Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ANTHONY PAUL DEAMELIO, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D20-878 June 17, 2022 Appeal from the Circuit Court for Pasco County; Mary M. Handsel, Judge. Jorge Leon Chalela of Jorge Leon Chalela, P.A., Tampa, for Appellant. Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee. VILLANTI, Judge. Anthony Deamelio appeals from his judgment and sentence following his conviction in a jury trial for the offense of lewd or lascivious exhibition under section 800.04(7), Florida Statutes (2018). The trial court erred in denying Mr. Deamelio's motion for judgment of acquittal, made at the end of the State's case and renewed at the close of all evidence, because the evidence was insufficient to prove that a crime had been committed. We therefore reverse Mr. Deamelio's conviction and remand for discharge.1 The operative facts are as follows: On the afternoon of October 26, 2018, Mr. Deamelio was driving in the vicinity of Grand Boulevard and Louisiana Avenue in New Port Richey for the stated reason of looking at a car he knew was for sale in that area. After accomplishing this task, he drove east and turned north on Adams Street, which parallels Grand Boulevard. At the intersection where 1 In this appeal, Mr. Deamelio assigns several points of error, including the denial of his motion for judgment of acquittal; improperly sustained objections limiting his ability to cross- examine witnesses; improper statements made by the prosecutor during opening and closing statements; law enforcement's photoshopped alteration of a photograph of Mr. Deamelio used for identification purposes; and denial of his motion for a new trial. In this highly unusual case, we find merit in all of Mr. Deamelio's claims. However, because the trial court's error in denying Mr. Deamelio's motion for judgment of acquittal requires reversal and remand for discharge, we decline to address the other issues raised. 2 he turned onto Adams Street,2 he was observed by A.B., a twelve- year-old boy.3 Several blocks farther north, Mr. Deamelio turned west (left) on Missouri Avenue (toward Grand Boulevard) and took an immediate right into a parking lot, where he pulled into a parking spot facing Adams Street at a northeasterly angle. According to an exterior security video belonging to a nearby business, it was 14:20:20 (2:20 p.m. plus twenty seconds).4 Two minutes later, A.B., walking north on Adams Street, reached Missouri Avenue. He crossed Missouri Avenue and then veered northwest, diagonally, toward the west side of Adams Street because, according to him, there was a sidewalk on that side of the road. A.B. testified that as he was crossing the street, he saw Mr. Deamelio sitting in a pickup truck in the parking lot. It appeared to 2 On appeal, the State informs us that this was the intersection of Louisiana Avenue and Adams Street, but this was not testified to at trial. 3 The child's initials have been changed to protect his identity. 4 Three security videos from the same business were admitted into evidence. The parties appear to have agreed that it was approximately 15:20, not 14:20 as indicated in the videos. No evidence was adduced by the State with respect to the accuracy of the time or date indicated on the videos. 3 A.B. that Mr. Deamelio was masturbating, which disturbed A.B., so he changed his trajectory and returned to the east side of Adams Street. He did not look back. The security video verifies that A.B. reached the centerline of Adams Street and instantly changed course without changing his gait or speed. The investigating detective testified that A.B. would have been about twenty-eight feet away from the truck at this point. The investigating detective admitted that the area between the parking lot and the street was lined with trees and bushes, but he denied that this obstructed the view from A.B.'s position in the street to where Mr. Deamelio was parked.5 A few seconds later, Mr. Deamelio exited the parking lot and proceeded west on Missouri Avenue. The total time Mr. Deamelio spent in the parking lot was about two minutes. A.B. testified that his view of Mr. Deamelio and the truck was momentary, "a glance." This testimony is consistent with the security video; the maximum amount of time A.B. could have viewed Mr. Deamelio's truck was perhaps a second, and Mr. 5 During the defense's case, a private investigator hired by the defense testified that the distance was about thirty-two feet and that A.B.'s view of the truck would have been obstructed by a tree. 4 Deamelio departed moments later. A.B.'s view was of the passenger side of the truck. A.B. testified that it was a sunny day. Because he was looking west, his view was into the midafternoon sun. A.B. claimed that he was able to see Mr. Deamelio, who was sitting in the driver's seat on the opposite side of the truck from where A.B. was positioned, partially through the passenger side window and partially through the windshield. A.B. testified that he got the impression that Mr. Deamelio was masturbating by the way Mr. Deamelio's hand was moving up and down: "It was the gesture more than anything." He did not know if it was Mr. Deamelio's left hand or right hand. With regard to this impression, A.B. varyingly testified that he was "pretty sure," "almost positive," "eighty to ninety percent sure," and "for all I know he could have been doing something different."6 6 In response to Mr. Deamelio's motion for judgment of acquittal, the State argued that A.B. "very clearly said he sensed it." The State repeated this to the jury during closing argument. But this is not true; A.B. did not make such a statement. Even if it were true, it would be meaningless under these facts. There are only five senses, and the only one involved in this case is sight. To the extent that the prosecutor meant to imply or insinuate that "sense" could mean something other than the five physical senses, we reject this out of hand. For the same common sense reasons that an officer's instincts, hunches, intuition, or "sixth sense" cannot 5 The investigating detective testified that Mr. Deamelio told him that he had received a text message from his girlfriend and had pulled into the parking lot to answer the message.7 The detective did not examine Mr. Deamelio's cell phone to view the texts, nor did he interview Mr. Deamelio's girlfriend to confirm Mr. Deamelio's explanation because "I didn't find [Mr. Deamelio's] statement that he was texting his girlfriend to be credible in any way."8 In addition, support a reasonable suspicion that a crime is being or has been committed, see, e.g., Brown v. State, 224 So. 3d 806, 810 (Fla. 2d DCA 2017); Bowen v. State, 685 So. 2d 942, 944 (Fla. 5th DCA 1996), a witness's "sense" that a crime has been committed must derive from one or more of the five physical senses, see State v. Werner, 609 So. 2d 585, 586 (Fla. 1992) ("[W]e find that the complete definition of 'presence' [in section 800.04] encompasses sensory awareness as well as physical proximity." (emphasis added)); Commonwealth v. Coutu, 42 N.E.2d 622, 632-33 (Mass. App. Ct. 2015) ("[W]hen our case law speaks of 'other senses,' it was meant to limit those available for identification to the five found in the natural world."). 7 The State presented evidence that Mr. Deamelio's driver's side window was down before he entered the parking lot but was rolled up or partially rolled up when he left the parking lot. It was established during the defense's case that the windows in Mr. Deamelio's truck were manual, not electric, and Mr. Deamelio testified that he had rolled up the window while parked to reduce the glare on his cell phone. 8 Mr. Deamelio's counsel did not object to this blatantly improper testimony. "[P]olice officers, as well as other witnesses, are prohibited from offering opinions as to the truthfulness of a 6 the detective did not attempt to ascertain whether it was physically possible for a child of A.B.'s height to have seen Mr. Deamelio's penis through the passenger side window and/or windshield of the pickup truck, looking west in the afternoon of a sunny day from at least twenty-eight feet away, through trees and bushes. In moving for judgment of acquittal, Mr. Deamelio argued that A.B. was not at all certain of what he saw and that the State's evidence did not establish lewd or lascivious exhibition. In denying the motion, the trial court mischaracterized the evidence in several respects, particularly with regard to A.B.'s testimony. For example, A.B. did not testify, as the court stated, that Mr. Deamelio's penis "was exposed, showing the head"; he said, alternatively, that he saw the "tip" of his penis, "I believe that I saw the tip of his penis" witness or a defendant." Charles v. State, 683 So. 2d 583, 584 (Fla. 4th DCA 1996) (citing Capehart v. State, 583 So. 2d 1009, 1013 (Fla. 1991)). This is because "[p]olice officers, by virtue of their positions, rightfully bring with their testimony an air of authority and legitimacy [and a] jury is inclined to give great weight to their opinions." Tumblin v. State, 29 So. 3d 1093, 1101 (Fla. 2010) (quoting Bowels v. State, 381 So. 2d 326, 328 (Fla. 5th DCA 1980)). In this case, the detective's testimony nullified Mr. Deamelio's defense in front of the jury. See Hunt v. State, 284 So. 3d 1092, 1096 (Fla. 4th DCA 2019). This alone constituted grounds for a mistrial, but no objection or motion was forthcoming. 7 (because, he explained, he had only glanced), and that he saw "the tip of it almost."9 Second, the court stated that A.B. testified that Mr. Deamelio masturbated while he looked at A.B. "directly in the eyes." This is not true; A.B. testified only that the person in the truck followed him with his eyes as A.B. was walking.10 Third, A.B. did not testify, as the trial court found, that he saw Mr. Deamelio "moving his hand up and down on the shaft part of a penis"; he said that it was "the gesture [of Mr. Deamelio's hand movements] more than anything" that caused him to think that Mr. Deamelio was 9 The trial court erroneously sustained the State's "speculation" objection to Mr. Deamelio's attempt to impeach A.B. based on A.B.'s deposition testimony that he could have mistaken "it" for something else. See Perez v. State, 949 So. 2d 363, 365-66 (Fla. 2d DCA 2007) (holding that, on cross-examination, counsel may not only "delve into the witness' story to test the witness' perceptions and memory" but may also attempt to impeach or discredit the witness (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974))). Indeed, "[t]he right to a full cross-examination is especially necessary when the witness being cross-examined is the key witness on whose credibility the State's case relies." Tomengo v. State, 864 So. 2d 525, 530 (Fla. 5th DCA 2004) (citing Yolman v. State, 469 So. 2d 842, 843 (Fla. 2d DCA 1985)). In this case, the State's misguided "speculation" objection was repeated and erroneously sustained several times. 10 This appears to conflict with A.B.'s testimony that he only glanced at Mr. Deamelio for a moment. 8 masturbating. Fourth, the court's finding that "the defendant parked where [A.B.] had to walk by," implying that Mr. Deamelio parked in that location knowing that A.B. had to walk past him, is not supported by the evidence. It is undisputed that Mr. Deamelio passed A.B. at an intersection south of the intersection of Adams Street and Missouri Avenue. There was no evidence that Mr. Deamelio knew or could have predicted A.B.'s route.11 Thus, there was no evidence to support an inference that Mr. Deamelio knowingly parked in a location where A.B. "had to walk by." This court reviews the denial of a motion for judgment of acquittal de novo. Fountain v. State, 318 So. 3d 626, 628 (Fla. 2d DCA 2021). "Whether to grant a motion for judgment of acquittal hinges on the sufficiency of the evidence presented at trial and what factual findings the jury could 'fairly and reasonably infer' from that evidence." Grohs v. State, 944 So. 2d 450, 456 (Fla. 4th DCA 2006). "The standard to be employed for all criminal cases regarding the sufficiency of the evidence 'is simply whether the State presented competent, substantial evidence to support the verdict.' " Melton v. 11 There is no suggestion in the record that Mr. Deamelio knew A.B., knew where he lived, or had been following him. 9 State, 317 So. 3d 292, 297 (Fla. 2d DCA 2021) (quoting Bush v. State, 295 So. 3d 179, 200 (Fla. 2020)). This standard is met when "the evidence relied upon to sustain the ultimate finding [is] sufficiently relevant and material [such] that a reasonable mind would accept it as adequate to support the conclusion reached." De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). However, where the facts adduced by the State are insufficient to prove the elements of the offense beyond a reasonable doubt, "the case should not be submitted to the jury, and a judgment of acquittal should be granted." Baugh v. State, 961 So. 2d 198, 204 (Fla. 2007) (quoting Williams v. State, 560 So. 2d 1304, 1306 (Fla. 1st DCA 1990)). To support a conviction for the offense of lewd or lascivious exhibition, the State was required to prove that Mr. Deamelio intentionally masturbated or intentionally exposed his genitals in a lewd or lascivious manner in the presence of a child under the age of sixteen years. § 800.04(7)(a). " 'In the presence of' means that [the victim] saw, heard, or otherwise sensed that the act was taking place." Fla. Std. Jury. Instr. 11.10(e). As noted above, the only sense involved in this case is sight, and even that was limited to a "glance." 10 In summary, the foundation of the State's case consisted of a momentary "glance" at a man sitting in the driver's seat of a parked truck twenty-eight feet or more away, from the passenger side of the vehicle. A.B.'s impression that Mr. Deamelio was masturbating and that he believed he could see the tip of Mr. Deamelio's penis amounted to no more than inferences based on speculation. Importantly, Mr. Deamelio's claim that he was texting his girlfriend is supported by the time stamps on Mr. Deamelio's text messages, which coincide with the time the State alleged that the offense was committed.12 Worse, this critical and likely exculpatory evidence was ignored without a second thought by the investigating detective. In conclusion, the State failed to prove that Mr. Deamelio was engaged in any visible conduct that would permit a jury to conclude 12 The State argued to the jury that the time stamps on the text messages, which differed from the security video timestamps by about two minutes, proved that the text messages were not sent while Mr. Deamelio was in the parking lot. This statement distorted the evidence and misled the jury; there was no evidence that the security video timestamps—which were off by about an hour to begin with—were more accurate or trustworthy with respect to the minute than Mr. Deamelio's iPhone's internal clock. 11 beyond a reasonable doubt that a crime—any crime—had been committed. Because the evidence was legally insufficient to create a jury question as to whether an offense had been committed, the trial court erred by denying Mr. Deamelio's motion for judgment of acquittal. Accordingly, we reverse Mr. Deamelio's conviction and remand with instructions to enter a judgment of acquittal and to discharge him. Reversed and remanded for entry of judgment of acquittal and for discharge. BLACK and STARGEL, JJ., Concur. Opinion subject to revision prior to official publication. 12