FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, Nancy Maloney,
Charles Fletcher, of Law Office of W. Charles Fletcher, P.A.,
Jacksonville, for Appellant.
Moody, Attorney General, Tallahassee, and Deborah A. Chance,
Assistant Attorney General, Daytona Beach, for Appellee.
affirm the order finding Appellant, Edward Reynolds, in
violation of his probation for committing the new law
violations of domestic battery based upon our supreme
court's decision in Russell v. State, 982 So.2d
642, 646-48 (Fla. 2008), and for resisting an officer without
violence, e.g., N.H. v. State, 890 So.2d
514, 516-17 (Fla. 3d DCA 2005) (juvenile's conduct toward
police officers during investigatory stop, including refusing
to identify himself, refusing to sit and thus comport himself
so that officers could investigate, and physically
threatening officers, was sufficient to support finding that
juvenile committed offense of resisting officer without
we write to observe three points in response to the dissent.
First, some of the arguments relied on by the dissent were
either not preserved or were not raised on appeal. For
instance, Appellant did not argue below that the
officer's observation of the victim's wound was
insufficient corroboration because of the temporal break
between the battery and observation by law enforcement.
Likewise, Appellant did not argue below or in his initial
brief that the State was required to present non-hearsay
evidence to directly establish the identity of the batterer.
Rather, Appellant argued below that there was no direct
evidence that a battery occurred at all, implying that the
victim might have received the laceration from some conduct
other than a battery.
while the officers in this case did not arrive at the scene
in temporal proximity to the battery, in our view, this goes
to the weight of the evidence, not to its sufficiency to
corroborate the hearsay evidence presented at a violation of
probation hearing. To that end, we observe that the trial
court made specific findings regarding credibility, and
thoroughly explained why, given the totality of the evidence,
it believed Appellant committed the battery. While the
dissent seems to disagree with the trial court's factual
and credibility findings, and we acknowledge that Appellant
argued many reasons why the trial court should disbelieve the
victim, we will not reweigh the evidence from the appellate
in our view, the dissent casts the evidence in a light most
favorable to the Appellant. The evidence and permissible
inferences in our record demonstrate that officers arrived at
Appellant's residence, parked on the street, and entered
the property through an open gate. The victim told them that
she had not called 911 that day, but eventually admitted that
Appellant previously struck her, telling officers on one
occasion that the battery was a week earlier and at another
time indicating that it was two weeks earlier.
victim showed the officers a laceration along her gumline,
which did not appear fresh. She also showed them pictures of
the cut that she had taken right after the battery occurred.
The officer testified that he observed the victim's
demeanor change when she admitted Appellant hit her, and that
she was almost crying.
then returned to the residence while officers were still on
the scene. Appellant admitted that he saw the police car
parked along the road near his property. Appellant then drove
into his driveway and stopped to allow his girlfriend to get
out and lock the gate while the officers were still on the
property. The arresting officer testified that
Appellant's headlights were directly illuminating him and
his partner when Appellant pulled into the driveway and
stopped. Appellant then continued down the driveway, rolled
down his window, and started speaking to the officers-all the
while driving his truck "uncomfortably close" to
put the truck in park, but when the officers instructed him
to get out of his vehicle, he initially refused, telling the
officers, "I'm not going to step over there."
Rather than promptly comply with the officers'
instructions, Appellant continued asking why the officers
were there, and ordered them to get off his property.
Appellant finally stepped out of his vehicle, the officers
placed Appellant under arrest. After adjusting
Appellant's handcuffs for his comfort, the officers
walked Appellant down the driveway and toward the locked
gate. Appellant said "this is my house. If you start
with me, I'm going to start something." On the way
there, Appellant became increasingly belligerent and
confrontational, and threatened to "kick [the
Appellant's girlfriend informed the officers that they
could not leave without a key to unlock the gate. However,
the officers had to "ask several questions" before
they located the key in Appellant's left side pocket and
were able to unlock the gate in order to exit the property.
and notably, after Appellant was in the patrol car, he began
yelling, screaming, and kicking the back of the front
conclusion of the hearing, and after receiving live
testimony, a partial recording of the actual arrest, and the
recorded interviews with the victim and her daughter, the
trial court found, in part, that:
[T]he totality of the circumstances, and I include . . . the
kicking and the screaming and all of that, and the manner in
which all the threatening activity took place beforehand.
. . . .
[Appellant's] actions were aggressive and
confrontational. And that, . . . combined with not responding
immediately to law enforcement's commands makes all four
points of what the ...