Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-2848 _____________________________ KEVIN JOHN BUTLER, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Bay County. Michael C. Overstreet, Judge. June 11, 2020 ROWE, J. Kevin John Butler appeals his judgment and sentence for failure to immediately stop at the scene of a crash involving serious bodily injury and reckless driving causing serious bodily injury. He raises three issues on appeal. We affirm all three and write only to address his arguments that he was entitled to a judgment of acquittal because he never left the scene of the crash and that the trial court improperly assessed severe victim injury points when imposing sentence. Butler’s convictions stemmed from a motor vehicle accident in Panama City. Butler was driving his sports utility vehicle when he crashed into the victim who was riding a motorcycle. After the crash, Butler continued to drive his vehicle. He drove the SUV into a condominium complex, hit a carport, backed up, and hit the carport again. He eventually turned around, went back into the road, crossed over two lanes of the highway, crossed the median and another two lanes. The SUV finally stopped when Butler drove it into a ditch. Tyson Hoover was at the condominium complex that Butler drove into. He testified that he heard a crash and went out to investigate. Hoover saw the motorcycle involved in the crash and rendered aid to the victim. He then approached Butler’s SUV and saw Butler “sitting against the back tire.” Hoover testified that Butler said, “let me go” and tried to get up and leave. Hoover and his friend detained Butler until the police arrived. The first officer to respond to the crash testified that Butler’s speech was slurred, and he could not stand on his own. The officer believed Butler was under the influence. A second officer, a state trooper, arrested Butler for driving under the influence. The next day, the trooper returned to the area to take pictures and drew a diagram of the crash based on his investigation. After the crash, the victim was transported to the hospital and treated for several injuries including a broken neck and foot and a gash in his head. The victim had three surgeries to treat his injuries, including the installation of steel rods in his neck. He had to wear a neck brace for two months. The victim’s injuries were serious, and his doctor opined he would never recover. Butler was charged with failure to immediately stop at the scene of a crash involving serious bodily injury and reckless driving causing serious bodily injury. After trial, the jury found Butler guilty as charged. He was sentenced to 37 months in prison followed by 60 months of drug offender probation. This timely appeal follows. Judgment of Acquittal We review a trial court’s ruling on a motion for judgment for acquittal de novo. Dunn v. State, 206 So. 3d 802, 804 (Fla. 1st DCA 2016). If the State presents competent, substantial evidence to 2 establish every element of the crime, then judgment of acquittal is improper. Johnson v. State, 238 So. 3d 726, 739 (Fla. 2018). Section 316.027(2)(a), Florida Statutes (2017), provides: The driver of a vehicle involved in a crash occurring on public or private property which results in serious bodily injury to a person shall immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and shall remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062. 1 To establish the elements of the offense of failure to immediately stop at the scene of a crash, the State had to prove beyond a reasonable doubt that Butler (1) was the driver of a vehicle involved in a crash occurring on public or private property causing injury to a person; (2) knew that he was involved in a crash; (3) knew or should have known from all the circumstances, including the nature of the crash, of the injury to the person; and (4) willfully failed to immediately stop at the scene of the crash, or as close to the crash as possible, and remain there until he had given identifying information to the injured person and to any police officer investigating the crash. § 316.027, Fla. Stat.; In re Standard Jury Instructions in Criminal Cases—Report No. 2015- 07, 192 So. 3d 1190, 1202 (Fla. 2016). Butler contests only the fourth element. He argues he was entitled to acquittal because the State did not present legally sufficient evidence to show that he left the scene. Butler concedes that he kept driving his SUV after the crash. But he claims that the “scene” of the crash encompassed the area surrounding the crash site and included all the places he drove his car before landing in the ditch. Thus, Butler argues, that while the evidence may have shown that he tried to leave, he never left the scene of the crash. 1 Section 316.062, Florida Statutes (2017), sets forth the duty of a driver involved in a car crash to give information and render aid. 3 Butler’s arguments fail for three reasons. First, as a preliminary matter, the statutory offense is not based on a driver’s leaving the scene. Rather, the offense is based on a driver’s willful failure to immediately stop at the scene. Second, the evidence created a jury question about whether Butler immediately stopped after the crash. And third, the evidence also created a jury question on whether Butler’s movements after impact extended beyond the scene of the crash. The State offered evidence to show that Butler willfully failed to immediately stop after the crash. From the point of impact, Butler continued to drive into a condominium carport, hit the carport several times, backed up, drove back into the road, crossed the median of a four-lane highway, and did not stop until the car was stuck in a ditch. Based on these facts, the evidence was sufficient to create a jury question on whether Butler willfully failed to “immediately stop” at the scene. The parties also dispute whether Butler’s movements after the point of impact went beyond the scene of the crash. Butler argues that the boundaries of the scene encompass all of the places he drove the car after the point of impact. We disagree. The word “scene” is not defined in the statute. When construing a statute, we look first to the language of the statute. Rochester v. State, 140 So. 3d 973, 974 (Fla. 2014). If the language of the statute is unambiguous, we apply its plain meaning and do not resort to other rules of statutory construction. English v. State, 191 So. 3d 448, 451 (Fla. 2016). The language of the statute here is plain and the word “scene” is in common usage. Thus, we consider the plain and ordinary understanding of the word. Lieupo v. Simon’s Trucking, Inc., 2019 WL 6904130 (Fla. 2019) (observing that where a statute does not define a word in common usage, the word must be construed in its plain and ordinary sense). “Scene” is commonly defined as “the place of an occurrence or action.” Scene, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th. ed. 2003). Here, the relevant occurrence is the crash, and the place is the location where Butler crashed his vehicle into the victim’s motorcycle. 4 Butler contends that the scene (or place the crash occurred) encompasses all of the area surrounding the crash as depicted in the state trooper’s diagram. On the other hand, the State offered evidence that the diagram of the crash indicated that the trooper’s drawing was not to scale. Butler and the State offer plausible and competing versions of what geographic area encompassed the scene of the crash (or the place where the crash occurred). But ultimately, we conclude that the determination of the boundaries of the scene of the crash was a fact question for the jury. Compare Jacobs v. State, 41 So. 3d 1004, 1007 (Fla. 1st DCA 2010) (“The trial court did not err in denying the motions for judgment of acquittal because the evidence was sufficient to create a jury question of whether the home was suitable for lodging and thus remained a ‘dwelling.’”). Butler’s argument that the scene extends to all places depicted on the diagram of the crash invites this Court to substitute our judgment for that of the factfinder on the weight and credibility of the evidence. Under the plain and ordinary meaning of the word “scene,” and viewed in a light most favorable to the State, there was competent, substantial evidence from which a jury could conclude that Butler’s movements after the crash extended to an area beyond the scene of the crash. For this reason and because there was evidence to show that Butler did not “immediately stop” at the scene, the trial court did not err by submitting the issues to the jury and denying the motion for judgment of acquittal. Sentencing Butler next argues that the trial court erred in imposing his sentence because the sentencing scoresheet included points for severe injury to the victim. Because the jury did not make a specific finding that the victim sustained severe injuries, Butler contends that the trial court’s inclusion of victim injury points on his scoresheet increased his lowest permissible sentence in violation of the Sixth Amendment and Alleyne v. United States, 570 U.S. 99 (2013). 2 2 The United States Supreme Court held in Alleyne v. United States, 570 U.S. 99, 103 (2013) as follows: 5 When the trial court calculated Butler’s lowest permissible sentence under the Criminal Punishment Code, forty points were added for severe injury to the victim. The victim injury points increased Butler’s lowest permissible sentence, absent a valid reason for departure. And though the jury made findings on both charged offenses that the injuries to the victim were “serious,” the jury made no finding that victim’s injuries were “severe.” Thus, Butler asserts that the victim injury points raised his lowest permissible sentence contrary to the requirements of Alleyne. But we need not reach the question of whether an increase in the lowest permissible sentence under Florida’s Criminal Punishment Code based on facts not submitted to the jury violates Alleyne’s prohibition against an increase in the mandatory minimum sentence based on facts not submitted to the jury. That is because any error here was harmless. See Britten v. State, 181 So. 3d 1215, 1218 (Fla. 1st DCA 2015) (holding that any error was harmless where appellant was designated a dangerous sexual felony offender without a jury finding that he actually caused serious personal injury to the victim); see also Galindez v. State, 955 So. 2d 517, 522–23 (Fla. 2007) (holding that Apprendi and Blakely errors are subject to harmless error analysis). Even though the jury did not make a finding that the victim sustained severe injury, the jury entered verdicts on both charged offenses which included the element of serious bodily injury on the verdict form. §§ 316.027(2), 316.192(3)(a),(b),(c)2, Fla. Stat. The statute defines “serious bodily injury” as “an injury to a person, including the driver, which consists of a physical condition that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of a bodily member Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. 6 or organ.” § 316.027(1)(a), Fla. Stat. The jury here found that the State established beyond a reasonable doubt that the victim’s injuries were serious. But it made no finding that the injuries were severe. Though “serious bodily injury” is defined by statute, “severe” victim injury is not defined under the Criminal Punishment Code. § 921.0021(7)(a), Fla. Stat. The Code defines victim injury as “the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which the offender is convicted and which is pending before the court for sentencing at the time of the primary offense.” § 921.0021(7)(a), Fla. Stat. And the amount of victim injury points the trial court may assess depends on whether the victim’s injury is “severe,” “moderate,” or “slight.” § 921.0024, Fla. Stat. (2018). Because the term “severe” is undefined, we apply its plain and ordinary meaning. “Severe” is commonly defined as “serious” or “of a great degree.” Severe, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th. ed. 2003). Applying this definition, we conclude beyond any reasonable doubt that a rational jury would have found that the serious bodily injury suffered by the victim in this case also was “severe” as that term is commonly defined. The victim’s neck was broken. The surgeon who treated the victim opined that the injuries were permanent, serious, and could have led to the victim’s death or paralyzation. Thus, on these facts, any error in not requiring the jury to make a specific finding about the severity of the victim’s injury was harmless beyond a reasonable doubt. Conclusion Because the State presented sufficient evidence from which the jury could determine whether Butler failed to immediately stop at the scene and any error in sentencing was harmless beyond a reasonable doubt, Butler’s convictions and sentence are AFFIRMED. RAY, C.J., and TANENBAUM, J., concur 7 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant. Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee. 8