Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT DARRELL KEITH CHAPPER, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-1278 November 30, 2022 Appeal from the County Court for Polk County; Mary Catherine Green, Judge. Howard L. Dimmig, II, Public Defender, and Rachel Paige Roebuck, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and James A. Hellickson, Assistant Attorney General, Tampa, for Appellee. LABRIT, Judge. The unique facts of this case present a novel question: can talking loudly on the phone in the vicinity of a police officer's investigation constitute obstruction without violence under section 843.02, Florida Statutes (2020). Because our case law holds that words alone, without more, are rarely obstructive conduct, we answer this question in the negative. And we reverse Darrell Keith Chapper's conviction for obstructing an officer without violence. I. This case started when Mr. Chapper's wife called 911 to resolve a domestic dispute between Mr. and Mrs. Chapper. At trial, the State's entire case rested on the testimony of the Lakeland Police Department police officer who responded to Mrs. Chapper's call. Upon arriving at the Chapper home, the officer observed injuries to Mrs. Chapper and began investigating a potential domestic violence charge by interviewing Mrs. Chapper in the kitchen. During this interview, Mr. Chapper stood outside, "speaking loudly" to his father on "speaker phone." And critical to this case, Mr. Chapper's voice was audible in the kitchen. There is very little in the record establishing the substance of Mr. Chapper's phone conversation. There is no evidence that his words were threatening or that they prevented the officer from 2 hearing Mrs. Chapper's answers to his questions.1 During the defense's case in chief, Mrs. Chapper testified that she couldn't make out the words Mr. Chapper was saying. She also explained she was upset during the officer's interview not because of Mr. Chapper's call but because of the argument she and Mr. Chapper had before the officer arrived. Nonetheless, the officer believed Mr. Chapper's phone conversation was agitating and distracting Mrs. Chapper from the interview. So, he went outside and asked Mr. Chapper "to lower [his] voice or get off the phone." Mr. Chapper responded by walking further away from the kitchen and continuing his phone conversation in the carport, twenty-five to thirty feet from the 1 The dissent concludes that Mr. Chapper used "belligerent" language and directed "taunts" to Mrs. Chapper, but the record does not support such a conclusion. Four witnesses testified at trial. Three of them—Mrs. Chapper, Mr. Chapper, and Mr. Chapper's father—did not testify to any language Mr. Chapper used. The fourth witness—the police officer—recalled only that he heard Mr. Chapper say at one point, "she's lucky that the police is here." The officer did not specify when he heard Mr. Chapper make this remark and he otherwise did not know what Mr. Chapper said. Mr. Chapper denied making this remark, the other witnesses denied hearing it, and Mr. Chapper testified that he did not use any profane language. This was the extent of the evidence on the language Mr. Chapper used, and—in our view—it does not establish belligerence or "taunting" comments. 3 kitchen door. Still not satisfied, the officer went outside again and told Mr. Chapper to "[g]et off the phone and lower [his] voice." When Mr. Chapper continued to talk loudly on the phone, the officer arrested him for resisting an officer without violence. Mr. Chapper moved for a judgment of acquittal arguing— among other things—that the State had not proven that Mr. Chapper, by his words alone, was guilty of obstruction. Mr. Chapper likened this case to D.A.W. v. State, 945 So. 2d 624 (Fla. 2d DCA 2006), where this court concluded that a juvenile's refusal to stop taunting another person who was being arrested did not amount to obstruction. See id. at 626–27. Mr. Chapper asserted that his conduct—"simply talking on the phone"—was in the same category. The trial court denied the motion. Relying on Wilkerson v. State, 556 So. 2d 453 (Fla. 1st DCA 1990), the court found the State had presented evidence that Mr. Chapper "impeded [the officer's] investigation of the wife." It also distinguished D.A.W., explaining that Mr. Chapper was not "someone idly standing by" 4 who started "yelling or screaming" at the officer but instead was a party to the ongoing investigation.2 Mr. Chapper appeals this determination and argues—as he did below—that his "verbal conduct" did not constitute obstruction. II. We review the denial of a motion for judgment of acquittal de novo. Romo v. State, 330 So. 3d 133, 134 (Fla. 2d DCA 2021). A conviction must be 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 could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Id. Section 843.02 codifies resisting an officer without violence. It provides, in pertinent part, that "[w]hoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall 2 After the defense rested, Mr. Chapper renewed his motion for judgment of acquittal, but raised no new arguments, and just "rel[ied] upon [his] previous argument." The trial court denied the renewed motion for the same reasons it denied the initial motion. 5 be guilty of a misdemeanor of the first degree . . . ." § 843.02. To support a conviction under this statute, the State must prove that "(1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty." C.E.L. v. State, 24 So. 3d 1181, 1185–86 (Fla. 2009); see Seiracki v. State, 333 So. 3d 802, 804 (Fla. 2d DCA 2022). We find it unnecessary to evaluate the first element because the second element is lacking. As this court has explained, "[w]ords alone rarely, if ever, rise to the level of an obstruction."3 D.L.S. v. State, 192 So. 3d 1273, 1274 (Fla. 2d DCA 2016); see also W.W. v. State, 993 So. 2d 1182, 1185 (Fla. 4th DCA 2008) (explaining that physical conduct typically must accompany offensive words to support a conviction under section 843.02); cf. Francis v. State, 736 So. 2d 97, 99 (Fla. 4th DCA 1999) (finding the defendant obstructed police by both lying and physically blocking their path). There are limited exceptions to this rule, such as when an officer is serving 3 This limitation is necessary "to ensure that the offense as defined [in section 843.02] does not infringe upon rights of free speech under the First Amendment." D.A.W., 945 So. 2d at 626. 6 process, legally detaining someone, or seeking assistance with an ongoing emergency. State v. Legnosky, 27 So. 3d 794, 797 (Fla. 2d DCA 2010) (quoting D.G. v. State, 661 So. 2d 75, 76 (Fla. 2d DCA 1995)). In those circumstances, a defendant's words can be sufficient to constitute obstruction. Id. Courts have also found words sufficient where the defendant was a "lookout" and warned a suspect the police were coming, or the defendant gave the police a false name at the time of arrest. Id. (citing Porter v. State, 582 So. 2d 41, 42 (Fla. 4th DCA 1991); Caines v. State, 500 So. 2d 728, 729 (Fla. 2d DCA 1987)). None of these exceptions applies here, and the facts of this case do not support carving out another. Here, Mr. Chapper was standing in a location away from the officer's questioning, speaking with someone unrelated to the investigation. The State presented no evidence of Mr. Chapper engaging in any conduct to physically obstruct it. And, while the officer testified that Mr. Chapper's call appeared to agitate Mrs. Chapper, there was no evidence indicating what Mr. Chapper said to upset her or that he intended to upset her. Relatedly, nothing in the record suggests Mr. Chapper's call would incite a reasonable person, and on this record an objective viewer cannot determine 7 how loud Mr. Chapper's voice was. Mrs. Chapper also notably testified that the phone call was not the source of her agitation. On these facts, Mr. Chapper's words—or, more accurately, their volume—are insufficient to constitute obstruction under section 843.02. This conclusion is consistent with the intent of the statute, which is meant to apply "where a person willfully interferes with the lawful activities of the police." N.H. v. State, 890 So. 2d 514, 516 (Fla. 3d DCA 2005). While Mr. Chapper's loud voice and his refusal to get off the phone may have been distracting or annoying, the record lacks competent substantial evidence to support his conviction. The trial court erred by denying Mr. Chapper's motion for judgment of acquittal. We therefore reverse his conviction and sentence for resisting an officer without violence. Reversed. CASANUEVA, J., Concurs. VILLANTI, J., Dissents with opinion. VILLANTI, Judge, Dissenting. I respectfully dissent. 8 As a preliminary matter, I believe it is right that our courts examine the issue of words as obstruction with great scrutiny. The First Amendment to the United States Constitution provides fundamental protections to our citizens regarding freedom of religion, speech, and the press, as well as the right to peaceably assemble and to petition the government for redress of grievances. These rights must be protected, and when only the spoken word forms the basis for an arrest, we must examine the circumstances closely to determine (1) whether the officer was engaged in the lawful performance of a legal duty, and (2) whether the behavior itself indeed constituted obstruction under the statute. On the other hand, nowhere does the Constitution or any amendment confer the right to interfere with, obstruct, or oppose a law enforcement officer in the performance of his or her lawful duties, and Florida and many other states have justifiably made it a crime to do so. Section 843.02 states, in pertinent part, "Whoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree . . . ." Nothing about the wording of this statute suggests 9 that words alone cannot constitute resistance or obstruction. Indeed, our supreme court has stated that the offense may be completed by words or conduct. C.E.L., 24 So. 3d at 1185–86 ("[T]o support a conviction for obstruction without violence, the State must prove: (1) the officer was engaged in the lawful execution of a legal duty;4 and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty." (emphasis added)); cf. Colten v. Kentucky, 407 U.S. 104, 108 (1972) (holding that the First Amendment does not protect expressive conduct that obstructs a police officer's investigation). Still, Florida's appellate courts have favored evidence of some physical act on the part of a defendant to support a charge of obstruction without violence. See, e.g., D.G., 661 So. 2d at 76 4 In this case, there can be no doubt that the officer was engaged in the lawful execution of a legal duty by responding to a report of a domestic violence incident and by initiating an investigation of the reported incident upon arrival at the scene. See § 741.2901(2), Fla. Stat. (2020) ("It is the intent of the Legislature that domestic violence be treated as a criminal act rather than a private matter."); see also Brandful v. State, 858 So. 2d 367, 370 (Fla. 3d DCA 2003) (investigating a complaint); V.L. v. State, 790 So. 2d 1140, 1142 (Fla. 5th DCA 2001) (investigating a crime); Francis v. State, 736 So. 2d 97, 99 n.1 (Fla. 4th DCA 1999) (responding to a 911 call). 10 ("[O]bstructive conduct rather than offensive words are normally required to support a conviction under this statute." (emphasis added)). But we have also recognized several exceptions to this general rule. See id. (observing that words have been held to constitute obstruction where the officer in question was serving process; legally detaining a person; or asking for assistance); Legnosky, 27 So. 3d at 798 (lying about another person's whereabouts where the officer was attempting to serve that person with a Marchman Act order5); Caines, 500 So. 2d at 729 (giving an officer a false name); Bass v. State, 304 So. 3d 786, 792 (Fla. 1st DCA 2018) (providing an officer with false identification); Porter, 582 So. 2d at 42 (acting as lookout and verbally warning drug dealer of police presence). This suggests that the determination of whether words alone may constitute obstruction is situational. Moreover, the focus should not be on the content of the speech, but on its effect, i.e., whether the defendant's verbal "act" was intended to or did in fact hinder the officer in the performance of his legal duties. Legnosky, 27 So. 3d at 797; N.H. v. State, 890 So. 2d 514, 517 (Fla. 5 A Marchman Act order allows an officer to take a person into custody for involuntary drug or alcohol assessment. 11 3d DCA 2005) ("[T]he totality of N.H.'s conduct toward the police in this case—refusing to identify himself, refusing to sit and thus comport himself so that the officers could investigate and finally physically threatening them, all as found by the trial court—is sufficient to support the [trial court's finding that N.H. had resisted without violence]."). "This court reviews the denial of [a] motion for judgment of acquittal de novo while viewing the facts in the light most favorable to the State." Smith v. State, 123 So. 3d 656, 657 (Fla. 2d DCA 2013). The principles at issue here are deeply entrenched in Florida law. In moving for a judgment of acquittal, a defendant "admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence." Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974). It follows that a motion for judgment of acquittal should not be granted "unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law." Id. Stated another way, a motion for judgment of acquittal should be denied "[i]f, after viewing the evidence in the light most favorable to the State, a rational trier of 12 fact could find the existence of the elements of the crime beyond a reasonable doubt." Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). Where there is room for a difference of opinion between reasonable [persons] as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury . . . . Lynch, 293 So. 2d at 45. The incident that resulted in the charged offense occurred during a criminal investigation in response to a 911 call reporting domestic violence at Chapper's residence. Upon the officer's arrival, the situation appeared volatile, and when the officer attempted to initiate an interview with Chapper's wife, Chapper began his campaign of verbal interference. The officer asked Chapper to move away and to lower his voice at least twice. The officer had no duty to attempt to conduct the interview somewhere else, nor was he required to mediate for the warring couple; his sole remit as a law enforcement officer was to investigate the complaint. And given the fact that he observed visible injuries on the person of Mrs. Chapper, he already had a reasonable suspicion that a crime had been committed. 13 But while the officer attempted to conduct the interview, Chapper engaged in a telephone conversation with a third party in a very loud voice―shouting and using belligerent language which, in the perception of the officer who was there―could only have been intended to disrupt the officer's attempt to interview Mrs. Chapper by distracting the officer in the performance of his duty and by causing Mrs. Chapper to emotionally react to Chapper's shouts and taunts. Moreover, Chapper was not just a bystander or a participant in a political protest, he was a suspect in a domestic violence case. In short, a reasonable finder of fact could conclude that Chapper's behavior was intended to, and did, interfere with the investigation. Cf. L.A.T. v. State, 650 So. 2d 214, 219 (Fla. 3d DCA 1995) (Cope, J., specially concurring) ("L.A.T. could be charged under section 843.02 if he had positioned himself in proximity to the officers and then screamed so as to interfere with the ability of the officers to communicate with each other and with witnesses. Clearly, L.A.T. can be required to move away from where the officers are working, failing which L.A.T. would be chargeable under the obstruction statute.") (citation omitted). 14 Here the trial court properly denied Chapper's motion for judgment of acquittal because sufficient evidence was presented from which "a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt." Pagan, 830 So. 2d at 803. The officer's testimony supported the reasonable conclusion that Chapper's acts and words were intended to disrupt the officer's interview with the presumed victim and/or to cause the victim to emotionally react to Chapper's antics. Either way, the result was the same: the officer was hindered in the performance of his duty. Mrs. Chapper's testimony was at odds with that of the officer, but we may not take this into account, for it is well established that "[t]he existence of contradictory, conflicting testimony or evidence 'does not warrant a judgment of acquittal because the weight of the evidence and the witnesses' credibility are questions solely for the jury.' " State v. Shearod, 992 So. 2d 900, 903 (Fla. 2d DCA 2008) (quoting Fitzpatrick v. State, 900 So. 2d 495, 508 (Fla. 2005)). For the above reasons, in my view, the trial court did not err by denying Chapper's motion for judgment of acquittal. I would affirm. 15 Opinion subject to revision prior to official publication. 16