Third District Court of Appeal State of Florida
Opinion filed June 18, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-1645 Lower Tribunal No. F22-19629 ________________
Markus Leo Husarek, Appellant,
vs.
The State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Cristina Miranda, Judge.
Carlos J. Martinez, Public Defender, and Nicholas A. Lynch, Assistant Public Defender, for appellant.
James Uthmeier, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for appellee.
Before FERNANDEZ, LINDSEY, and MILLER, JJ.
MILLER, J. Appellant, Markus Leo Husarek, challenges his conviction and
sentence for resisting an officer without violence, in violation of section
843.02, Florida Statutes (2022). On appeal, he contends that the trial court
erred in failing to instruct the jury that knowledge of the officer’s intent to
detain him was an essential element of the crime. Because this issue was
unpreserved and the record does not establish fundamental error, we affirm.
I
Shanai Hadley called 911 and reported that a white male, later
identified as Husarek, struck her in the face while uttering a racial slur.
Husarek was present during the 911 call.
Lieutenant Luis Vasquez was a block away from the location reported
in the dispatch in an unmarked police cruiser. He observed Husarek and
Hadley crossing the street, and he made a U-turn and activated his red and
blue lights. He parked and exited his vehicle.
Vasquez approached Husarek on foot, clad in full uniform. He
instructed Husarek to stop and speak with him. Husarek instead looked at
him and walked away. Vasquez then attempted to grab him, but Husarek
increased his gait to a full run. Other officers arrived and gave chase. They
eventually apprehended Husarek in the back of a gas station.
2 The State charged Husarek with battery with prejudice and resisting
without violence. The case proceeded to a jury trial. After the State rested,
the defense moved for a judgment of acquittal on the resisting count. The
defense conceded Husarek knew Vasquez was an officer but contended that
the State failed to prove the officer was executing a legal duty. The trial court
denied the motion.
During closing argument, defense counsel asked the following: “Did
[Husarek] think that he had a reason to stop? Was he being forced to stop?”
The defense further argued:
And I want to talk about the execution of a legal duty. What was Lieutenant Vasquez executing? He told you that he was merely investigating. He wanted to get both sides of the story. He was not trying to detain Mr. Husarek, to prevent him from leaving. He was not trying to arrest him. He did not go after him.
The resisting without violence jury instruction tracked Florida Standard
Jury Instruction in Criminal Cases 21.2 and included the following elements:
(1) Husarek resisted, obstructed, or opposed Vasquez; (2) Vasquez was
engaged in the lawful execution of a legal duty; (3) Vasquez was an officer;
and (4) Vasquez knew Husarek was an officer. The defense did not object
or request a special instruction.
3 The jury acquitted Husarek of battery but convicted him of resisting
without violence. The trial court imposed a 364-day jail sentence, and this
appeal followed.
II
In Florida, jury instructions are subject to the contemporaneous
objection rule. Absent an objection at trial, an error may only be raised on
appeal if it amounts to fundamental error. See Battle v. State, 911 So. 2d
85, 88–89 (Fla. 2005). “Whether an omission or other error in jury
instructions is fundamental depends, under the cases, on whether it pertains
to a factual determination the jury must make in the particular case.” Lane
v. State, 867 So. 2d 539, 541 (Fla. 1st DCA 2004). “Failing to instruct on an
element of the crime over which the record reflects there was no dispute is
not fundamental error and there must be an objection to preserve the issue
for appeal.” State v. Delva, 575 So. 2d 643, 645 (Fla. 1991). That is because
to be deemed fundamental, “the error must reach down into the validity of
the trial itself to the extent that a verdict of guilty could not have been
obtained without the assistance of the alleged error.” Brown v. State, 124
So. 2d 481, 484 (Fla. 1960).
III
4 Section 843.02, Florida Statutes (2022), provides that an individual
commits a first-degree misdemeanor if he or she knowingly resists,
obstructs, or opposes a law enforcement officer executing a legal duty.
Consistent with the statute, the State must prove that the defendant engaged
in conduct or words adequate to establish resistance, obstruction, or
opposition. See N.H. v. State, 890 So. 2d 514, 516–17 (Fla. 3d DCA 2005).
The Florida Supreme Court has explained that, depending on the
circumstances, flight cases may implicate an additional specific evidentiary
showing. In C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009), the court explained
that “as a general rule, flight, standing alone, is insufficient to form the basis
of a resisting without violence charge.” Id. at 1186. In such cases, “an
individual who flees must know of the officer’s intent to detain him . . . .” Id.
(citing H.H. v. State, 775 So. 2d 397, 398 (Fla. 4th DCA 2000)).
In several C.E.L. progeny cases, courts have reversed convictions
upon an insufficient showing of knowledge of intent to detain. See O.B. v.
State, 36 So. 3d 784, 788 (Fla. 3d DCA 2010) (reversing where fleeing
juvenile lacked awareness of officer’s intent to stop or chase him); McClain
v. State, 202 So. 3d 140, 143 (Fla. 2d DCA 2016) (granting certiorari where
defendant fled to his grandmother’s duplex and officers never commanded
him to stop); Brown v. State, 199 So. 3d 1010, 1012 (Fla. 4th DCA 2016)
5 (“Here, the state’s evidence consisted of flight, standing alone. The state did
not present any evidence that any officer directed the defendant to stop
either before or during his flight. Thus, the state’s evidence was insufficient
to prove that the defendant knew of the police’s intent to detain him.”); Perez
v. State, 138 So. 3d 1098, 1100–01 (Fla. 1st DCA 2014) (reversing resisting
without violence charge for lack of knowledge where “the State did not
present any evidence that law enforcement directed appellant to stop”). But
no case has addressed the precise issue before us—that is, whether the trial
court’s failure to sua sponte instruct the jury on the issue of knowledge of
intent to detain constitutes fundamental error under the facts of record.
IV
Limiting our analysis, as we must, to the facts of this particular case,
we conclude it does not.
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Third District Court of Appeal State of Florida
Opinion filed June 18, 2025. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D23-1645 Lower Tribunal No. F22-19629 ________________
Markus Leo Husarek, Appellant,
vs.
The State of Florida, Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Cristina Miranda, Judge.
Carlos J. Martinez, Public Defender, and Nicholas A. Lynch, Assistant Public Defender, for appellant.
James Uthmeier, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for appellee.
Before FERNANDEZ, LINDSEY, and MILLER, JJ.
MILLER, J. Appellant, Markus Leo Husarek, challenges his conviction and
sentence for resisting an officer without violence, in violation of section
843.02, Florida Statutes (2022). On appeal, he contends that the trial court
erred in failing to instruct the jury that knowledge of the officer’s intent to
detain him was an essential element of the crime. Because this issue was
unpreserved and the record does not establish fundamental error, we affirm.
I
Shanai Hadley called 911 and reported that a white male, later
identified as Husarek, struck her in the face while uttering a racial slur.
Husarek was present during the 911 call.
Lieutenant Luis Vasquez was a block away from the location reported
in the dispatch in an unmarked police cruiser. He observed Husarek and
Hadley crossing the street, and he made a U-turn and activated his red and
blue lights. He parked and exited his vehicle.
Vasquez approached Husarek on foot, clad in full uniform. He
instructed Husarek to stop and speak with him. Husarek instead looked at
him and walked away. Vasquez then attempted to grab him, but Husarek
increased his gait to a full run. Other officers arrived and gave chase. They
eventually apprehended Husarek in the back of a gas station.
2 The State charged Husarek with battery with prejudice and resisting
without violence. The case proceeded to a jury trial. After the State rested,
the defense moved for a judgment of acquittal on the resisting count. The
defense conceded Husarek knew Vasquez was an officer but contended that
the State failed to prove the officer was executing a legal duty. The trial court
denied the motion.
During closing argument, defense counsel asked the following: “Did
[Husarek] think that he had a reason to stop? Was he being forced to stop?”
The defense further argued:
And I want to talk about the execution of a legal duty. What was Lieutenant Vasquez executing? He told you that he was merely investigating. He wanted to get both sides of the story. He was not trying to detain Mr. Husarek, to prevent him from leaving. He was not trying to arrest him. He did not go after him.
The resisting without violence jury instruction tracked Florida Standard
Jury Instruction in Criminal Cases 21.2 and included the following elements:
(1) Husarek resisted, obstructed, or opposed Vasquez; (2) Vasquez was
engaged in the lawful execution of a legal duty; (3) Vasquez was an officer;
and (4) Vasquez knew Husarek was an officer. The defense did not object
or request a special instruction.
3 The jury acquitted Husarek of battery but convicted him of resisting
without violence. The trial court imposed a 364-day jail sentence, and this
appeal followed.
II
In Florida, jury instructions are subject to the contemporaneous
objection rule. Absent an objection at trial, an error may only be raised on
appeal if it amounts to fundamental error. See Battle v. State, 911 So. 2d
85, 88–89 (Fla. 2005). “Whether an omission or other error in jury
instructions is fundamental depends, under the cases, on whether it pertains
to a factual determination the jury must make in the particular case.” Lane
v. State, 867 So. 2d 539, 541 (Fla. 1st DCA 2004). “Failing to instruct on an
element of the crime over which the record reflects there was no dispute is
not fundamental error and there must be an objection to preserve the issue
for appeal.” State v. Delva, 575 So. 2d 643, 645 (Fla. 1991). That is because
to be deemed fundamental, “the error must reach down into the validity of
the trial itself to the extent that a verdict of guilty could not have been
obtained without the assistance of the alleged error.” Brown v. State, 124
So. 2d 481, 484 (Fla. 1960).
III
4 Section 843.02, Florida Statutes (2022), provides that an individual
commits a first-degree misdemeanor if he or she knowingly resists,
obstructs, or opposes a law enforcement officer executing a legal duty.
Consistent with the statute, the State must prove that the defendant engaged
in conduct or words adequate to establish resistance, obstruction, or
opposition. See N.H. v. State, 890 So. 2d 514, 516–17 (Fla. 3d DCA 2005).
The Florida Supreme Court has explained that, depending on the
circumstances, flight cases may implicate an additional specific evidentiary
showing. In C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009), the court explained
that “as a general rule, flight, standing alone, is insufficient to form the basis
of a resisting without violence charge.” Id. at 1186. In such cases, “an
individual who flees must know of the officer’s intent to detain him . . . .” Id.
(citing H.H. v. State, 775 So. 2d 397, 398 (Fla. 4th DCA 2000)).
In several C.E.L. progeny cases, courts have reversed convictions
upon an insufficient showing of knowledge of intent to detain. See O.B. v.
State, 36 So. 3d 784, 788 (Fla. 3d DCA 2010) (reversing where fleeing
juvenile lacked awareness of officer’s intent to stop or chase him); McClain
v. State, 202 So. 3d 140, 143 (Fla. 2d DCA 2016) (granting certiorari where
defendant fled to his grandmother’s duplex and officers never commanded
him to stop); Brown v. State, 199 So. 3d 1010, 1012 (Fla. 4th DCA 2016)
5 (“Here, the state’s evidence consisted of flight, standing alone. The state did
not present any evidence that any officer directed the defendant to stop
either before or during his flight. Thus, the state’s evidence was insufficient
to prove that the defendant knew of the police’s intent to detain him.”); Perez
v. State, 138 So. 3d 1098, 1100–01 (Fla. 1st DCA 2014) (reversing resisting
without violence charge for lack of knowledge where “the State did not
present any evidence that law enforcement directed appellant to stop”). But
no case has addressed the precise issue before us—that is, whether the trial
court’s failure to sua sponte instruct the jury on the issue of knowledge of
intent to detain constitutes fundamental error under the facts of record.
IV
Limiting our analysis, as we must, to the facts of this particular case,
we conclude it does not. We first note that this case differs procedurally from
C.E.L. and the litany of cases cited above. Those decisions involved the
quantum of proof necessary to sustain a conviction or a finding of
delinquency, not the entitlement to augmentation of the standard jury
instruction.
Further, casting aside the fact that implicit in the ordinary, everyday
meanings of the words “resisted,” “obstructed,” and “opposed” is some level
of knowing defiance, “[f]ailing to instruct on an element of the crime over
6 which the record reflects there was no dispute is not fundamental error . . . .”
Delva, 575 So. 2d at 645; see Polite v. State, 973 So. 2d 1107, 1113 (Fla.
2007) (“[T]he word ‘resist’ has been defined as follows: ‘to exert force in
opposition . . . to exert oneself so as to counteract or defeat.’ The very nature
of ‘resisting’ therefore implies an element of knowledge, i.e., an awareness
that another is exerting force and an intent to counter that force in
opposition.”) (citation omitted); Obstruct, Black’s Law Dictionary (12th ed.
2024) (“To make difficult or impossible; to keep from happening;
hinder . . . .”); Oppose, American Heritage Dictionary (5th ed. 2022) (“To be
hostile or resistant to . . . . To be or act in opposition.”); see also Obstruction
of Justice, Garner’s Dictionary of Legal Usage (3d ed. 2011) (“[I]nterference
with the orderly administration of law . . . .”). And here, only a single
witness—Vasquez—testified to the chronology of events preceding
Husarek’s arrest. The uncontroverted evidence established that Vasquez
issued a verbal command to Husarek after he activated his police lights and
emerged from his undercover cruiser in full uniform. Husarek defied that
command by making eye contact and first walking and then running from
Vasquez and the other responding officers. Under these circumstances,
there was no showing that knowledge of intent to detain was disputed, and
7 therefore any contended error in the standard instruction cannot be deemed
fundamental. See Knight v. State, 286 So. 3d 147, 151 (Fla. 2019).
Affirmed.