IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D21-3006 LT Case No. 2019-CF-001451
OSCAR TRINIDAD,
Appellee.
________________________________/
Opinion filed October 28, 2022
Appeal from the Circuit Court for Osceola County, Mikaela Nix-Walker, Judge.
Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
William R. Ponall, of Ponall Law, Maitland, for Appellee.
SASSO, J. The State appeals the trial court’s decision to grant Oscar Trinidad’s
(“Appellee”) motion to suppress an audio recording from evidence in his
pending criminal trial. On appeal the State argues that the trial court erred
by concluding that the probative value of the suppressed evidence would be
outweighed by the danger of unfair prejudice. For the following reasons, we
agree and reverse.
On April 21, 2019, Appellee was arrested following allegations of
sexual abuse. Earlier that day, the alleged victim, who was between the ages
of eleven and seventeen when the offenses allegedly occurred, had used
her iPhone to record audio of a conversation between herself and Appellee,
which she recorded without notifying or obtaining Appellee’s consent. The
recording was transcribed as follows:
[Appellee]: You know, I could go, I could go to jail for the rest of my life. [Victim]: Ok, but… [Appellee]: Inaudible…Are you telling her? [Victim]: Well, she’s my friend, she’s like the only one who actually helps me. [Appellee]: Oh, so you gonna [sic] call the cops on me now? [Victim]: We’re not calling the cops on you, you need to calm down, we’re not calling the cops on you. [Appellee]: Yea you told me that. You know something, it’s not my fault too, it’s your fault too. [Victim]: How is it my fault? [Appellee]: Because you’re always get naked and… inaudible,,, too! [Victim]: That’s not my fault! I'm not, I’m not getting naked! Naked, getting naked where?
2 [Appellee]: And, And… Come on [Victim]. [Victim]: I never, no, I don’t [Appellee]: Don’t say it was just just me. Because… Don’t say it was just me! [Victim]: What!? No! [Appellee]: Yes. Don’t, don’t, don’t play innocent. [Victim]: Really! I’m not doing anything wrong! [Appellee]: Ahh Ok. No? What, you don't come to my bed too sometimes? [Victim]: No, I don’t! No, I don’t! [Appellee]: No? Come on [Victim]. Get up. I'll leave, I'll leave and then don’t say your mother, your mother is going to have a fit! And… [Victim]: Ok well, she’s gonna [sic] have a fit because she needs to know! [Appellee]: Inaudible… To know what!? [Victim]: Whispering Ohh my god [sic]! [Appellee:] What you doing now? [Victim]: I’m on Instagram. [Appellee]: I’m gonna [sic] leave. I'm gonna [sic] leave. That… That… Get up! Put your phone down! Got to talk to you! Inaudible… That’s why you gonna [sic] record your mother too… inaudible… you wanna [sic] get your mother in trouble too? [Victim]: No I'm gonna [sic] record the conversation because she never does anything, every single time I call her. [Appellee]: Put the phone. [Victim]: Cause every single time I tell her she never, she never pays attention… [Appellee]: Turn it off. Turn it off.
Appellee was ultimately charged with one count of lewd or lascivious
molestation on a victim less than twelve; six counts of lewd or lascivious
molestation; one count of lewd or lascivious conduct; six counts of sexual
activity with a child; one count of showing obscene material to a minor; and
3 one count of battery upon a child by throwing, projecting, or expelling certain
fluids.
On October 6, 2021, Appellee filed a pretrial motion to suppress the
audio recording. Appellee argued in the motion, inter alia, that: (1) the
recording was an illegal intercepted communication under chapter 934,
Florida Statutes (2020), and therefore inadmissible; (2) the contents of the
recording were legally irrelevant; and (3) its probative value would be
substantially outweighed by the danger of unfair prejudice to Appellee.
On November 1, 2021, the trial court held a hearing on Appellee’s
amended motion to suppress. The State relied on section 934.03(2)(k),
Florida Statutes, arguing that the recording was legally obtained pursuant to
an exception to Florida’s general prohibition against interception of oral
communications, and that it was legally relevant. After hearing testimony and
argument of counsel, the trial court granted the motion to suppress. In its oral
ruling, the trial court explained that the recording may be found relevant “in
some ways,” but the evidence would confuse a jury, due in part to the
inaudibility of some of its content, and that the prejudice would outweigh the
value of the evidence.
4 ANALYSIS
The State argues that the trial court abused its discretion in finding that
the April 21, 2019 recording was inadmissible under section 90.403 and in
granting Appellee’s motion to suppress. In considering rulings on a motion
to suppress, “an appellate court reviews legal conclusions using a de novo
standard, but generally defers to the factual findings of a trial court.”
Ferryman v. State, 919 So. 2d 710, 712 (Fla. 5th DCA 2006).
As an initial matter, we agree with the State that the recorded audio
constitutes relevant evidence. See, e.g., State v. Morgan, 171 So. 3d 210,
213 (Fla. 2d DCA 2015) (“Partially inaudible or unintelligible audio recordings
are not per se inadmissible. Instead, [their] admissibility . . . is ‘guided by the
principle that an audio [recording] should be admitted into evidence unless
the condition of the recording degrades its usefulness to such an extent that
it makes the evidence misleading or irrelevant.’” (second alteration in
original) (citations omitted)); State v. Elkin, 595 So. 2d 119, 120 (Fla. 3d DCA
1992) (“For a statement to constitute an admission, it need not, in and of
itself, speak directly to guilt. It may be a statement from which guilt can be
inferred when the statement is analyzed in the context of other admissible
evidence.”). As a result, the issue becomes whether the trial court abused its
5 discretion in determining that the probative value of the audio recording is
substantially outweighed by unfair prejudice to Appellee.
Section 90.403, Florida Statutes (2021), states that evidence that is
relevant may nonetheless be inadmissible “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
issues, misleading the jury, or needless presentation of cumulative
evidence.” As this Court explained in State v. Gerry, 855 So. 2d 157 (Fla. 5th
DCA 2003), “[t]he unfair prejudice that section 90.403 attempts to eliminate
relates to evidence that ‘inflames the jury or appeals improperly to the jury’s
emotions.’” Id. at 159 (citation omitted). This type of “improper” evidence has
been characterized as evidence that “improperly implies that the defendant
is guilty simply because he or she has a propensity to commit crimes or is a
person of bad character.” Id.
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D21-3006 LT Case No. 2019-CF-001451
OSCAR TRINIDAD,
Appellee.
________________________________/
Opinion filed October 28, 2022
Appeal from the Circuit Court for Osceola County, Mikaela Nix-Walker, Judge.
Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
William R. Ponall, of Ponall Law, Maitland, for Appellee.
SASSO, J. The State appeals the trial court’s decision to grant Oscar Trinidad’s
(“Appellee”) motion to suppress an audio recording from evidence in his
pending criminal trial. On appeal the State argues that the trial court erred
by concluding that the probative value of the suppressed evidence would be
outweighed by the danger of unfair prejudice. For the following reasons, we
agree and reverse.
On April 21, 2019, Appellee was arrested following allegations of
sexual abuse. Earlier that day, the alleged victim, who was between the ages
of eleven and seventeen when the offenses allegedly occurred, had used
her iPhone to record audio of a conversation between herself and Appellee,
which she recorded without notifying or obtaining Appellee’s consent. The
recording was transcribed as follows:
[Appellee]: You know, I could go, I could go to jail for the rest of my life. [Victim]: Ok, but… [Appellee]: Inaudible…Are you telling her? [Victim]: Well, she’s my friend, she’s like the only one who actually helps me. [Appellee]: Oh, so you gonna [sic] call the cops on me now? [Victim]: We’re not calling the cops on you, you need to calm down, we’re not calling the cops on you. [Appellee]: Yea you told me that. You know something, it’s not my fault too, it’s your fault too. [Victim]: How is it my fault? [Appellee]: Because you’re always get naked and… inaudible,,, too! [Victim]: That’s not my fault! I'm not, I’m not getting naked! Naked, getting naked where?
2 [Appellee]: And, And… Come on [Victim]. [Victim]: I never, no, I don’t [Appellee]: Don’t say it was just just me. Because… Don’t say it was just me! [Victim]: What!? No! [Appellee]: Yes. Don’t, don’t, don’t play innocent. [Victim]: Really! I’m not doing anything wrong! [Appellee]: Ahh Ok. No? What, you don't come to my bed too sometimes? [Victim]: No, I don’t! No, I don’t! [Appellee]: No? Come on [Victim]. Get up. I'll leave, I'll leave and then don’t say your mother, your mother is going to have a fit! And… [Victim]: Ok well, she’s gonna [sic] have a fit because she needs to know! [Appellee]: Inaudible… To know what!? [Victim]: Whispering Ohh my god [sic]! [Appellee:] What you doing now? [Victim]: I’m on Instagram. [Appellee]: I’m gonna [sic] leave. I'm gonna [sic] leave. That… That… Get up! Put your phone down! Got to talk to you! Inaudible… That’s why you gonna [sic] record your mother too… inaudible… you wanna [sic] get your mother in trouble too? [Victim]: No I'm gonna [sic] record the conversation because she never does anything, every single time I call her. [Appellee]: Put the phone. [Victim]: Cause every single time I tell her she never, she never pays attention… [Appellee]: Turn it off. Turn it off.
Appellee was ultimately charged with one count of lewd or lascivious
molestation on a victim less than twelve; six counts of lewd or lascivious
molestation; one count of lewd or lascivious conduct; six counts of sexual
activity with a child; one count of showing obscene material to a minor; and
3 one count of battery upon a child by throwing, projecting, or expelling certain
fluids.
On October 6, 2021, Appellee filed a pretrial motion to suppress the
audio recording. Appellee argued in the motion, inter alia, that: (1) the
recording was an illegal intercepted communication under chapter 934,
Florida Statutes (2020), and therefore inadmissible; (2) the contents of the
recording were legally irrelevant; and (3) its probative value would be
substantially outweighed by the danger of unfair prejudice to Appellee.
On November 1, 2021, the trial court held a hearing on Appellee’s
amended motion to suppress. The State relied on section 934.03(2)(k),
Florida Statutes, arguing that the recording was legally obtained pursuant to
an exception to Florida’s general prohibition against interception of oral
communications, and that it was legally relevant. After hearing testimony and
argument of counsel, the trial court granted the motion to suppress. In its oral
ruling, the trial court explained that the recording may be found relevant “in
some ways,” but the evidence would confuse a jury, due in part to the
inaudibility of some of its content, and that the prejudice would outweigh the
value of the evidence.
4 ANALYSIS
The State argues that the trial court abused its discretion in finding that
the April 21, 2019 recording was inadmissible under section 90.403 and in
granting Appellee’s motion to suppress. In considering rulings on a motion
to suppress, “an appellate court reviews legal conclusions using a de novo
standard, but generally defers to the factual findings of a trial court.”
Ferryman v. State, 919 So. 2d 710, 712 (Fla. 5th DCA 2006).
As an initial matter, we agree with the State that the recorded audio
constitutes relevant evidence. See, e.g., State v. Morgan, 171 So. 3d 210,
213 (Fla. 2d DCA 2015) (“Partially inaudible or unintelligible audio recordings
are not per se inadmissible. Instead, [their] admissibility . . . is ‘guided by the
principle that an audio [recording] should be admitted into evidence unless
the condition of the recording degrades its usefulness to such an extent that
it makes the evidence misleading or irrelevant.’” (second alteration in
original) (citations omitted)); State v. Elkin, 595 So. 2d 119, 120 (Fla. 3d DCA
1992) (“For a statement to constitute an admission, it need not, in and of
itself, speak directly to guilt. It may be a statement from which guilt can be
inferred when the statement is analyzed in the context of other admissible
evidence.”). As a result, the issue becomes whether the trial court abused its
5 discretion in determining that the probative value of the audio recording is
substantially outweighed by unfair prejudice to Appellee.
Section 90.403, Florida Statutes (2021), states that evidence that is
relevant may nonetheless be inadmissible “if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
issues, misleading the jury, or needless presentation of cumulative
evidence.” As this Court explained in State v. Gerry, 855 So. 2d 157 (Fla. 5th
DCA 2003), “[t]he unfair prejudice that section 90.403 attempts to eliminate
relates to evidence that ‘inflames the jury or appeals improperly to the jury’s
emotions.’” Id. at 159 (citation omitted). This type of “improper” evidence has
been characterized as evidence that “improperly implies that the defendant
is guilty simply because he or she has a propensity to commit crimes or is a
person of bad character.” Id. at 160. Separately, the “confusion” to which
90.403 refers is confusion of the issues. Evidence may fall into that category
if the evidence distracts jurors from the central issues of the trial in the case
in which the defendant is charged. See McLean v. State, 934 So. 2d 1248,
1262 (Fla. 2006).
Here, the trial court found that the probative value of the recording
would be outweighed by “some prejudice” and that it would “confuse a jury.”
Nowhere, though, did the trial court conclude or suggest that the audio
6 recording is the type of evidence that would improperly inflame the jury or
improperly appeal to the jury’s emotions. Instead, the trial court appeared to
conclude that because the audio recording contained neither a definitive
confession nor an overt reference to molestation or intercourse it may
confuse the jury. But the lack of these explicit references would neither
improperly inflame the jury, nor would it distract the jury from the issues in
the case merely because the evidence requires inference. To the contrary,
the statements are evidence from which guilt as to the charged crimes may
be inferred. As a result, we conclude the trial court abused its discretion in
concluding the audio recording was inadmissible pursuant to section 90.403.
See McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007) (holding that trial
court “abuses its discretion if its ruling is based on an erroneous view of the
law or on a clearly erroneous assessment of the evidence”).
Finally, Appellee argues that even if this Court finds the trial court’s
reasoning in granting his motion to suppress to be erroneous, it should still
affirm under the tipsy coachman doctrine because the recording was
inadmissible as an illegally intercepted oral communication. Appellee cites
McDade v. State, 154 So. 3d 292 (Fla. 2014), to support his argument that
the recording should be excluded pursuant to section 934.03, Florida
7 Statutes (2021), and section 934.06, Florida Statutes (2021). 1 However,
McDade analyzed the 2010 version of section 934.03. The statute was
amended in 2015 and now provides that it is lawful for a child under 18 years
of age to intercept and record an oral communication if:
the child is a party to the communication and has reasonable grounds to believe that recording the communication will capture a statement by another party to the communication that the other party intends to commit, is committing, or has committed an unlawful sexual act or an unlawful act of physical force or violence against the child.
§ 934.03(2)(k), Fla. Stat. (2021). As the State argues, that exception applies
here. Therefore, because the recording may be properly admitted under
section 934.06 as an exception to the general prohibition of intercepting oral
communications of section 934.03(1), we reject Appellee’s tipsy coachman
argument.
For the foregoing reasons, we conclude the trial court erred in granting
Appellee’s motion to suppress. We therefore reverse the order and remand
for additional proceedings.
1 Section 934.06, Florida Statutes (2021), provides in relevant part:
“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court . . . if the disclosure of that information would be in violation of this chapter.”
8 REVERSED and REMANDED.
NARDELLA and WOZNIAK, JJ., concur.