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Ellis v. State

Florida Court of Appeals, First District

May 3, 2018

Barry Edward Ellis, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Escambia County. Edward P. Nickinson, III, Judge.

          Andy Thomas, Public Defender, Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.

          Jay, J.

         In this direct criminal appeal, Ellis claims that the trial court erred in denying his motion for judgment of acquittal on the charge of aggravated fleeing or attempting to elude "a law enforcement officer in an authorized law enforcement vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated" pursuant to section 316.1935(3), Florida Statutes (2014). Because the state presented legally sufficient evidence that the agency insignia and other jurisdictional markings were prominently displayed on the law enforcement vehicle in this case, we affirm.

         During the midnight shift, Officer Landy of the Pensacola Police Department was flagged down by a convenience store employee who informed Landy that a man had stolen cigarettes and left in a white car headed west on Bayou Street. Landy headed in that direction and, within seconds, came upon a white car stopped at an intersection with no other traffic on the road. Landy initiated a traffic stop by activating the lights on her patrol vehicle.

         At trial, Landy described her patrol vehicle as "a Chevy Tahoe, marked police vehicle, all the decals, lights and everything." (Emphasis added). Landy confirmed that the vehicle had the words "Pensacola Police Department" on it and that it was "clearly" a police vehicle. Officer Spikes arrived at the scene after Landy, and the video from Spikes' body-cam was also admitted into evidence. The video showed "PENSACOLAPOLICE.COM" on the back of Landy's vehicle and "POLICE" along the upper edge of the rear window.

         Landy approached the white car and asked the driver, Ellis, for his license, which he provided. However, when Landy asked Ellis to roll down the back-passenger window so that she could speak to the person in the back seat, Ellis snatched his license from Landy's hand and sped away, injuring Landy in the process. Both officers pursued Ellis' vehicle with their police lights and sirens activated. The brief, high-speed chase ended when Ellis turned his vehicle into a dead-end street and abandoned it. Later in the morning, Ellis was taken into custody.

         After the state rested, defense counsel moved for a judgment of acquittal on the ground that Officer Landy's testimony was not enough to show that agency insignia were prominently displayed on her vehicle. The trial court denied the motion. Ellis then took the stand. Notably, Ellis testified that before he was approached by Officer Landy, he "was sitting still and the police car . . . pulled up behind me." (Emphasis added). After the defense rested, defense counsel renewed the motion for judgment of acquittal, which again was denied by the trial court. The jury returned a verdict finding Ellis guilty as charged.

         On appeal, Ellis claims that the trial court erred in denying his motion for judgment of acquittal because the state failed to establish that agency insignia were prominently displayed on Officer Landy's patrol vehicle, citing Slack v. State, 30 So.3d 684 (Fla. 1st DCA 2010). In Slack, this court held that a deputy's testimony that he was driving a "marked patrol car" with "lights on top" did not establish that there were "agency insignia and other jurisdictional markings prominently displayed on the vehicle" so as to sustain a conviction for fleeing or attempting to elude a law enforcement officer. Id. at 687. In noting that not all markings on law enforcement vehicles constituted agency insignia, the court cited the Third District's decision in Gorsuch v. State, 797 So.2d 649, 651 (Fla. 3d DCA 2001), which held that two officers' unmarked vehicles and a third officer's vehicle marked with a fifteen-inch City of Miami seal did not have the agency insignia required by section 316.1935(3). Id.

         The facts of this case are distinguishable from those in Slack. Even though Officer Landy stated that she was driving a "marked police vehicle, " she supplemented this by testifying that the vehicle had the words "Pensacola Police Department" on it, that it had "all the decals" and "lights[, ]" and that it was "clearly a police vehicle[.]" This testimony was confirmed by the video from Officer Spikes' body-cam showing "PENSACOLAPOLICE.COM" and "POLICE" conspicuously exhibited on the back of Landy's Tahoe. Viewed in a light most favorable to the state, this evidence established that agency insignia and other jurisdictional markings were prominently displayed on Officer Landy's vehicle. Accordingly, the trial court properly denied Ellis' motion for judgment of acquittal. See Dupree v. State, 705 So.2d 90, 93 (Fla. 4th DCA 1998) (en banc) ("Generally, on a motion for judgment of acquittal, the court should not grant the motion unless, viewed in a light most favorable to the state, the evidence does not establish the prima facie case of guilt.").

         To the extent that the dissent equates "agency insignia"- exclusively-with an agency badge or seal, there is no authority requiring such a narrow interpretation of the statutory language. Notably, the word "insignia" is not defined by the statute, "which means we give the term its plain and ordinary meaning, resorting to dictionaries where necessary and helpful." S.C. v. State, 224 So.3d 249, 250 (Fla. 3d DCA 2017). For accuracy, "a comparative weighing of dictionaries is often necessary." Antonin Scalia & Bryan A. Garner, A Note on the Use of Dictionaries, 16 Green Bag 2d 419, 422 (2013).

          The Oxford English Dictionary (Second Edition) defines "insignia" as (1) "badges or distinguishing marks of office or honor"; or (2) "marks or tokens indicative of anything." The Cambridge Dictionary defines "insignia" as "an object or mark which shows that a person belongs to a particular organization or has a particular rank." Webster's New World College Dictionary (Fifth Edition) defines insignia as "badges, emblems, or other distinguishing marks, as of rank, membership, etc." And, the MacMillan Dictionary defines insignia as "a mark on an object that shows who made it, who it belongs to, or what organization it is connected with."

         Under any of the above definitions, agency insignia were prominently displayed on Officer Landy's Tahoe insofar as the vehicle was marked to clearly identify it as belonging to the Pensacola Police Department. Specifically, the words "Pensacola Police Department" and "PENSACOLAPOLICE.COM" would qualify as agency insignia. See Mercury Cab Owners' Ass'n v. Jones, 79 So.2d 782, 783 (Fla. 1955) ("Each member cab is painted in distinctive colors (red and yellow) and bears the insignia 'Mercury Cab.'"); Hudson v. State, No. 12-03-00035-CR, 2004 WL 1852965, *2 (Tex. App. Aug. 18, 2004) ("The question here is whether the letters D.P.S. on a hat are an insignia identifying the wearer as a peace officer. We conclude that they are."); Fallin v. State, 93 S.W.3d 394, 396 (Tex. App. 2002) ("We find the phrase 'an insignia of a law enforcement agency, ' as used in section 37.12, unambiguously refers to any distinguishing mark that identifies the item as one originating from an official law enforcement agency.") (emphasis added); see also Holiday Inns, Inc. v. Holiday Inn, 645 F.2d 239, 241 (4th Cir. 1981) ("It has also distributed towels, parking lot identification stickers and notices to guests bearing the insignia 'HOLIDAY INN TM.'"); Fabri-Tek Inc. v. Nat'l Labor Relations Bd., 352 F.2d 577, 580 (8th Cir. 1965) ("In addition to the large and varivue buttons described heretofore, there were exhibited on company premises during working time other union insignia, including a woman's blouse that was stenciled on the back with the words 'VOTE I.B.E.W.' in very black 2 1/2-inch letters, and earrings fashioned from customary union buttons."); Hartley v. Suburban Radiologic Consultants, Ltd., 295 F.R.D. 357, 364 (D. Minn. 2013) ("Apex prints the letters on preprinted letterhead bearing the insignia 'CT Inc. Services.'"); Amerisource Corp. v. RxUSA Int'l, Inc., No. 02-CV-2514 (JMA), 2010 WL 2730748, at *2 (E.D.N.Y. July 6, 2010) ("The Drucker fax header versions also bear an 'rxusal' insignia in the upper left corner, which according to Amerisource's computer forensics expert, indicates that they were printed from a computer on the RxUSA network."); Allmond v. Bank of Am., No. 3:07-cv-186-J-33JRK, 2008 WL 205320, at *4 n.3 (M.D. Fla. Jan. 23, 2008) ("In the upper, left-hand corner, the document bears the insignia 'pps.' . . . . This Court assumes that this is a mark used by Early Warning when it did business as Primary Payment Systems."); Wood v. United States, 125 F.Supp. 42, 46 (S.D.N.Y. 1954) ("At 0633 it returned with a capsized lifeboat which was hoisted to the side of the ship and upon inspection was found to bear the insignia 'LT 170'-the designation assigned to The Bucentaur by the British Registry Office."); People v. Anderson, 221 Cal.Rptr. 516, 519 (Cal.Ct.App. 1990) ("Valles and Anderson were dressed in blue jumpsuits bearing the insignia 'A.T.F.' on the back and wore what appeared to be police badges on their chests.").

         Finally, even assuming that the phrase "agency insignia" only means agency badges or seals-an assumption contrary to the above definitions and caselaw-there was nothing to preclude the state from proving the existence of such insignia by circumstantial evidence. See State v. Castillo, 877 So.2d 690, 693 (Fla. 2004) (observing that it has long been established that circumstantial evidence is competent to establish the elements of a crime); State v. Surin, 920 So.2d 1162, 1164 (Fla. 3d DCA 2006) ("[T]he Florida Supreme Court has long accepted that the State may prove an essential element of an offense through circumstantial evidence . . ., and one Florida court has affirmed a conviction where the age of the victim-an essential element of the crime of child abuse-was proven by circumstantial evidence alone."). Although there was no photographic evidence of an agency seal or badge on Officer Landy's patrol vehicle, Landy's testimony, the body-cam video, and Ellis' testimony constituted circumstantial evidence from which a jury could have concluded-beyond a reasonable doubt-that Landy's vehicle was marked with the type of agency insignia commonly found on law enforcement vehicles. Accordingly, we affirm.

         Affirmed.

          Roberts, J., concurs; Makar, J., ...


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