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 KENNETH JAMES KEGLER, ) ) Appellant, ) ) v. ) Case No. 2D19-3479 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed January 13, 2021. Appeal from the Circuit Court for Hillsborough County; Nick Nazaretian, Judge. Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Cynthia Richards, Assistant Attorney General, Tampa, for Appellee. SILBERMAN, Judge. Kenneth James Kegler appeals an order revoking his community control and the resulting sentences in two circuit court cases, one for felony petit theft and one for grand theft. Kegler raises two issues on appeal, and one requires reversal. Because the State failed to prove Kegler willfully and substantially violated his community control by being away from his approved residence without the permission of his supervising officer, we reverse the revocation order and sentences and remand for reinstatement of community control. After Kegler entered a guilty plea in the two circuit court cases on May 20, 2019, the trial court imposed concurrent sentences of twenty-four months of community control followed by twenty-four months of probation. Officer Graham filed an affidavit of violation of community control alleging that Kegler violated condition 16 by failing to remain confined to his approved residence. The affidavit asserted that Kegler was not home when a home visit was attempted at 4:50 p.m. on May 20, 2019, and that Kegler did not have the prior approval of his officer to be away from his residence. The affidavit was dismissed, and Kegler continued on community control. On June 27, 2019, Officer Walthour filed an affidavit alleging the violation of community control that is at issue here. The affidavit alleged that Kegler violated condition 16 by failing to remain confined to his approved residence in that Kegler was away from his residence at 5:37 a.m. on June 21, 2019, without prior approval when Officer Walthour attempted a home visit. At the violation hearing, Officer Walthour testified that he supervised Kegler and that condition 16 of his community control required that he remain confined to his residence unless his schedule said otherwise. Officer Walthour testified that the prior officer, Officer Graham, had instructed Kegler on the conditions of his supervision. Kegler's schedule for June 21, 2019, reflected that he was to be home all day. Officer Walthour went to Kegler's residence at 5:37 a.m. on June 21, 2019. The officer rang the doorbell and knocked "[a]t least three times." The officer -2- signaled his partner to call Kegler's cell phone as a courtesy, and Kegler did not answer his cell phone. His partner made two phone calls. When asked if there were any cars at the residence, Officer Walthour stated that it was "an apartment complex so there were multiple cars out there." Officer Walthour was unable to make contact with Kegler at that time. Kegler's wife, Jessica Kegler, testified for the defense. Mrs. Kegler works for Lyft, and on June 21, 2019, she was in her car at 5:25 a.m. getting ready to leave for an airport pickup. She sat in her car for five or six minutes before she left. At 5:25 her husband was standing in front of her car. When she pulled out of the complex five or six minutes later, she saw him turn around and walk back inside. It was still dark outside when she left. Her husband is on medication for mental health issues, and when he takes the medicine she is unable to wake him the next day. On days that he does not take his medications, he gets up with her. He did not take his medication the prior night, but she described him as groggy that morning. Her husband had been up for the last two days because he feared missing a visit from his officer. They had installed a doorbell because it was hard to hear in the back of the townhouse. There are three separate rooms before getting to the bedroom in the very back. On cross-examination, Mrs. Kegler said she could see the door of her residence from her car, that she was in her car at 5:25, and that she left "[a]bout six minutes later." Her husband always walks her out because of snakes. At 5:31 when she was pulling out, her husband was turning back and going inside. -3- Kegler testified that he was at home on June 21, 2019, at 5:37 a.m. He walked his wife out to her car at 5:25 a.m. It is part of his routine to walk her outside because it is dark and there are snakes. After she pulled away, Kegler went back inside, locked the door, and set the alarm. He went to his bedroom in the back of the residence, laid down, watched television, and fell asleep. He had not taken his medications that make him groggy "because [he] had been violated one time for not answering the door so [he] was trying to stay awake" in case his supervising officer came to his residence. The trial court found Kegler in violation and noted that Kegler had "tailored his story to show he was up." The trial judge stated, "[T]he man said I believe truthfully he went and watched television so it was never this sleepy business." The trial court determined that Keglers' own testimony showed that Kegler "wasn't passed out or sleeping." The trial court mentioned an earlier violation for not being at home that the court had dismissed and said the court had given Kegler "a freebie." The court had "warned [Kegler] not to come back" and "to open the door next time or [he was] going to go to prison." The court also stated that if Kegler's phone was on and he was up, he would have heard the phone call at 5:37. Kegler said he would have answered the phone if he had heard it and "would have come to the door if [he] had heard the bell." The court stated that it did not believe Kegler's story and that "[his] wife's testimony as distinct as it is sunk [his] ship, okay, because she puts [him] up at that time." The trial court revoked Kegler's community control and imposed concurrent sentences of sixty months in prison. -4- Kegler contends on appeal that the State failed to prove a willful and substantial violation of community control based on Kegler's failure to answer his door when his supervising officer visited at 5:37 a.m. [Corey] Brown v. State, 280 So. 3d 1117 (Fla. 2d DCA 2019), and other cases from this district support Kegler's contention that the State failed to meet its burden to prove that he committed a willful and substantial violation of condition 16 for being away from his approved residence without the permission of his supervising officer. The State has the burden to prove a violation of community control by the greater weight of the evidence. Brown, 280 So. 3d at 1118; Bravo v. State, 268 So. 3d 193, 196 (Fla. 2d DCA 2018). "Evidence that gives rise to multiple reasonable inferences, only one of which establishes a violation, does not meet this standard." Brown, 280 So. 3d at 1118. Upon appellate review, we must first determine whether competent, substantial evidence supports the trial court's finding of a willful and substantial violation. Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013). When competent, substantial evidence supports a finding of a willful and substantial violation, we then review the decision to revoke supervision for an abuse of discretion. Id. at 623. When the inference that a person under supervision "was not home is just one of several reasonable inferences that arise from the evidence of his failure to answer the door, the greater weight of the evidence [does] not establish a willful and substantial violation" for being away from an approved residence. Brown, 280 So. 3d at 1120. In Brown, the community control officer testified that she went to Brown's approved residence when he should have been home at 6:50 a.m. Id. at 1118. She first called his cell phone, but he did not answer. She then knocked on his door "several -5- times very hard," yet still no one answered. Id. She left a note in his door jamb advising Brown to call her immediately, but the officer never received a call back from Brown. Brown testified that he was at home but asleep and did not hear his phone ring or a knock on the door. Id. He also did not find the note from his officer when he left for work. Brown usually woke up between 7:30 and 7:45 to get ready for work. His bedroom at the back of his residence was "about seventy-five feet from the front door." Id. Rejecting Brown's explanation for why he did not answer the door, the trial court found Brown in willful and substantial violation of his community control. Id. Relying on [Tamika] Brown v. State, 813 So. 2d 202 (Fla. 2d DCA 2002), this court determined that the State's evidence was legally insufficient when it presented testimony "that no one answered the door in response to a knock." [Corey] Brown, 280 So. 3d at 1119. This court explained as follows: Even if the trial court rejected Brown's testimony that he was asleep, the record contains no direct evidence that Brown was not home. Instead, the only direct evidence was that no one answered Brown's door when Shaw knocked. From this evidence, the court could certainly infer that Brown was not home. But it could just have reasonably inferred that Brown was asleep, in the shower, or otherwise occupied. The State did not present any evidence to show how long Shaw stayed outside Brown's door or how long she continued to knock. Id. Further, there was no evidence that the knocking was so loud that it woke neighbors. Id. This court concluded that "the inference that Brown was absent from his home was simply one of several reasonable inferences that could have been made from the State's evidence, rendering the State's evidence legally insufficient to prove a -6- violation of community control." Id. at 1120. Observing that a supervising officer often visits "a residence early in the morning or late at night," this court gave the following warning: [T]he approach of simply knocking on the door and then declaring a violation when no one answers provides strong potential defenses to the person being supervised. If the supervising officer truly believes that a person under supervision is not home, it would behoove that officer to acquire evidence that corroborates the alleged absence from the residence. Id. In [Tamika] Brown, this court reversed an order revoking community control when the State established only that at 2 a.m. "no one answered the door." 813 So. 2d at 204. Brown's supervising officer had received a report that Brown had been going to someone's house "at all hours of the night" to harass the residents. Id. at 203. Brown's officer and a deputy went to her residence at 2 a.m., and the officer knocked on the door. When no one answered, the officer knocked with her flashlight, but still no one answered. Although no lights were on, they could hear a television inside. After waiting three or four minutes, the officer and deputy left. Id. Brown and her family testified that they were at home and sleeping at 2 a.m. on the date in question. Id. A family member testified that the noise of the television and air conditioner probably drowned out the noise of the knocking. This court concluded that "the State produced no evidence to prove that Brown was not at home for the officer's 2 a.m. visit." Id. at 204. "Establishing that no one answered the door at that unreasonable hour of the morning was insufficient to prove" that Brown violated her community control by being away from her residence. Id. -7- In Edwards v. State, 296 So. 3d 986, 987 (Fla. 2d DCA 2020), this court again determined that the State failed to prove that a willful and substantial violation occurred when an officer testified that she did two curfew checks and no one answered either time. The officer conducted one check at 5:00 a.m. and a second check five days later around 5:30 a.m. Both times the front door was "slightly ajar" when the officer arrived, and she knocked and called into the house. Id. The first time the officer heard a television but saw no one. The second time a person she did not recognize was sleeping on the couch, but he did not move when she knocked or called out. Edwards testified that he had been sleeping at home when the officer made the two curfew checks. Id. Other family members testified that they had also been at home but did not hear anyone knocking or calling out. This court determined that the State's evidence was legally insufficient. Id. at 989. Notably, the officer's testimony showed "that she never successfully roused anyone by knocking and calling into the house," even though a person was sleeping on a couch only a few feet away on the officer's second curfew check. Id. Here, the State failed to present evidence of how long the officer stayed outside the door, how long he knocked, or how hard he knocked. In addition, the officer did not state that he made any other efforts to attract attention, such as going to a different part of the residence to knock on a window. See [Corey] Brown, 280 So. 3d at 1119-20 (distinguishing Hurst v. State, 941 So. 2d 1252 (Fla. 1st DCA 2006), where the officer pounded on the wall of the trailer by Hurst's bedroom and knocked so loudly that she woke the neighbors). There were multiple reasonable inferences that could be taken from the State's evidence, including that Kegler was not home or that Kegler was -8- awake but did not hear the officer at the door when he had the television on in the back bedroom. The State's evidence was legally insufficient to prove by the greater weight of the evidence a willful violation of community control, even though the trial court had found Kegler to not be a credible witness in some respects, such as "this sleepy business." See [Corey] Brown, 280 So. 3d at 1119 ("Even if the trial court rejected Brown's testimony that he was asleep, the record contains no direct evidence that Brown was not home."). In addition, the trial court did not state that it found Mrs. Kegler to not be a credible witness. She observed Kegler present and walking into the residence at 5:31, six minutes before the officer arrived. It is equally reasonable to infer that Kegler then turned around and walked away after his wife left as it is to infer that he went inside to the back of their residence and did not hear the officer when he was in bed and watching television. The trial court even stated at one point that it believed that Kegler truthfully stated that "he went and watched television," which is inconsistent with the State's position that Kegler was not at the residence. The State admits that the facts of [Corey] Brown are very similar to the present case but contends that the case is distinguishable because in Brown there was no testimony conflicting with the defendant's explanation that he had been asleep and not heard the officer. The State argues that "Kegler admitted to being awake and receiving the phone call at 5:37 in the morning and chose not to answer the door or phone." Kegler never testified that he chose not to answer the door or phone. Rather, he testified that no one came to the door at 5:37 on that date. He testified that -9- his phone was turned on, he checked it, and he saw that he had missed a call. He stated, "I would have answered it if I had heard it." He also stated that he would have answered the door if he "had heard the bell." Based on these circumstances, "the inference that [Kegler] was absent from his home was simply one of several reasonable inferences that could have been made from the State's evidence, rendering the State's evidence legally insufficient to prove a violation of community control." [Corey] Brown, 280 So. 3d at 1120. We conclude that the State failed to submit competent, substantial evidence that Kegler was not at home when the officer rang the doorbell and knocked at 5:37 a.m. Therefore, we reverse the order revoking community control and the resulting sentences and remand for the trial court to reinstate community control. Reversed and remanded. SLEET, J., Concurs. ATKINSON, J., Dissents with opinion. - 10 - ATKINSON, J., Dissenting. Because competent, substantial evidence supported the trial court's determination that Kegler violated community control by being absent from his residence, I must respectfully dissent. The trial court was not relying merely on testimony that Kegler failed to respond to the officer's phone calls and knocks on the door. The trial court also relied on the defense's own theory that Kegler was awake but unaware of the officer, finding Kegler's testimony not only incredible and pretextual but also supportive of the State's case. The defense theory included that Kegler was awake and standing outside his house six minutes before the probation officer arrived. Given Kegler's discredited insistence that he was inside and awake at the time of the officer's visit, a plausible explanation for the officer's credited testimony that he rang his doorbell and repeatedly knocked on his door before phoning him without response was that Kegler was no longer (or had never actually been) at the house that morning. In other cases, this court has reversed supervision revocations under different facts on the basis that the state could not preclude the defendant's theory that he or she was sleeping and therefore unable to hear the officer's knocking or phone calls. See Edwards v. State, 296 So. 3d 986, 988–89 (Fla. 2d DCA 2020); Brown v. State, 280 So. 3d 1117, 1119 (Fla. 2d DCA 2019); Brown v. State, 813 So. 2d 202, 204 (Fla. 2d DCA 2002) ("Establishing that no one answered the door at th[e] unreasonable hour of [2:00 in] the morning was insufficient to prove" Brown was "away from her approved residence . . . ."). By contrast, in this case the defendant eliminated that possibility himself by contending he was awake when the officer arrived at 5:37 a.m. He even testified - 11 - that his phone was on and that he was successfully "trying to stay awake" in case an officer checked on him that day. His theory was not that he was asleep, but that he was conscious but unable to detect the officer's efforts to contact him by knocking, phoning, and ringing the doorbell. The trial court did not "believe a syllable" of Kegler's explanation. In absence of a sleeping defense, and having rejected the theory of Kegler's inability to detect the probation officer's presence, the only other logical explanation to account for Kegler's failure to answer the phone or come to the door was the State's theory that he was not home. Cf. Brown, 280 So. 3d at 1119 ("[I]t could just as easily be inferred that Brown was asleep, in the shower, or otherwise occupied."). The majority notes that the trial court did not expressly discredit Mrs. Kegler's testimony that she observed Kegler walk into the residence a few minutes before the officer arrived. Yet, the court could have found her testimony credible and still found incredible Mr. Kegler's testimony that he was still awake but did not hear the officer moments after Mrs. Kegler drove away. See Romero v. State, 300 So. 3d 794, 796 (Fla. 5th DCA 2020) ("An order revoking probation is reviewed for abuse of discretion. . . . And in evaluating whether a trial court's determination is supported by sufficient evidence, . . . the trial court is in the best position to 'weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.' " (first citing Woodson v. State, 864 So. 2d 512, 514 (Fla. 5th DCA 2004); then quoting Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976))). This court is not obligated to assume that the trial court credited Mrs. Kegler's testimony. But even assuming her story to be true, Kegler's theory that he walked back inside and remained in the home - 12 - after she departed would still be pitted against the possibility that he left the residence before the officer arrived. It was within the province of the trial court to assess the credibility of Kegler's explanation that he was at home, awake, and essentially anticipating the possible arrival of an officer conducting a curfew check. Against the backdrop of Kegler's theory of defense, testimony that the officer rang his doorbell, knocked on his door three times, and had another officer twice call his phone constituted competent, substantial evidence from which the trial court could conclude that a preponderance of evidence supported that Kegler was not there. See Savage v. State, 120 So. 3d 619, 622 (Fla. 2d DCA 2013) ("Our aseptic record cannot replicate what the trial court observed. Thus, we assess the record evidence from which the trial court reached its conclusion for its sufficiency, not its weight."). I would therefore affirm the judgment of the trial court. - 13 -