule is

to let the jury know what the prosecution must prove as a condition prevenient to a verdict of guilty.

In a case not governed by the common-law circumstantial evidence rule, the prosecution must prove

the defendant’s guilt to the exclusion of a reasonable doubt; and the jury should be so instructed. In

a case governed by the common-law circumstantial evidence rule, the prosecution must not only

prove the defendant’s guilt to the exclusion of a reasonable doubt, but must also rebut, to the jury’s

satisfaction, every reasonable hypothesis of innocence; and the jury should be so instructed.

Whether this is a good rule or a bad rule is question not now before us. From time to time

a judge will express the view that the rule is of a piece with medieval scholasticism or Talmudic

pilpul. How, the aporetic jurist muses, can something be said to have been proved to the exclusion

14

of reasonable doubt if there remains an alternative reasonable hypothesis of innocence? And if guilt

cannot be said to have been proved to the exclusion of reasonable doubt while there remains an

alternative reasonable hypothesis of innocence, what is added to the standard reasonable-doubt

instruction by the common-law circumstantial evidence instruction?

But the common-law circumstantial evidence rule is not to be defended as a matter of

undiluted logic. It is to be defended, as noted supra at 4, as an expression of our acknowledgment

that trial by jury is an enterprise designed and operated by imperfect human beings, and therefore one

which can be expected to produce no better than imperfect results. It is to be defended as an

expression of our acknowledgment of the limits of our ability to say reliably what is known and what

is proved. Because of those limits, and because the consequences of false conviction are so great,

we ought to ask the jury to consider what Cromwell asked the synod of the Church of Scotland to

consider: In the bowels of Christ, is it possible you may be mistaken? In the ordinary case, we do this

by instructing the jury that a criminal defendant is presumed innocent – even though we know that

the statistical likelihood of his guilt is great. In a case in which all material evidence against the

defendant is circumstantial, we do this by instructing the jury on the common-law circumstantial

evidence rule – even though we know that there may be, as a matter of logic alone, little if anything

added by that instruction to the reasonable doubt instruction.

In the present case, the defense never requested that the jury be instructed on the common-

law circumstantial evidence rule. Certainly the defense cannot now be heard to complain about the

trial court’s failure to give that instruction – the more so where, as here, the instruction is in any

event inapplicable.

The defense does complain that the trial court erred by not granting judgment of acquittal at

15

the close of all the evidence. We review the trial court’s ruling on a motion for judgment of acquittal

de novo, Williams v. State, 884 So. 2d 1097, 1099 (Fla. 5th DCA 2004), and conclude that the trial

court’s ruling below was correct.

In State v. Law, 559 So. 2d 187 (Fla. 1990), the Florida Supreme Court considered whether

the common-law circumstantial evidence rule applies, not only to the jury’s deliberations, but also

to the trial judge’s adjudication of a motion for judgment of acquittal. Id. at 188. In other words, in

passing upon a motion for judgment of acquittal at the close of all evidence, does the trial judge, in

an exclusively circumstantial-evidence case, pose to himself the question whether the evidence has

excluded every reasonable hypothesis of innocence; as opposed to the question whether, taking all

the evidence in the light most favorable to the prosecution as the non-moving party, a reasonable jury

could return a verdict of guilty?

As a matter of law, the answer is that the common-law circumstantial evidence rule applies,

but that in determining whether the prosecution evidence has rebutted every reasonable defense

hypothesis of innocence, the trial court should consider the evidence and inferences therefrom in the

light most favorable to the prosecution. Id. at 188–89. See generally State v. Sims, 110 So. 3d 113

(Fla. 1st DCA 2013). As a practical matter, this should result in no, or next to no, motions for

judgment of acquittal being granted in circumstantial cases. Taking all evidence and all reasonable

inferences from evidence in the light most favorable to the State, all defense hypotheses of innocence

will likely be either reasonable but rebutted, or unrebutted but unreasonable.5 A purely circumstantial

5 So to summarize the present state of Florida law: The common-law circumstantial evidencerule is the law of Florida, but a trial judge is not absolutely bound, on pain of reversal, to so instructthe jury in a purely circumstantial-evidence case. That trial judge is bound, however, on pain ofreversal, to adjudicate the defense’s motion for judgment of acquittal according to the common-lawcircumstantial evidence rule – but in so doing, he must draw all reasonable inferences in favor of the

16

case in which judgment of acquittal would be appropriate is like a subatomic quark: according to all

we know, it must exist – but no one claims to have seen one.

Nor is there any reason to start looking for one in this case. As noted, the evidence against

Ms. Harrell was direct, not circumstantial. In passing upon the defense motion for judgment of

acquittal, the trial court applied the correct standard and reached the correct result. We find no error.

AFFIRMED.

prosecution, thus rendering the application of the common-law circumstantial evidence rule littlemore than an academic exercise. Matters get even more – substantially more – labyrinthine onappeal, see Knight v. State, 107 So. 3d 449 (Fla. 5th DCA 2013).

17

REBULL, J., concurring.

I concur with affirming the judgment of conviction and sentence in this case. I also join

entirely with the Court’s analysis of the evidence in this case and the law as it applies to that

evidence. I write separately only to clarify and emphasize a few points as it relates to my

understanding of the circumstantial evidence rule. To the extent (if at all) that my views differ

from the majority opinion as to when a requested special instruction on circumstantial evidence

must (if ever) be given to the jury, and my view on how a trial judge must analyze a motion for

judgment of acquittal in a circumstantial evidence case, I most respectfully decline to join that

portion of the opinion.

“[T]he circumstantial evidence rule does not require the jury to believe the defendant's

version of the facts when the State has produced conflicting evidence. Rather, the rule requires

the State to introduce competent evidence which is inconsistent with the defendant's theory of

events' to establish its case.” Martin v. State, 107 So. 3d 281, 317 (Fla. 2012), reh'g denied (Feb.

1, 2013), cert. denied, 133 S. Ct. 2832 (U.S. 2013)(internal citations and quotations

omitted)(emphasis added).

It is entirely within the trial court’s discretion to decline to give a requested circumstantial

evidence instruction. See Gosciminski v. State, 132 So. 3d 678, 708 n. 19 (Fla. 2013). Indeed,

the Florida Supreme Court has referred to the circumstantial evidence instruction as “confusing

and incorrect,” and “unnecessary,” where the jury is properly instructed on the standard of

reasonable doubt and the burden of proof. See id. Consequently, in the overwhelming majority

of cases a trial judge’s decision to decline to give the jury a requested special instruction on

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circumstantial evidence (assuming of course all of the standard required instructions are properly

given) should not result in reversible error; see generally 3 Crim. Prac. Manual § 95:8 (2014)

(noting the United States Supreme Court’s holding in Holland v. United States, 348 U.S. 121

(1954) that an additional instruction on circumstantial evidence would be “confusing and

incorrect” where the jury has been properly instructed on reasonable doubt).1

With regard to the circumstantial evidence rule and a defense motion for judgment of

acquittal, my understanding of the law is as set forth in Gosciminski v. State, 132 So. 3d 678, 710

(Fla. 2013). There, the Florida Supreme Court “explained how the circumstantial evidence

standard applies to a motion for a judgment of acquittal” by quoting in full from its own earlier

opinion in State v. Law, 559 So. 2d 187 (Fla. 1989). Among other things, the Court articulates

the distinction between the State’s obligation to introduce competent evidence which is

inconsistent with the defendant’s theory of events, and the “jury’s duty to determine whether the

evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable

doubt.” See id.

1 “An apparent trend has been noted which would eliminate the use of a special circumstantial evidence instruction

where the other instructions which are given are sufficient to charge the jury concerning both direct and

circumstantial evidence.” Carol J. Miller, Annotation, Modern status of rule regarding necessity of instruction on

circumstantial evidence in criminal trial—state cases, 36 A.L.R.4th 1046 (2014). Indeed, under the current version

of the Florida standard jury instructions in criminal cases for burglary, circumstantial evidence is specifically

referenced as follows: “The intent with which an act is done is an operation of the mind and, therefore, is not always

capable of direct and positive proof. It may be established by circumstantial evidence like any other fact in a case.”

Fla. Std. Jury Inst. (Crim.) 13.1 (2014).

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