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 LISA ANN LOBB, ) ) Appellant, ) ) v. ) Case No. 2D18-4137 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed January 31, 2020. Appeal from the Circuit Court for Lee County; Robert Branning, Judge. Howard L. Dimmig, II, Public Defender, and Susan M. Shanahan, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee. VILLANTI, Judge. Lisa Lobb appeals her conviction and sentence for the offense of resisting an officer without violence. On appeal, she argues that the evidence was insufficient to warrant protective custody pursuant to the Marchman Act1 and that, as such, the deputy's attempt to take Lobb into protective custody fell outside the lawful execution of the deputy's legal duties. Although we are not unsympathetic to an officer's attempt to ensure that citizens do not come to harm, for the reasons set forth below, we must reverse the trial court's denial of the motion for judgment of acquittal. Facts The relevant incident arose after emergency medical services (EMS) were dispatched to a gated community in response to a call about a woman lying in the grass on the side of the road. An emergency medical technician (EMT) testified that when she arrived, she and her partner approached Lobb and called out to her. Lobb immediately sat upright and told them that she was okay, explaining that she could not find a house that she was looking for so she lay down in the grass to smoke a cigarette. The EMT testified that neither she nor her partner had to rub Lobb's sternum to wake her. The EMT found Lobb's vitals to be within normal limits and testified that Lobb did not appear drunk even though she admitted to having a few drinks earlier that day. Lobb was not slurring her words and informed them that she did not want to go to the hospital. The EMT described Lobb as very cooperative and said that Lobb walked over and sat on the bumper of the ambulance without assistance. Lobb told the EMT that she was staying with a relative in the neighborhood but was unfamiliar with the area because she was from out-of-town. Lobb explained that she and her friends had just come back from a comedy show when 1§§ 397.301–.998, Fla. Stat. (2017). -2- Lobb and her friend got into an argument. Lobb got out of the car but accidentally left her phone in the car. The EMT's partner attempted to call Lobb's boyfriend, but there was too much background noise on the other end to hear any conversation. The EMT testified that while her partner attempted to contact the boyfriend, Deputy Rivera arrived at the scene. The EMT advised Deputy Rivera that Lobb had been cleared and that she did not want to go to the hospital. The EMT started to walk away when she heard Deputy Rivera direct Lobb to stand up. Within one minute, Deputy Rivera and Lobb were in a scuffle. Deputy Rivera testified that she knew Lobb was "under the influence of something" because Lobb was acting very emotional. Deputy Rivera also testified that one of the EMTs told her they "rubbed her chest multiple times" to get her to wake up. Specifically, Deputy Rivera testified: [Lobb's] balance was unsteady. She wasn't really making sense. She had stated to me that she had been drinking. The odor of an alcohol beverage was emitting from her mouth. From her facial area. And you can just tell her body wasn't—her eyes were red and glossy, so I knew that something was going on. Q. Okay. At this point, what did you do in the course of your investigation? A. Well, since she was being a little bit uncooperative—EMS had cleared her, she didn't want to go with EMS. She didn't know what she wanted to do. Kind of pacing back and forth, and I said, well, I've got to do something. I can't leave her here. If I would have left her there, that's my job on the line if something happens to her, or she does something to someone, because she's—any normal, rational person who is not under any influence, wouldn't have acted the way she did. .... -3- Q. Okay. So, at this point what did you determine? A. I determined that for her safety, and for the safety of others, I was going to Marchman Act her. Because I thought it would be best for her to sleep it off than leave her there in the grass, or alone in a neighborhood that she has no way of contacting anybody or doing anything, and she had stated that she lives in Punta Gorda. We are a long way from Punta Gorda. No ride. I didn't want anything to happen to her. So, I made the better judgment of saying, you know what, I am going to Marchman Act her . . . . .... Q. Did you explain to her what a Marchman Act was? A. I did, briefly, and she declined still. And from there, since she was being combative, I asked EMS to please clear her one more time—I think, it was twice or three times that they had to clear her. And once they cleared her the final time, I told her, okay, that's it, you know, you are going to come with me. You are not under arrest, right. I made it clear she's not in trouble. She's not under arrest. Just needs to go somewhere for the night to sleep this off. Q. Why would you ask EMS to clear her at that time? A. Because I wanted to cover my own back, you know, just to make sure that all my ends are covered. And with everything that was going on, I wanted to—I didn't want—I just didn't want to do it one time. I wanted to make sure that, okay, not only did I clear her one time, I cleared her a second time to make sure that no medical events were happening. Because being under the influence can mimic diabetes, and I wanted to make sure nothing medically was going to happen. So, if there was something medically going on, she wouldn't even have to deal with me. She would have gone straight to the hospital, and they would have done everything they could to get her to come back and be okay. Q. Deputy Rivera, at any point, did you try to determine whether or not the defendant met the criteria of a Baker Act? -4- A. I did. She didn't state anything that she wanted to harm herself, or she had any suicidal thoughts or anything like that. Q. So, based on your investigation, it was that she met the Marchman Act criteria? A. Yes, sir. .... Q. And when you attempted to grab her wrist, what happened? A. I did. I had tried to grab her wrist, and that's where the fight was on. . . . She resisted, she pulled back. I tried to grab her. So, what I did was, I grabbed her neck, threw her to the ground, and it was a ground fight. She was face down. I had her at one point, and she turned right back around, and she was facing me, and it was a fight. Lobb testified that after Deputy Rivera told her she was not under arrest, she responded, "I am out of here. See you later ladies," and started to leave. Lobb stated that as she attempted to leave, Deputy Rivera attacked her from the side, forced her to the ground, and started choking her. Defense counsel moved for a judgment of acquittal on the basis that Deputy Rivera was not in the lawful execution of a legal duty when she took Lobb into custody. The trial court denied the motion, noting that it was the province of a jury to weigh the evidence and any possible discrepancies in testimony. Argument An appellate court reviews a ruling on a judgment of acquittal under a de novo standard and must determine whether the conviction was supported by competent, substantial evidence. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). "If, after viewing the evidence in the light most favorable to the State, a rational trier of fact -5- could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Id. (citing Banks v. State, 732 So. 2d 1065 (Fla. 1999)). For the crime of resisting an officer without violence, the State is first required to prove that the officer was lawfully executing a legal duty and that the defendant then resisted the execution of such duty. B.M. v. State, 212 So. 3d 526, 528 (Fla. 2d DCA 2017) (citing § 843.02, Fla. Stat. (2015); E.A.B. v. State, 851 So. 2d 308, 311 (Fla. 2d DCA 2003)). Notably, "[i]f an arrest is not lawful, then a defendant cannot be guilty of resisting it . . . the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence." C.W. v. State, 76 So. 3d 1093, 1096 (Fla. 3d DCA 2011) (quoting Jay v. State, 731 So. 2d 774, 775 (Fla. 4th DCA 1999)). See also B.D.H. v. State, 903 So. 2d 390, 391 (Fla. 3d DCA 2005) ("[T]he crime of resisting an officer without violence requires proof that the arrest was lawful."). The Marchman Act provides that a law enforcement officer may take an individual involuntarily into protective custody when the officer has a good faith belief that the individual is "substance abuse impaired" and, as a result of such impairment: (1) Has lost the power of self-control with respect to substance abuse; and (2)(a) Is in need of substance abuse services and, by reason of substance abuse impairment, his or her judgment has been so impaired that he or she is incapable of appreciating his or her need for such services and of making a rational decision in that regard, although mere refusal to receive such services does not constitute evidence of lack of judgment with respect to his or her need for such services; or (b) Without care or treatment, is likely to suffer from neglect or refuse to care for himself or herself; that such -6- neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and that it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services, or there is substantial likelihood that the person has inflicted, or threatened to or attempted to inflict, or, unless admitted, is likely to inflict, physical harm on himself, herself, or another. § 397.675, Fla. Stat. (2017). See also §§ 397.677, .6772. If the individual appears to meet the involuntary admission criteria, then law enforcement has the option of either taking the individual to a hospital or detoxification facility or, in the case of an adult, detaining the individual at a jail or detention facility. § 397.6772(1). This court addressed the issue of the lawful execution of a legal duty in enforcing the Marchman Act in White v. State, 170 So. 3d 77 (Fla. 2d DCA 2015). The incident in White arose after law enforcement received a call about a man lying in the road. Id. at 78. A deputy found White initially unresponsive and smelling heavily of alcohol. Id. The deputy described White as confused, unstable, and unable to respond to multiple inquiries about "a sober adult who could care for him in his intoxicated state . . . ." Id. The trial court determined that the police were authorized to take Mr. White into protective custody for White's own safety. Id. This court affirmed, holding that "[t]he officer's testimony supports a good faith belief that Mr. White had lost the power of self-control with respect to alcohol use and that he posed a danger to himself unless taken into protective custody." Id. This case is clearly distinguishable from White. At no point did Deputy Rivera testify that Lobb appeared to have lost the power of self-control with respect to substance use. It seems that Deputy Rivera focused on the last provision of the statute—that she believed Lobb posed a danger to herself unless taken into protective -7- custody. But there were no supporting facts to establish that Lobb posed a danger to herself, only Deputy Rivera's speculation. And while the trial judge observed that some of the difficulty of this case arose from the discrepancies between the testimony of the EMT and the deputy, such discrepancies are not dispositive to the resolution of this issue. The EMT stated that Lobb did not appear drunk and that her vitals were normal. She also indicated that no one had to rub Lobb's sternum to wake her. They were in the process of contacting someone; however, there was too much background noise to effectively communicate about the situation with anyone. On the other hand, most of Deputy Rivera's testimony seemed to indicate that she simply did not know what to do with Lobb. Deputy Rivera acknowledged that EMS had cleared her multiple times but found her uncooperative because she did not want to go to the hospital. Deputy Rivera said that Lobb never indicated that she wanted to harm herself. Deputy Rivera stated that she was concerned because Lobb did not have a ride, adding that "her job was on the line" if something happened to Lobb and that she needed to make sure that all of her "ends" were "covered." Thus, any discrepancy between the EMT and Deputy Rivera's testimony is legally inconsequential here because, even resolving those differences in favor of Deputy Rivera's version, detention under the Marchman Act was still not factually justified. From all accounts, it appears this was a situation in which both the EMT and Deputy Rivera were simply trying to figure out what to do with Lobb. Ultimately, Deputy Rivera concluded that the Marchman Act was appropriate because she "didn't want anything to happen to her." While this might be a commendable consideration, it -8- does not support a legal finding that the deputy had an objective good faith belief that Lobb was (1) "substance abuse impaired," (2) had "lost the power of self-control with respect to substance use," and (3) was in need of substance abuse services or likely to come to harm without care or treatment, all of which are prerequisites to law enforcement using the Marchman Act to take a person into protective custody. Accordingly, although the State argues that this was a credibility issue for the jury to determine, Deputy Rivera's testimony did not meet the factual threshold necessary to take Lobb into protective custody under the Marchman Act. Under all versions, Lobb was breaking no law, explained her presence, was responsive and articulate, and had been checked and cleared multiple times by the EMT. Thus, Deputy Rivera's speculation that something "might" happen to Lobb was not a legally sufficient criterion, under these facts, to utilize the Marchman Act to detain Lobb for the purposes of protective custody. In sum, even in the light most favorable to the State, Deputy Rivera was not executing a legal duty when she grabbed Lobb's wrist to take her into protective custody. Hence, Lobb was legally permitted to resist arrest without violence. See C.W., 76 So. 3d at 1096. Because Lobb's conviction for resisting without violence was not supported by competent, substantial evidence, we reverse Lobb's conviction and sentence. Reversed and remanded for Lobb's conviction and sentence to be vacated. KELLY and LUCAS, JJ., Concur. -9-