Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-5244 _____________________________ ANTHONY DEVON EARNEST, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge. April 1, 2020 PER CURIAM. Appellant, Anthony Devon Earnest, appeals his convictions and sentences for sexual battery, battery, and false imprisonment. He argues that the trial court erred in denying his motion for mistrial that was based on an alleged discovery violation by the State and in refusing to instruct the jury on battery as a permissive lesser included offense of false imprisonment. For the reasons that follow, we affirm. The State charged Appellant with three counts of sexual battery, false imprisonment, and felony battery for actions he allegedly perpetrated upon the victim, with whom he had previously had a relationship. In the false imprisonment count, the State alleged that Appellant “did unlawfully forcibly, by threat, or secretly confine, abduct, imprison, or restrain [the victim], without lawful authority and against her will.” Prior to trial, the defense took the victim’s deposition, during which defense counsel asked her whether, following Appellant’s arrest, she ever went with him to the same motel where the two used to go to have sex, to which she replied, “Yes.” When asked how many times this occurred, she replied, “One.” When asked if she ever had sex with Appellant again, the victim replied, “No.” During trial, the victim testified that, prior to going to the motel, she was at a tire store owned by Appellant’s cousin. While she was there, Appellant went to the store. At some point during the encounter, Appellant apologized and asked the victim to drop the charges against him. Defense counsel moved for a mistrial, arguing that the State, which was made aware of the additional testimony the day before trial, committed a discovery violation by not informing Appellant of a material change in the victim’s testimony. The trial court denied the motion, finding that no violation occurred. The trial court later denied Appellant’s request to have the jury instructed on battery as a permissive lesser included offense of false imprisonment. The jury found Appellant guilty of the lesser included offense of battery on the first two sexual battery counts, guilty as charged on the third sexual battery count and the false imprisonment count, and guilty of misdemeanor battery on the felony battery count. This appeal followed. Appellant first contends that the trial court erred in denying his motion for mistrial that was based upon an alleged discovery violation by the State. See Curry v. State, 1 So. 3d 394, 397–98 (Fla. 1st DCA 2009) (noting that whether a discovery violation occurred may be a factual issue or present a question of law and holding that “if a discovery violation has occurred, the trial court is required by law to grant a Richardson 1 hearing”). As Appellant asserts, a motion for mistrial can preserve a discovery violation claim if the motion reasonably informs the court of the nature of the complaint. See Smith v. State, 7 So. 3d 473, 506 (Fla. 2009). We find no abuse of discretion in the trial court’s denial of Appellant’s motion for mistrial. See Mendoza v. State, 964 So. 2d 1 Richardson v. State, 246 So. 2d 771 (Fla. 1971). 2 121, 131 (Fla. 2007) (noting that a trial court’s ruling on a motion for mistrial is reviewed for an abuse of discretion). Although the victim testified at trial about additional circumstances concerning her post-incident meeting with Appellant, there was not a material change in her testimony from the testimony she gave in her deposition when asked specific and narrow questions by defense counsel. As such, no discovery violation occurred. See Andres v. State, 254 So. 3d 283, 293 (Fla. 2018) (explaining that the “[f]ailure to disclose an oral statement which constitutes a material change to a witness’s recorded statement is a discovery violation that triggers a full Richardson hearing” and that while “material change” has not been specifically defined, some examples are obvious, such as when a witness’s trial testimony transforms him or her from a “who didn’t see anything” witness into the only eyewitness to the crime); State v. McFadden, 50 So. 3d 1131, 1133- 34 (Fla. 2010) (determining that because a witness’s earlier statement was not inconsistent with anything the witness said in her deposition or in any other recorded statement, it did not materially alter a prior written or recorded statement). Cf. Scipio v. State, 928 So. 2d 1138, 1150 (Fla. 2006) (holding that the State committed a discovery violation based upon the material change in testimony of the medical examiner’s investigator where the investigator recanted his deposition testimony at trial about a gun being found underneath the victim’s body); Washington v. State, 151 So. 3d 544, 546 (Fla. 1st DCA 2014) (holding that a discovery violation occurred based upon a material change in a witness’s testimony where the witness was going to testify at trial that the appellant had never lived with her, whereas she testified in her deposition that the appellant lived with her); Cliff Berry, Inc. v. State, 116 So. 3d 394, 417 (Fla. 3d DCA 2012) (noting that a State witness contended in his pretrial sworn statement and deposition that the defendants began stealing jet fuel in June 2002 while he testified at trial that the theft of jet fuel began much earlier and holding that the State had a duty to disclose the material change in testimony). 2 2 In reaching our decision, we are cognizant of the rule that “where the State fails to disclose to the defendant, prior to trial, the substance of any oral statement allegedly made by the defendant, then the State has committed a discovery violation and 3 In his second and final issue, Appellant argues that the trial court erred in not instructing the jury on battery as a permissive lesser included offense of false imprisonment. A trial court must give a jury instruction on a permissive lesser included offense if the following two conditions are met: (1) the indictment or information must allege all the statutory elements of the permissive lesser included offense, and (2) there must be some evidence adduced at trial to establish all of the elements. See Anderson v. State, 45 Fla. L. Weekly S84 (Fla. Mar. 5, 2020); Khianthalat v. State, 974 So. 2d 359, 361 (Fla. 2008). Neither of these elements was satisfied in this case. The offense of battery occurs when a person “[a]ctually and intentionally touches or strikes another person against the will of the other” or “[i]ntentionally causes bodily harm to another person.” § 784.03(1)(a)1.–2., Fla. Stat. (2016). As the State contends, it did not expressly allege either of these elements in the false imprisonment count. See Anderson, 45 Fla. L. Weekly at S86 (holding that the trial court did not err in denying the defendant’s request for an instruction on a permissive lesser included offense where the information did not allege an essential element of the lesser included offense); Farley v. State, 740 So. 2d 5, 6 (Fla. 1st DCA 1999) (noting that the elements of a lesser offense must be alleged specifically, not through inference). Moreover, while there the trial court must conduct a Richardson hearing upon learning of the possible violation.” State v. Evans, 770 So. 2d 1174, 1179 (Fla. 2000) (noting that Florida Rule of Criminal Procedure 3.220(b)(1)(C) requires the State to disclose to a criminal defendant the “substance of any oral statements made by the defendant” and that rule 3.220(j) imposes a continuing duty to disclose). However, Appellant’s motion for mistrial was based upon the State’s alleged duty to disclose a material change in the victim’s testimony, not its duty to disclose any statements made by Appellant. See Stevenson v. State, 234 So. 3d 828, 830 (Fla. 1st DCA 2017) (noting that a litigant must make a timely and contemporaneous objection and must state the legal ground for the objection because doing so puts the trial court on notice that error may have been committed and provides it with an opportunity to correct it). Nor has that specific argument been made on appeal. See Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (noting that an appellate court is not at liberty to address issues that were not raised by the parties). 4 was evidence adduced at trial that Appellant battered the victim by pulling her hair and choking her, those actions formed the basis of the felony battery count, whereas the alleged false imprisonment was, according to the prosecutor during the charge conference, based upon threats Appellant made to the victim. As such, the trial court did not err in denying Appellant’s request for the battery instruction. Accordingly, we affirm. AFFIRMED. LEWIS, B.L. THOMAS, and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee. 5