Full Opinion

Third District Court of Appeal State of Florida Opinion filed May 20, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-0051 Lower Tribunal No. 17-3028 ________________ Kasheena Mordica, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge. Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Asad Ali, Assistant Attorney General, for appellee. Before LINDSEY, HENDON, and MILLER, JJ. LINDSEY, J. Kasheena Mordica appeals her conviction and sentence for attempted second- degree murder and leaving the scene of an accident involving serious bodily injury. Because the trial court did not deny Mordica her right to present her theory of defense to the jury and did not abuse its discretion with respect to its evidentiary rulings, we affirm. I. PROCEDURAL AND FACTUAL BACKGROUND Mordica and the victim, Ashley Witherspoon, have known each other for over ten years. During that time, they have both been involved in a dating relationship with Marcus Mack. These respective relationships have been the source of disagreements and arguments between Mordica and Witherspoon, which have involved physical altercations and cursing and threatening each other via text and social media. In October of 2016, Witherspoon and Mordica’s relationship went from “bickering” to “putting the beef aside and becoming ok with each other.” As a result, they both agreed to date Mack simultaneously. However, this arrangement broke down after about a month because Mack and Mordica were arguing too much. On or about February 13, 2017, Mack and Witherspoon were talking outside of Witherspoon’s residence when Mordica drove by, saw them, and stopped her car on the street next to the sidewalk. Mordica and Mack began to argue while Mordica was still inside her car. Mack walked away and towards his car, which was parked on the street in front of Mordica’s car. As he approached his car, Mordica lightly 2 hit him with her car, causing him to fall three or more times. After the last hit, Mack was unable to get back up and was pinned on the ground between Mordica’s car and his car. Witherspoon went around the back of Mordica’s car and tried to speak to Mordica through the passenger side window, but Mordica rolled up the window. According to Witherspoon, Mordica was “hysterical” and “ballistic.” To persuade Mordica to calm down and to diffuse the situation, Witherspoon opened the car door and attempted to speak to Mordica. Mordica then placed her car in reverse and began to accelerate, which caused Witherspoon to quickly jump into the front car seat, knees first, to avoid being hit by the open car door. Witherspoon’s left knee was on the front passenger seat, but her right leg was dangling out of the car. While Mordica continued to back up, Witherspoon was holding onto the headrest with both her hands. 1 Mack testified that although there was a lot of dust and he could not see what was going on, Mordica and Witherspoon were “tussling.” Witherspoon disagreed and denied reaching into the car, denied trying to grab Mordica, denied attacking Mordica, and denied hitting Mordica. Mordica did not testify. While reversing the car, Mordica eventually hit a tree, causing the passenger door to break off from the car. Witherspoon then “threw herself” out of the car and 1 Witherspoon had been holding her cell phone in one hand when she jumped into Mordica’s car. It was later found in the floor of Mordica’s the car. 3 landed on her backside, but her right leg was stuck underneath Mordica’s car. Mordica placed her car in drive, accelerated, and ran over Witherspoon’s leg in the process. According to Witherspoon, she was “screaming to the top of [her] lungs.” Officers responded to the scene, and Witherspoon was transported to the hospital. 2 The State filed an information charging Mordica with attempted second- degree murder and leaving the scene of an accident involving serious bodily injury. A jury found her guilty on both counts. Mordica filed, and the trial court granted, a motion for downward departure. In so doing, the trial court sentenced Mordica to 364 days in the county jail followed by two years of community control and ten years of probation. Mordica filed this timely appeal. 3 III. ANALYSIS On appeal, Mordica raises the following three points: (1) the trial court denied Mordica her right to have the jury fairly decide whether her actions were justified and lawful because they were allegedly done while resisting an attempt to commit a felony upon her; (2) the trial court abused its discretion in excluding certain specific text messages Witherspoon allegedly sent to Mordica; and (3) the trial court abused its discretion by precluding the defense from impeaching Witherspoon with prior 2 Multiple surgeries were performed on Witherspoon, including amputation of her right leg. 3 On May 16, 2019, Mordica was released from custody on a supersedeas bond pending this appeal. 4 statements regarding whether she was screaming in pain at the time Mordica left the scene of the incident. A. Justifiable Attempted Homicide Florida Standard Jury Instruction 7.1 includes a justifiable (attempted) homicide instruction, which provides as follows: The [attempted] killing of a human being is justifiable [attempted] homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the [attempted] killing. See also § 782.02, Fla. Stat. (2019). During the charge conference, Mordica requested to add “or conveyance” to the standard language, i.e., “while resisting an attempt . . . to commit a felony in any dwelling house [or conveyance] . . . .” In declining Mordica’s request for the additional language, the trial court found that Mordica’s basis for requesting the additional language—that she was in a conveyance (her car) at the time of the incident—was covered by the first portion of the instruction: “The [attempted] killing of a human being is justifiable [attempted] homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant . . . .” We review a trial court’s rulings on jury instructions for an abuse of discretion. Chacon v. Philip Morris USA, Inc., 254 So. 3d 1172, 1175 (Fla. 3d DCA 5 2018) (citing St. Paul Mercury Ins. Co. v. Coconut Grove Bank, 106 So. 3d 452 (Fla. 3d DCA 2009)); see also Barbour v. Brinker Fla., Inc., 801 So. 2d 953 (Fla. 5th DCA 2001) (holding that the denial of proposed changes to the standard instructions was not an abuse of discretion). Mordica alleges the trial court erred in excluding the additional language in the jury instruction because it was necessary to place the instruction in the proper context given the evidence in the case. We disagree. Based on the record before us, the trial court did not abuse its discretion and commit reversible error.4 In order to be entitled to a special jury instruction, the party making the request must prove that: “(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or 4 The role of the appellate court is to correct only reversible errors. See Doe v. Baptist Primary Care, Inc., 177 So. 3d 669, 673 (Fla. 1st DCA 2015) (“Our exclusive duty as a court of appeal is ‘to determine whether the [lower tribunal] made any ruling or conducted the proceedings in a manner contrary to established principles of law to the prejudice of the appellant.’” (quoting Fla. Dep’t of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987))). It is not to reweigh and consider facts or second guess the discretion exercised by the trial court. Even if an appellate panel may agree that, were it sitting as the trial court, a different ruling would have been made, this is a legally insufficient basis for reversal. See Dinkel v. Dinkel, 322 So. 2d 22, 24 (Fla. 1975) (“Were this Court to sit as a trier of fact and hear all the evidence, we might have reached a conclusion different from that of the trial judge. However, neither this Court nor the District Court can substitute its judgment for that of the trier of fact, absent a finding of an abuse of discretion . . . .”). 6 confusing.” Bogle v. State, 213 So. 3d 833, 853 (Fla. 2017) (quoting Stephens v. State, 787 So. 2d 747, 756 (Fla. 2001)). “While a defendant maintains the right to have the jury instructed on any valid theory of defense, failure to grant a modification to standard instructions is not an error where the instructions given adequately cover applicable legal standards and the defendant’s theories of the case.” Talley v. State, 260 So. 3d 562, 570 (Fla. 3d DCA 2019) (citing Chiarenza v. State, 217 So. 3d 128 (Fla. 3d DCA 2017); Stephens, 787 So. 2d at 755.). Mordica’s requested special instruction was identical to the standard jury instruction on justifiable attempted homicide except for the addition of two words: “or conveyance.” The first half of the instruction focuses on the commission of a felony against an individual, while the second half focuses on the perpetration of a felony in a dwelling house while an individual is present. We agree with the trial court that the standard instruction covered Mordica’s theory of defense without the additional language concerning the conveyance. Thus, because Mordica cannot prove that “the standard instruction did not adequately cover the theory of defense,” we can find no abuse of discretion. Mordica also argues that the standard justifiable attempted homicide instruction was negated because she was prohibited from arguing that Witherspoon was engaged in a felony. Prior to closing arguments, Mordica sought to argue that Witherspoon was engaged in criminal conduct during the incident, which caused 7 Mordica to flee the scene and justifiably commit the charged offenses. She contended there was evidence that Witherspoon committed a burglary with intent to commit assault or battery. The trial court precluded Mordica from raising this argument, finding there “was no evidence in the record . . . and no witness could testify or . . . come to a legal conclusion that any actions or inactions by [Witherspoon] constitute[d] a felony.” “The trial court, in the exercise of its discretion, controls the comments made in closing arguments, and we have repeatedly held that the trial court’s ruling on these matters will not be overturned unless a clear abuse of discretion is shown.” Hooper v. State, 476 So. 2d 1253, 1257 (Fla. 1985) (citing Davis v. State, 461 So. 2d 67 (Fla. 1984); Teffeteller v. State, 439 So. 2d 840 (Fla. 1983)); see also Pierre v. State, 844 So. 2d 658 (Fla. 3d DCA 2003) (“Regarding closing arguments, we conclude that the trial court’s rulings were within its discretion.”). The trial court recognized and acknowledged Mack’s testimony that Mordica and Witherspoon were “tussling,” yet left the characterization of that evidence for the jury to decide while stopping short of expressly instructing the jury that such testimony was sufficient to find as a matter of law that Witherspoon was committing a felony against Mordica. In so doing, the trial court reminded the parties that Witherspoon had not been charged with a crime and that she was not on trial. The 8 trial court did, however, allow Mordica to argue to the jury that a reasonable person, under similar circumstances would flee, run away, or be afraid. There was no testimony to support a finding that Witherspoon committed the specific felony of burglary of an occupied conveyance. Further, neither Mack nor Witherspoon testified that Witherspoon opened the car door with the intent to commit an assault, battery, or other crime within the van or any other crime. Witherspoon testified that she opened Mordica’s passenger side door to attempt to defuse what was an escalating situation. Although Mack testified that Witherspoon and Mordica “tussled” in the car, he did not testify regarding Witherspoon’s intent in opening the car door. Because there was no evidence Witherspoon opened the car door with the intent to commit a crime, we find no abuse of discretion. See Drew v. State, 773 So. 2d 46, 52 (Fla. 2000) (“[A]n entry into a vehicle without the requisite intent to commit a separate crime therein is not a burglary.”); J.J.D. v. State, 973 So. 2d 1254, 1254-55 (Fla. 2d DCA 2008) (“The supreme court has emphasized that ‘a proper analysis of the offense of burglary must focus both on the act constituting the entry and the intent to commit an offense therein.’ [Drew, 773 So. 2d at 52]. ‘[C]ourts must be careful not to end the analysis once it is determined that an entry has occurred . . . . [s]uch a limited analysis would render meaningless that portion of the burglary statute requiring an intent to commit an offense within . . . .’ Id.”). 9 B. Cross-Examination Regarding Text Message Threats “A trial court’s rulings regarding the scope and limitations of cross- examination on the admissibility of evidence rest in the sound discretion of the court and is subject to review for abuse of that discretion.” Sexton v. State, 221 So. 3d 547, 554 (Fla. 2017) (citing McCoy v. State, 853 So. 2d 396, 406 (Fla. 2003)); see also Rolle v. State, 215 So. 3d 75, 79 (Fla. 3d DCA 2016); Garcia v. State, 974 So. 2d 1154, 1155 (Fla. 3d DCA 2008). Mordica contends the trial court abused its discretion by limiting her cross- examination of Witherspoon regarding specific text message threats and allowing the State to elicit a specific threat made by Mordica to Witherspoon. Based on the context of Witherspoon’s testimony, we disagree. During direct examination, the State questioned Witherspoon about her relationship with Mordica. Witherspoon testified that they had threatened each other over the course of several years. On cross-examination, the trial court permitted Mordica, over the State’s objection, to elicit the specific language Witherspoon used in one of those threats. Thereafter, the trial court permitted the State, on redirect examination to ask a single question about the specific language of a threat Mordica made to Witherspoon. The trial court then allowed Mordica to ask limited follow-up questions to put the threats in context, i.e., that the threats predated the incident by approximately two years and predated 10 Mordica and Witherspoon’s agreement in October of 2016 to put their differences aside. The Florida Supreme Court has held that the concept of “opening the door” allows for the admission of normally otherwise inadmissible testimony to qualify, explain, or limit testimony that has already been admitted. See Hudson v. State, 992 So. 2d 96, 110 (Fla. 2008) (“The concept of opening the door is based on considerations of fairness and the truth-seeking function of a trial and without the fuller explication, the testimony that opened the door would have been incomplete and misleading.” (internal quotation marks omitted) (quoting Lawrence v. State, 846 So. 2d 440, 452 (Fla. 2003)). When the State questioned Witherspoon on direct examination, her testimony concerning the threats was general and nonspecific. The State did not attempt to elicit testimony suggesting Mordica was responsible for the threats. Witherspoon testified that they each made threats. Mordica’s cross-examination of Witherspoon then elicited specific threats that Witherspoon made to Mordica. The State was entitled to the redirect examination to ensure such testimony was not incomplete or misleading. See Madison v. State, 260 So. 3d 464 (“This concept [of opening the door] applies ‘when one party’s evidence presents “an incomplete picture” and fairness demands the opposing party be allowed’ to complete it.” (quoting Brunson v. State, 31 So. 3d 926, 928 (Fla. 1st DCA 2010))). Further, the trial court allowed 11 Mordica to question Witherspoon regarding the additional testimony elicited by the State. We find no error. C. Impeachment with Prior Inconsistent Statements Finally, Mordica asserts the trial court erred in refusing to allow her to introduce evidence of prior inconsistent statements made by Witherspoon in her deposition about a social media video she posted subsequent to the incident regarding whether she screamed when Mordica ran over her leg. Mordica argues this issue is pivotal to her defense of leaving the scene of an accident involving serious bodily injury. Mordica contends that whether Witherspoon screamed goes to the necessary element of her knowledge—or lack thereof—regarding whether Witherspoon was injured when Mordica fled the scene. A trial court’s evidentiary rulings are reviewed under the abuse of discretion standard. Frances v. State, 970 So. 2d 806, 813 (Fla. 2011); see also Bank of New York Mellon v. Garcia, 254 So. 3d 565, 567 (Fla. 3d DCA 2018) (“Evidentiary rulings are generally reviewed under an abuse of discretion standard.”). “Discretion is abused only ‘when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’” Trease v. State, 768 So. 2d 1050, 1053 (Fla. 2000) (quoting Huff v. State, 569 So. 2d 1247, 1249 (Fla. 1990)). 12 A party may attack a testifying witness’s credibility by way of prior inconsistent statements. § 90.608, Fla. Stat. (2019). “To impeach a witness by use of a prior inconsistent statement . . . the prior statement must be both (1) inconsistent with the witness’s in-court testimony, and (2) the statement of the witness.” Wilcox v. State, 143 So. 3d 359, 383 (Fla. 2014). Prior statements are deemed inconsistent only if they directly contradict or are materially different from testimony during trial. Id. (citing State v. Smith, 573 So.2d 306, 313 (Fla.1990)). Upon a thorough review of the record, we do not find Witherspoon’s prior statements to be inconsistent. Specifically, Mordica sought to impeach Witherspoon with her testimony during a deposition concerning statements she made in a social media video posted online, but not part of the record on appeal, that she did not scream after Mordica ran over her. However, it is clear Witherspoon’s statements were referring to her not screaming after Mordica had left the scene, not immediately prior to Mordica leaving the scene. In addition, Witherspoon testified both at trial and in her deposition that she was calmly and quietly waiting to be treated by Fire Rescue personnel after Mordica had left. Accordingly, we find no abuse of discretion in the trial court’s decision to deny Mordica’s request to impeach Witherspoon with the deposition testimony about the statements Witherspoon made in the social media video. Cf. Pitts v. State, 227 So. 3d 674 (Fla 1st DCA 2017) 13 (finding that a prior statement was admissible because it directly contradicted a witness’s testimony). IV. CONCLUSION We affirm because the trial court did not deny Mordica her right to present her theory of justifiable attempted homicide to the jury. Moreover, the trial court did not abuse its discretion with respect to its evidentiary rulings regarding the threatening text messages or the alleged prior inconsistent statements. Affirmed. 14