Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT FRED OWEN DAVIS, ) ) Appellant, ) ) v. ) Case No. 2D18-2613 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed January 15, 2021. Appeal from the Circuit Court for Pasco County; Susan Barthle, Judge. Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee. KHOUZAM, Chief Judge. Fred Owen Davis appeals his convictions and sentences for battery and delivery of marijuana to a minor. He was originally charged with lewd or lascivious molestation (count one) and delivery of Xanax to a minor (count two), but the State amended the information to add the third count—delivery of marijuana to a minor—on the first day of trial. The jury found Davis guilty of the lesser included offense of battery on count one, not guilty on count two, and guilty as charged on count three. Davis was sentenced to eleven months and twenty-nine days in county jail on count one and twenty-four months in prison on count three. On appeal, Davis argues that the circuit court erred by denying his motion for continuance and overruling his objections to comments the prosecutor made during closing argument. Because the court erred by allowing the State to proceed on an entirely new substantive charge without granting Davis a continuance to prepare a defense to it, we reverse and remand for a new trial on that count. And although the prosecutor's comments during closing were improper, they were harmless in context. Accordingly, we affirm Davis's remaining conviction for battery. We will address each of Davis's arguments in turn. I. The Motion for Continuance On the first day of trial, before jury selection began, the State amended the information to add an entirely new offense: delivery of marijuana to a minor. Defense counsel said the new charge was a total surprise and he was not prepared to defend against it. Counsel admitted that he was aware that there was some testimony involving marijuana but maintained there had been no indication that the marijuana offense would be charged. Accordingly, he requested a continuance. The State responded that the facts of the marijuana offense were well known from the very beginning of the case and the amended information did not add any new facts. The court denied the request for continuance on the basis that the case had been pending -2- for two years and the facts of the marijuana charge had been known all along. Opening statements and the presentation of evidence began two days later. We conclude that the circuit court abused its discretion by denying the continuance and that Davis was prejudiced by the State's addition of an entirely new substantive charge on the first day of trial. It is true that the decision to grant a motion for continuance is within the circuit court's discretion, and the denial of such a motion should not be reversed unless there has been a palpable abuse of that discretion which appears clearly in the record. Weible v. State, 761 So. 2d 469, 472 (Fla. 4th DCA 2000) (citing Magill v. State, 386 So. 2d 1188, 1189 (Fla. 1980)). It is also "well-settled that the state may amend its information pre-trial or even during trial, either as to substantive or non-substantive matters, unless the defendant is prejudiced thereby." State v. Burgess, 153 So. 3d 286, 289 (Fla. 2d DCA 2014) (quoting State v. Clifton, 905 So. 2d 172, 178 (Fla. 5th DCA 2005)). Indeed, "[w]here the defendant is afforded an adequate opportunity to investigate the evidence and prepare a defense, an amendment to the information is not improper even where the amendment adds a new charge with different elements of proof." Id. But "[t]he common thread running through those cases in which a palpable abuse of discretion has been found is that defense counsel must be afforded an adequate opportunity to investigate and prepare any applicable defense." Weible, 761 So. 2d at 472 (quoting Smith v. State, 525 So. 2d 477, 479 (Fla. 1st DCA 1988)). Here, the record clearly shows that Davis was prejudiced by the State's amendment because it added a completely new substantive offense with completely different elements of proof immediately before trial began, without giving defense -3- counsel an opportunity to investigate and prepare any applicable defense. The circuit court gave too much weight to the fact that the underlying factual basis for the marijuana offense was known from the inception of the case. Just because defense counsel was aware of the facts does not mean that he prepared to defend against charges based on those facts—rather, defense counsel explained that even though the facts had been known from the beginning, there was no indication during the two-year prosecution that the State planned to file charges based on those facts. It was a "total surprise." The Fourth District's opinions in Henderson v. State, 810 So. 2d 999 (Fla. 4th DCA 2002), and Peevey v. State, 820 So. 2d 422 (Fla. 4th DCA 2002), are instructive. The State relies on Henderson, arguing that Davis had enough time to adequately prepare his defense to the new charge and thus was not prejudiced by the amendment. By contrast, Davis relies on Peevey, contending that he did not have enough time to adequately prepare his defense to the new charge and thus was prejudiced by the last-minute amendment. In our view, the circumstances of the instant case are more akin to those in Peevey than to those in Henderson. Henderson involved the State amending the information to charge burglary instead of attempted burglary. 810 So. 2d at 1000. On the Friday before the Monday trial, the State advised the defense that it intended to amend the information, but the information was not actually amended until Monday morning. Defense counsel objected to the amendment and moved for a continuance, arguing that he would have investigated the case differently if he had known that the State was going to charge the defendant with burglary. Id. at 1000-01. The court overruled the objection and denied -4- the motion for continuance but gave the defense the opportunity to interview any witnesses before they testified. Id. at 1001. The Fourth District affirmed on the basis that there was no drastic change in the elements of proof and the defense had an adequate opportunity to investigate and prepare a defense on the amended charge, explaining: The effect of the state's amendment was to raise the legal issue of whether the carport was part of the "curtilage" of the dwelling within the meaning of the burglary statute. The defense was aware of the proposed amendment the Friday before the trial was to begin. This was adequate time for the defense to confront the amended charge. Id. at 1001-02. The court specifically noted that cursory research would have uncovered two key cases on the curtilage issue, the crucial facts were not in dispute, and the defense had adequate opportunity to develop a legal argument regarding the carport as curtilage. Id. Further, the Fourth District also relied on the trial court's expressly granting the defense the ability to interview witnesses again before they took the stand. Id. In Peevey, the defendant was originally charged with one count of aggravated assault. 820 So. 2d at 423. The State amended the information on the morning of trial to add another count of aggravated assault against a different victim. The defense objected to the amendment and moved for a continuance, arguing that Peevey would be prejudiced because he had deposed witnesses regarding only the one pending pretrial charge, having no reason to also depose them as to an uncharged crime. The State responded that the prosecution witnesses had already testified in deposition that the defendant pointed his weapon at both victims. The court denied the motion for a continuance and allowed the State to amend the information. Id. -5- The Fourth District reversed, noting that "[t]here is a significant difference . . . between amending a charged offense and the filing of a new and entirely different offense." Id. at 424 (quoting Green v. State, 728 So. 2d 779, 781 (Fla. 4th DCA 1999)). Because the State amended the information to charge an entirely new offense, the elements of proof were drastically different despite the fact that the new charge arose from the same factual circumstances. Without time to investigate the new offense—by, for example, deposing the witnesses with the new offense in mind—the defendant was prejudiced and the trial court should have either denied the amendment or granted a continuance. Id. The Peevey court specifically explained that Henderson was distinguishable because in that case the State had given the defense advance notice of the amendment so there had been adequate time to investigate and prepare a defense to the new charge. Moreover, the amendment in Henderson did not drastically change the elements of proof. Id. We conclude that the circumstances of the instant case are more akin to those in Peevey than to those in Henderson because the State amended the information on the first day of trial to add a completely new substantive offense with completely different elements of proof. The State emphasizes that it made the amendment on the day jury selection began, whereas opening arguments and the presentation of evidence did not proceed until two days later. But this simply was not enough time for defense counsel to adequately investigate the evidence and prepare a defense for an entirely new charge. Moreover, the new charge would have impacted counsel's preparation for jury selection. Accordingly, it is apparent that Davis was -6- prejudiced by the State's amendment, and thus the circuit court abused its discretion by denying the motion for a continuance. We must reverse and remand for a new trial on count three. II. The Prosecutor's Comments in Closing Argument During closing argument, the prosecutor made the following comments about Davis gesturing at the victim while she was on the witness stand: The fact that she's no perfect angel, that she may do things—she may smoke and use weed sometimes, that doesn't mean you absolutely cannot trust her. There's an instruction that talks about child witnesses. It essentially tells you to treat her testimony just like any other witness, just like an adult witness whether it’s a civilian, whether it's law enforcement. Use those same factors, those same factors we just talked about when deciding what about her testimony is credible. Think about how the Defense treated her. That wasn't a cross-examination you saw yesterday, that was an interrogation. That was pretty brutal. How did she handle it? Did she handle it the way that you think somebody that's been an alleged victim would? She cried. She got upset about it, but did she crumble? Not even when Fred Davis is over there making gestures at her did she change her story. (Emphasis added.) Defense counsel objected to facts not in evidence. The court overruled the objection. Defense counsel then asked for a cautionary instruction. The court declined, noting that the jury must have seen Davis's behavior: All right. Let me just, for the record, Mr. Davis was admonished. I had to call you up about the gestures and the carrying on. So the jury had to have seen it too. I'm not going to give him—I'm going to overrule. Defense counsel lodged a standing objection, and the prosecutor continued: "Like I said, she didn't crumble; she didn't change her story; she didn't shut down even when Fred Davis is sitting over there making gestures at her when she's testifying." -7- Later in closing, the State made reference to Davis falling asleep during the trial, commenting that he was "[b]ored to tears yesterday when he [fell] asleep during the testimony." Again, the court overruled defense counsel's objection. The State noted that Davis could be heard snoring on the audio, and the record shows that Davis had been admonished for snoring loudly during trial testimony. While the jury deliberated, defense counsel renewed his request that the court instruct the jury not to consider any comments on Davis's off-the-stand demeanor or gestures. The court again declined, reasoning that giving such an instruction at that point in the proceedings would "make a big feature of it." Although acknowledging that the comments may have been improper, the court emphasized that it had needed to call counsel up multiple times to get Davis to stop making faces and that Davis had been snoring so loudly that it was difficult to hear the witnesses. It is true that "comments on a defendant's demeanor off the witness stand are clearly improper." Pope v. Wainwright, 496 So. 2d 798, 802 (Fla. 1986). And Davis relies on Baldez v. State, 679 So. 2d 825, 827 (Fla. 4th DCA 1996), in which the Fourth District specifically held that such comments were improper where "the prosecutor was using the appellant's demeanor off of the witness stand as a reason to bolster the credibility of the child witnesses whose testimony conflicted on certain points." But Baldez is factually distinguishable from the instant case. In Baldez, the prosecutor commented that the defendant was glaring at a child witness while the child was on the stand and that the child was scared. 679 So. 2d at 826. The court concluded that the comment could not be considered harmless because "[i]t suggested to the jury that the appellant was guiltily attempting to intimidate -8- the child witnesses; that he harbored ill will against them; and that the state's witnesses were telling the truth because they still testified against the appellant despite his attempt to intimidate them." Id. at 827. Similarly, it was improper for the prosecutor to comment on Davis's demeanor off the witness stand, especially in the context of bolstering the child victim's credibility. However, the comments were not nearly as egregious as those at issue in Baldez. In Baldez, the prosecutor characterized the defendant's expression as "glaring" and explicitly suggested that the child witnesses were scared of him. In contrast, the prosecutor in this case referenced "gestures" Davis was making without characterizing them at all. There is nothing in the Baldez opinion indicating that the defendant's demeanor during trial was otherwise put on the record. Here, on the other hand, the record clearly shows that Davis was making gestures and facial expressions so obvious during trial that he was repeatedly admonished by the court for doing so. Even the victim commented about it while she was on the witness stand, saying, "[Y]ou can shake your head all you want." This prompted a bench conference at which the court told defense counsel: "You know what I'm going to say. Tell him to stop." Moreover, Davis was snoring so loudly during trial that it interfered with witness testimony, and the court had to admonish him for that as well. Under these circumstances, the jury was certainly aware of Davis's behavior regardless of whether the prosecutor drew attention to it, and therefore, the prosecutor's brief improper comment was harmless error. Accordingly, we reverse and remand for a new trial on count three, delivery of marijuana to a minor. However, we affirm Davis's conviction for battery on count one. -9- Reversed in part and remanded; affirmed in part. NORTHCUTT and BLACK, JJ., Concur. - 10 -