Brate v. State

469 So. 2d 790, 10 Fla. L. Weekly 832
CourtDistrict Court of Appeal of Florida
DecidedMarch 29, 1985
Docket84-233
StatusPublished
Cited by7 cases

This text of 469 So. 2d 790 (Brate v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brate v. State, 469 So. 2d 790, 10 Fla. L. Weekly 832 (Fla. Ct. App. 1985).

Opinion

469 So.2d 790 (1985)

James Elmer BRATE, Jr., Appellant,
v.
STATE of Florida, Appellee.

No. 84-233.

District Court of Appeal of Florida, Second District.

March 29, 1985.
Rehearing Denied May 20, 1985.

David A. Maney and Lee S. Damsker of Maney & Damsker, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Frank Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee.

*791 BOARDMAN, EDWARD F. (Ret.), Judge.

The state charged appellant James Elmer Brate, Jr., with second degree murder of Paul Kachanovich, an individual who died of abdominal injuries shortly after being involved in an automobile collision and then being stomped in the abdomen by appellant. Following a jury trial, appellant was convicted of manslaughter; he challenges that conviction in this appeal, contending that the state's evidence was legally insufficient to establish his criminal agency as the cause of Kachanovich's death. We disagree and thus affirm.

The circumstances surrounding Kachanovich's death can best be described as bizarre. Kachanovich, posing as a hired assassin, accompanied David Benson to abduct Benson's ex-wife, Jackie, from the mobile home which she rented from appellant in Ruskin. Appellant, who was romantically involved with Jackie, learned of the abduction while it was in progress; he and his foster son, Charles Bloodgood, raced to the scene and then pursued the fleeing Benson vehicle as it sped wildly through the streets of Ruskin.

At one point in the pursuit, appellant attempted to block Benson's exit from a shopping center parking lot by positioning his pick-up truck in front of the oncoming vehicle. Benson approached the exit at a speed of approximately twenty to thirty miles per hour, swerved to avoid a head-on collision with appellant's truck, and ultimately struck the front of the truck with his vehicle's left rear door. Continuing to drive like a "mad man," Benson then bounded over a curb, drove through a drainage ditch, and finally raced back onto the highway. According to Jackie, who was a backseat passenger in the Benson vehicle, the force of the collision with appellant's truck threw her "pretty hard" to the left and was sufficient to break the back window. Jackie "thought" that Kachanovich, the right front seat passenger, was thrown against the dash during the collision, but she "wasn't sure" and conceded that she was "just speculating."[1] Photographic evidence subsequently established that the right front dashboard of the Benson vehicle had been indented and bent up slightly during the episode. The exterior of the car was only moderately damaged, however.

Benson's vehicle continued down the highway at breakneck speed, but appellant's truck was unable to keep pace with the fleeing vehicle due to body damage sustained in the collision. Benson's car later swerved off the highway at an overpass near Interstate 75 and slid down the steep embankment, coming to a "very abrupt stop" at the bottom of the embankment and ending up mired in three feet of water, with the front end of the vehicle pointing back up the embankment. The grass near the vehicle caught fire. Benson dragged Jackie from the wreckage and then secured a ride for the twosome with a passing motorist. Before Jackie left the scene, however, she observed Kachanovich sitting passively in the wrecked vehicle, making no attempt to escape the approaching grass fire. According to Jackie, he had quietly endured the entire maniacal ride, except for a brief moment after the collision when he grabbed Benson by the neck, begging him to stop the car.

Moments later, Joseph McLendon, his son, John, and his stepson, George Farmer, stopped at the embankment after noticing smoke billowing from the grass fire which surrounded the Benson vehicle. These witnesses observed Kachanovich situated approximately halfway up the embankment, kneeling down, pulling up his pants, and straightening his shirt. It appeared to Joseph McLendon that Kachanovich had removed his shoes and clothing to prevent them from getting wet when he exited the car and thus was in the process of redressing when the witnesses arrived. Kachanovich obviously appeared to be "sick, drunk or something," as evidenced by his dazed demeanor and complete disregard for the approaching grass fire, which was burning *792 only a foot or two away. Joseph McLendon shouted instructions for Kachanovich to get away from the fire, but the victim did not respond. Finally, the McLendons helped Kachanovich up the embankment and positioned him on the guardrail.

Appellant arrived at the scene in an obvious state of agitation and attempted to question Kachanovich concerning Benson and Jackie's whereabouts. When Kachanovich offered no response, appellant hit the victim twice in the face, knocking him off of the guardrail with the second punch. Kachanovich then gestured in the direction of the couple's alleged departure; appellant reinstated him to the guardrail and raced off in the direction indicated. After this encounter, Kachanovich "straightened" himself up and began putting on his shoes. The McLendons later persuaded the victim to move to the guardrail on the opposite side of the highway to escape the smoke from the fire.

Appellant returned approximately ten minutes later, visibly angry because he had been unable to locate Jackie. He questioned Kachanovich again but received no response. He then informed Kachanovich that he was from New York and that people from New York "got killed for doing things like this." After this announcement, appellant punched Kachanovich in the face a few times, again knocking him off of the guardrail. He then bent over and administered a couple of "fairly short punches" to Kachanovich's face as the victim lay on the ground. Finally, the 200-pound appellant straddled the guardrail and stomped or kicked Kachanovich once in the lower chest or upper abdomen with his cowboy boot, losing his balance in the process. Kachanovich gave no verbal or visible indication that he had suffered pain as a result of the beating and stomping, and with the exception of a recently bloodied mouth, he appeared to be no more seriously injured than he had been immediately after the embankment accident. Nonetheless, bystanders intervened and cautioned appellant not to stomp Kachanovich again for fear that he "might beat [the victim] to death or something." Kachanovich, who had made no effort to fight back or defend himself, got up unassisted and stood by the guardrail, wiping blood from his mouth with his handkerchief. After calming down, appellant ultimately went over and apologized to the victim.

Medical personnel arrived at the scene and transported Kachanovich to the hospital where he was admitted for "severe abdominal pain" and general trauma. Paul Kachanovich died approximately four hours after the accident of abdominal bleeding which emergency surgery failed to control.

At trial, Dr. Lee Robert Miller, Hillsborough County Associate Medical Examiner, a witness for the state, provided the only testimony concerning the cause of Kachanovich's death. Dr. Miller testified that the forty-nine-year-old decedent died of massive hemorrhaging in the abdominal cavity after he sustained internal injuries over a five- or six-square inch area in the upper abdomen, toward the midline of his body. The doctor believed that those injuries had been caused by a blunt trauma probably inflicted immediately above the injured area by an undetermined number of blows, estimated to be "not many" in number.

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Bluebook (online)
469 So. 2d 790, 10 Fla. L. Weekly 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brate-v-state-fladistctapp-1985.