Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-2094 _____________________________ MICHAEL RAY HAIM, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Steven B. Whittington, Judge. April 30, 2021 ROWE, J. Michael Ray Haim appeals his conviction and sentence for the second-degree murder of his wife. He argues that the trial court erred in not excluding a statement made by his son near the time of the murder, in not excluding a shell casing found near the victim’s body, and in imposing an upward departure sentence. Finding no error by the trial court, we affirm. I. Facts In 1993, the victim disappeared, leaving behind her husband, Haim, and their three-and-one-half-year-old son, Aaron. The morning after she was last seen, the victim’s purse was found in a dumpster at a hotel near the airport—it still contained her cash, credit cards, and driver’s license. The police later discovered the victim’s car in an airport parking lot. But the victim could not be found. The police suspected that Haim was involved in the victim’s disappearance. The victim’s friends reported that she was planning to leave Haim and take their son with her. Haim admitted that he and the victim argued the night before she disappeared. And the day after her disappearance, a child protection team member interviewed Aaron. The child made statements that further implicated his father. But Haim was never prosecuted, in part, because the victim could not be found. The case remained cold until 2014. In 2014, Aaron decided to renovate the house his family lived in when the victim disappeared. The renovations included removing a pool and an outdoor shower. As Aaron was demolishing the outdoor shower, he located the top portion of a skull. He could see more bones at the demolition site. Aaron contacted the police because he believed that he discovered his mother’s body. Based on the discovery of the victim’s remains and evidence gathered at the time of her disappearance, Haim was arrested and charged with the victim’s murder. Before trial, Haim filed multiple motions in limine seeking to exclude statements Aaron made during his 1993 interview with a Child Protection Team. The State argued that the statements were admissible as statements of identification under section 90.801(2)(c), Florida Statutes (2018). The trial court excluded some of the statements. But the court allowed the State to introduce Aaron’s statement that he saw Haim hurt or harm his mother. Haim also sought to exclude the introduction of a .22-caliber shell casing found when investigators unearthed the victim’s remains. He argued that there was no nexus between the casing and the crime because the cause of the victim’s death was undetermined. And investigators could not link the casing to any weapons owned by him. The trial court denied the motion. It found that the casing was relevant and highly probative because it tended to prove the victim’s cause of death, where the shooting 2 occurred, and was consistent with an injury to the victim’s hip bone. After resolving the evidentiary issues, the case proceeded to trial. The CPT interviewer that spoke with Aaron after his mother’s disappearance testified. She attested that Aaron told her that his mother had been hurt and identified his father as the person who hurt his mother. Aaron also told the interviewer that it happened at nighttime. Dr. Wendy Stroh, the medical examiner who performed the autopsy, also testified. She explained that she inspected the victim’s remains in the location where they were discovered and at the medical examiner’s office. In the dirt removed from the excavation site, investigators found a .22-caliber shell casing. Stroh did not know where the casing was found in relation to the body. Still, although she could not determine an anatomic cause of death, Stroh ruled the victim’s death to be a homicide. Dr. Heather Walsh-Haney, a forensic anthropologist, testified next. She concluded that the victim was buried before her body began to decompose. Walsh-Haney observed a circular perimortem defect on the victim’s hip bone. She could not be sure that a gunshot caused the defect, but it resembled a gunshot wound. A firearms expert also testified. He examined the .22-caliber shell casing found near the victim’s remains. Because of significant corrosion, he found that the markings on the casing were of little value. But he determined that the casing had been fired. The State also presented evidence that Haim had confessed to two of his cellmates in jail that he had murdered the victim. Both jailhouse informants testified at trial and attested that Haim told them that he killed the victim because she was having an affair. And both claimed that Haim told them that he choked or strangled the victim before burying her in the back yard. And the State introduced evidence that Haim tried to avoid discovery of the victim’s remains. After the victim’s disappearance, Haim started using the marital home as a rental property. One renter explained that her lease agreement contained a clause that 3 prevented her from digging or planting anything in the yard. Haim also required her to keep her two dogs in the master bedroom when she left the property. The State rested its case. Haim then testified in his own defense. On the night she disappeared, Haim claimed that he and the victim talked about why she had been so unhappy. The victim left the house without saying anything. In the early morning hours, Haim asked his mother to come to the house to watch Aaron while he drove around to look for the victim. Haim’s mother later corroborated this testimony. Haim denied killing the victim and denied confessing to the jailhouse informants. The jury found Haim guilty of second-degree murder. Under the 1992 sentencing guidelines, Haim’s recommended sentencing range was seven to twenty-two years. But the State sought an upward departure sentence based on aggravating factors. In a separate sentencing proceeding, the jury heard mitigating and aggravating evidence from several witnesses and was asked to determine whether the State proved the aggravating factors beyond a reasonable doubt. The jury found that three aggravating factors were present: (1) the crime was committed in the presence of a family member, Aaron; (2) the crime was committed during the commission of tampering with evidence; and (3) the crime inflicted severe physical or emotional trauma on the victim, Aaron, and members of the victim’s family. The jury also concluded that the crime was not committed in a heinous, atrocious, and cruel manner. The trial court sentenced Haim to life imprisonment. The court entered a written order explaining the reasons for the departure sentence. This timely appeal follows. II. Analysis Haim raises three arguments on appeal. First, he argues that the trial court erred in denying his motion in limine to exclude Aaron’s statements from the CPT interview. Second, he argues that the trial court erred in denying his motion in limine to exclude the .22-caliber shell casing. Third, he contends that the trial court 4 improperly imposed an upward departure sentence. We address each argument in turn. A. Motions in Limine A trial court’s ruling on the admissibility of evidence will not be reversed absent an abuse of discretion. McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006). But the court’s discretion is limited by the evidence code and applicable case law, and an appellate court reviews a trial court’s erroneous interpretation of these authorities de novo. Id. 1. Statement of Identification Haim filed multiple motions in limine seeking to exclude as hearsay any statement made by Aaron during the CPT interview. The trial court denied the motions, finding that Aaron’s statements qualified as statements of identification under section 90.810(2)(c). The court determined that Aaron made the statements after he witnessed or perceived his father commit an act that hurt or harmed his mother. And Aaron identified his father as the person who committed that act when the CPT interviewed Aaron within forty-eight hours of the victim’s disappearance. Even so, the trial court excluded some of the statements Aaron made during the CPT interview because they were internally inconsistent and could confuse and mislead the jury. But the court denied Haim’s motion to exclude Aaron’s statement that he saw his father hurt or harm his mother. Haim challenges the court’s ruling on the admissibility of Aaron’s statement for three reasons: (1) the State failed to present non-hearsay testimony to show that Aaron witnessed the charged crime; (2) Aaron’s statement was an accusatory narrative, not a statement of identification; and (3) Aaron never made the statement “daddy hurt mommy.” As explained below, the trial court did not err when it allowed the State to introduce the challenged statement. Under section 90.801(2)(c), Florida Statutes (2018), an “identification of person made after perceiving the person” is not a hearsay statement if the declarant testifies at trial and is subject 5 to cross-examination. “A statement of identification ‘refers to the witness seeing a person after the criminal episode and identifying that person as the offender.’” Ellison v. State, 271 So. 3d 1045, 1048 (Fla. 4th DCA 2019) (quoting Stanford v. State, 576 So. 2d 737, 740 (Fla. 4th DCA 1991)). Haim first argues that the statements were not admissible under section 90.801(2)(c) because the State did not present non- hearsay testimony to show that Aaron witnessed the murder. But Haim did not preserve this argument for appellate review because Haim never presented the argument to the trial court. See Archer v. State, 613 So. 2d 446, 448 (Fla. 1993) (“For an issue to be preserved on appeal, . . . it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’” (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985))). This argument also lacks merit because there is no requirement in the statute for the State to present independent, non-hearsay evidence for a statement of identification to be admissible. And “we are not at liberty to add words to [the statute] that were not placed there by the Legislature.” See Chavez v. State, 296 So. 3d 1003, 1003 (Fla. 1st DCA 2020) (declining the defendant’s invitation to add words to a statute not included by the Legislature). Next, Haim argues that Aaron’s statement that Haim hurt the victim was not admissible as a statement of identification because it was an accusatory narrative. But Haim did not challenge this statement on this ground in the trial court. The State sought to introduce several of Aaron’s statements about what Haim did to his mother, including that Haim hurt his mother, pushed her down, ran her over with a car, ran her over with a truck, and shot her with a gun. Haim argued that those statements were not admissible because they advanced an accusatory narrative. The trial court agreed and did not allow the States to admit those statements. But the trial court ruled that the State could introduce Aaron’s statement that his dad hurt his mom. As to that statement, Haim never argued that it was an accusatory narrative. And so, Haim did not preserve this challenge to the statement for appellate review. See Archer, 613 So. 2d at 448. 6 But Haim preserved for appeal one challenge he made to the statement at trial. Haim argued that the trial court should exclude testimony about Aaron’s statements because Aaron never stated, “daddy hurt mommy.” Even so, the trial court properly rejected Haim’s argument. When the CPT interviewer testified at trial, the following exchange occurred between the interviewer and the prosecutor: Q. So after he was fed, did Aaron indicate that his mother had been hurt? A. Yes, he did. Q. And did he identify who did that to his mother? A. Yes, he did. Q. And who did he say? A. His daddy, his father. This exchange supports Haim’s argument that Aaron did not precisely state that “daddy hurt mommy.” But that is not the statement the State sought to introduce at trial, either. Instead, as the exchange between the interviewer and the prosecutor shows, the interviewer recounted statements made by Aaron during the CPT interview. During the interview, Aaron said that he saw Haim hurt his mother. The trial transcript shows that the testimony reflected Aaron’s statement. For these reasons, the trial court properly denied Haim’s motions in limine to exclude evidence of Aaron’s statements from the CPT interview. 2. The .22-caliber Shell Casing Haim’s next argument on appeal also concerns a motion to exclude evidence. Haim moved in limine to exclude a .22-caliber shell casing found near the victim’s remains. Haim argued that the State failed to link the casing to the victim’s murder or to any weapon owned by Haim. He argued that the prejudicial effect of the evidence of the casing severely outweighed any probative 7 value. But the trial court disagreed. It found that the casing was relevant and highly probative because it tended to prove the cause of death of the victim, where the shooting occurred, and a possible connection to Haim. The trial court also found no factors to suggest that the prejudicial effect of introducing the shell casing would outweigh its probative value. Haim argues that the trial court erred in allowing the State to introduce the evidence based on the alleged absence of any link between the casing and the murder. Haim cites two cases to support his argument for reversal. First, he relies on O’Connor v. State, 835 So. 2d 1226 (Fla. 4th DCA 2003). There, the trial court allowed the State to admit photographs of a shotgun in the defendant’s trial for murder and armed robbery. Id. at 1230. The Fourth District concluded that the trial court erred in allowing admission of the photographs because the murder was committed with a handgun, not a shotgun, and nothing else in the record tied the shotgun to the crime. Id. at 1231 (“[W]here the evidence at trial does not link a weapon seized to the crime charged, the weapon is inadmissible.”). Haim also relies on Sosa v. State, 639 So. 2d 173 (Fla. 3d DCA 1994). There, the defendant was convicted of attempted second- degree murder. Id. at 173. The court allowed the State to admit evidence that the defendant had .380 cartridges in his car. Id. at 174. The evidence at trial, however, showed that “the rounds retrieved from the victim’s car were more consistent with a .22 caliber than with a .380 caliber.” Id. Further, a policer officer testified that the gun that was fired at the victim could not have fired the cartridges found in the defendant’s car. Id. For these reasons, the Third District held that the trial court erred in allowing the State to admit evidence of the .380 cartridges found in the defendant’s car because there was no link between those cartridges and the ones used in the charged crime. Id. This case is not like O’Connor and Sosa. Unlike those cases, where other admitted evidence specifically disproved a causal link between the challenged evidence and the charged offense, here no evidence contradicted the State’s theory that the .22-caliber casing was linked to the victim’s murder. The evidence shows that the casing was found in the area where the victim’s skeletal remains 8 were discovered. A forensic anthropologist testified that the victim’s hip bone had a circular defect consistent with being shot. And investigators recovered a .22-caliber firearm from Haim’s home during the initial investigation of the victim’s disappearance. Because of the twenty-one years that passed between the murder and the discovery of the victim’s remains, the medical examiner was unable to determine the victim’s cause of death. The victim may have died from strangulation, a gunshot, or another cause. Even so, no evidence contradicted the State’s theory that the .22- caliber casing found with the victim’s remains in 2014—at the home where the victim lived with Haim in 1993—was fired by the .22-caliber firearm recovered from that same home twenty-one years earlier. Under these facts, the trial court properly denied the motion in limine because the casing was relevant and not unduly prejudicial. See Hetherington v. State, 293 So. 3d 624, 626 (Fla. 1st DCA 2020). B. Upward Departure Sentence In his last claim of error, Haim argues that the trial court improperly imposed an upward departure sentence. Because Haim committed the murder in January 1993, he had a right to be sentenced under the sentencing guidelines in effect at the time of the offense. See Rock v. State, 800 So. 2d 298, 299 (Fla. 3d DCA 2001) (explaining that the laws in effect at the time of the commission of an offense control the punishments that a trial court may impose). Haim’s scoresheet recommended a sentencing range of seven to twenty-two years in prison. But the 1992 guidelines authorized trial courts to impose a sentence outside the recommended range as long as the court entered a written order explaining the reasons for departure. § 921.001(5)–(6), Fla. Stat. (Supp. 1992). Haim challenges the trial court’s reliance on the following aggravating factors as reasons for departing from the guidelines: (1) the crime inflicted severe physical or emotional trauma on the victim, Aaron, or the victim’s family and (2) the crime was committed in the presence of a family member of the victim. We review the trial court’s imposition of an upward departure sentence for an abuse of discretion. See Lawson v. State, 812 So. 2d 518, 518 (Fla. 1st DCA 2002). The court’s reasons for an upward 9 departure must be supported by a preponderance of the evidence. § 921.001(5), Fla. Stat. (Supp. 1992); see Johnson v. State, 695 So. 2d 787, 788–89 (Fla. 1st DCA 1997). As to the first aggravator, Haim argues that any harm suffered by the victim, Aaron, or the victim’s family was inherent in the crime. “It is well established that an inherent component of the crime, being already built into the guideline range, will not justify a guideline departure.” Baker v. State, 466 So. 2d 1144, 1145 (Fla. 3d DCA 1985). But “[p]sychological trauma arising from extraordinary circumstances which are clearly not inherent in the offense charged may properly serve as a clear and convincing reason for departure.” Casteel v. State, 498 So. 2d 1249, 1253 (Fla. 1986). For example, psychological trauma was an acceptable reason for departure when the defendant was convicted of sexual battery with use of a deadly weapon and the victim’s son witnessed the crime. Id. The record supports the trial court’s conclusion that Aaron suffered severe emotional trauma from his mother’s murder. Aaron not only witnessed the murder, but it also led to him being separated from his entire biological family. After the murder, Aaron was adopted by non-family members. He has been in therapy since the murder, and he still suffers from depression. Aaron had to endure not knowing what happened to his mother for over twenty years before discovering her skeletal remains in the back yard of his childhood home. The record also supports the trial court’s conclusion that the victim’s family suffered severe emotional trauma from not knowing what happened to the victim for over twenty years. The speculation around Haim’s involvement in the disappearance caused a divide in the family that still remained at the time of trial. For these reasons, the emotional trauma suffered by Aaron and the victim’s family was not trauma inherent in the crime of second-degree murder. As to the second aggravator, Haim argues that there is insufficient evidence to support a finding that Aaron was present when the murder happened. But the State introduced evidence that Aaron reported two days after the victim’s disappearance that his mother had been hurt, that his father hurt her, and that it occurred at night. The State also introduced testimony that the 10 last time anyone spoke to the victim was the night of January 6. And so, the preponderance of the evidence supports the trial court’s use of these aggravating factors. For these reasons, the trial court did not err in imposing an upward departure sentence. Finding no error by the trial court, we AFFIRM Haim’s judgment and sentence. M.K. 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. _____________________________ Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee. 11