Barry Edward Ellis v. State of Florida , 258 So. 3d 491 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D16-2922
_____________________________
BARRY EDWARD ELLIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
Edward P. Nickinson, III, Judge.
May 3, 2018
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
2
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).
3
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 vari-vue 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
4
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.
5
ROBERTS, J., concurs; MAKAR, J., dissents with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
MAKAR, J., dissenting.
Florida law penalizes those who willfully flee or attempt to
elude a “ law enforcement officer in an authorized law enforcement
patrol vehicle, with agency insignia and other jurisdictional
markings prominently displayed on the vehicle, with siren and
lights activated,” and more so if the eluder drives at a high speed
or with wanton disregard for the safety of others. § 316.1935(2) &
(3), Fla. Stat. (2017) (third degree felony for the former, second
degree for the latter). Whether sufficient evidence was presented
that the vehicle used by law enforcement officers in their pursuit
of Barry Edward Ellis had “agency insignia and other
jurisdictional markings prominently displayed on the vehicle” is
the question posed.
A convenience store employee waved down and told Officer
Maria Landy, a twenty-year veteran of the Pensacola Police
Department working the midnight shift, that a male had stolen
cigarettes and left in a white car headed west on Bayou Boulevard.
Officer Landy headed in that direction and within seconds came
upon a red light at 9th Avenue, where a “little white car” was
stopped—it being the only vehicle in sight at that late hour. 1 Ellis
1 Affirmance of the trial court’s denial of Ellis’s motion to
suppress is proper, a minimally sufficient basis for the initial
investigatory stop existed based upon these and other related
facts. Moreover, any causal link of illegality from the stop was
broken when Ellis fled and injured Officer Landy. See United
States v. Bailey, 691 F.2d 1009, 1013 (11th Cir. 1982) (finding
flight from police that amounts to a new, distinct crime purges
6
was driving and a second occupant could be seen in the front
passenger seat. A second police officer arrived almost immediately,
informing Officer Landy that a third occupant—who was difficult
to see—was in the back seat. Ellis had turned the car off at Officer
Landy’s direction, but cranked it back up when she asked him to
lower the back-seat windows. Ellis then sped away, injuring
Officer Landy in the process. Both officers took pursuit with their
police lights flashing and sirens on. The chase—though brief—was
over the speed limit and resulted in Ellis’s vehicle turning into a
dead-end street and being abandoned. Ellis was taken into custody
soon thereafter.
At trial, after the close of the State’s case, Ellis moved for a
judgment of acquittal on the basis that the State failed to present
sufficient evidence that Officer Landy’s vehicle had “agency
insignia and other jurisdictional markings prominently displayed”
on it. His motion was denied, and denied again at the conclusion
of the case. Ellis was convicted of a second-degree felony under
section 316.1935(3)(a), Florida Statutes. Ellis appeals, again
claiming the lack of evidence of “agency insignia” on the police
vehicle requires reversal of his conviction under subsection (3)(a)
(though, as mentioned below, on remand he would be re-sentenced
to a violation under subsection (1)).
Analysis begins, and ultimately ends, with the statutory
language the Florida Legislature has used to define criminality for
fleeing or attempting to elude law enforcement officers. Violations
and penalties are based on specific statutorily-defined scenarios.
Penalties are severe, ranging from third to second degree felonies,
plus mandatory revocation of drivers’ licenses and forfeiture of
motor vehicles, if involved in the flight. § 316.1935(1)-(7), Fla. Stat.
(entitled “Fleeing or attempting to elude a law enforcement officer;
aggravated fleeing or eluding.”).
initial police illegality); see also Tims v. State, 204 So. 3d 536 (Fla.
1st DCA 2016) (finding that “fruit of the poisonous tree” doctrine
does not “immunize a defendant from arrest for new crimes”
committed during illegal searches, else a defendant would have
“an intolerable carte blanche to commit further criminal acts”)
(quoting Bailey, 691 F.2d at 1017).
7
The basic fleeing/eluding charge in subsection (1) of the
statute does not require that the officer be in a law enforcement
vehicle or that pursuit by such vehicle occur. Instead, it makes it
unlawful “for the operator of any vehicle, having knowledge that
he or she has been ordered to stop such vehicle by a duly
authorized law enforcement officer, willfully to refuse or fail to stop
the vehicle in compliance with such order” or “having stopped in
knowing compliance with such order, willfully to flee in an attempt
to elude the officer[.]” § 316.1935(1), Fla. Stat.
In contrast, subsections (2) and (3) limit themselves to
fleeing/eluding law enforcement officers who are physically inside
a specifically-defined subset of police vehicles. Under subsection
(2), it is unlawful for a person to flee or attempt to elude a law
enforcement officer while that officer is “in an authorized law
enforcement patrol vehicle, with agency insignia and other
jurisdictional markings prominently displayed on the vehicle, with
siren and lights activated,” which is a third degree felony. Id.
§ 316.1935(2). Similarly, subsection (3)(a)—under which Ellis was
charged—makes it unlawful to engage in the criminal conduct
defined in subsection (2), if the person “[d]rives at high speed, or
in any manner which demonstrates a wanton disregard for the
safety of persons or property[.]” Id. § 316.1935(3)(a). Such conduct
is punishable as a second degree felony. A person who knowingly
flees a police officer violates subsection (1), but not subsections (2)
or (3), which require proof that the officer is in the statutorily-
defined law enforcement vehicle.
In this subsection (3) case, no doubt exists that Officer Landy
was in a law enforcement patrol vehicle, that Ellis fled at high
speed and dangerously from her lawful authority, and that the
pursuit thereafter involved “siren and lights activated” on the
officer’s vehicle. She testified that she was in a “marked police
vehicle” with “all the decals, lights and everything” but she did not
describe what the decals were, what they said, where they were
located, or their size. She confirmed that the words “Pensacola
Police Department” were on the vehicle, but did not say where, how
large the letters were, or whether the words were part of or
considered the Department’s agency insignia. No picture of the
vehicle was put into evidence. Though not relied upon by the State
8
on appeal, body-cam video—shown to the jury—fleetingly shows
that decals of “PENSACOLAPOLICE.COM” and “POLICE” were
displayed on the rear of Officer Landy’s vehicle and along the rear
window’s upper edge, respectively. At best, these general
references fall within the common understanding of “jurisdictional
markings,” which define an agency’s geographic domain, such as
“Pensacola Police Department.”
No effort was made below or on appeal to establish that either
of these letter decals was an “agency insignia,” a phrase not
defined by statute, but best understood contextually as an official
governmental symbol of criminal justice authority—typically a
shield or badge-like emblem—that only authorized law
enforcement officers may use. The popularity of police insignias is
reflected in a vibrant and long-established marketplace where
collectors buy/sell patches and badges nationally and
internationally. It has fostered the establishment of innumerable
police insignia collectors’ associations. 2 “Insignia” alone—as
reflected by its many and assorted dictionary definitions 3—is a
2 One example is the Police Insignia Collectors Association of
Great Britain, which has an American following and a page
devoted to United States police insignias, which are unvaryingly
shields and badges. See http://www.pica.co.uk/america_page.html
(last visited April 2, 2018). Numerous U.S.-based associations also
exist, though focused more generally on police memorabilia
including badges, emblems and other police insignia.
3 United States v. Costello, 666 F.3d 1040, 1043-44 (7th Cir.
2012) (“[D]ictionaries must be used as sources of statutory
meaning only with great caution. . . . Dictionary definitions are
acontextual, whereas the meaning of sentences depends critically
on context, including all sorts of background understandings.”); see
also Frank H. Easterbrook, Text, History, and Structure in
Statutory Interpretation, 17 HARV. J.L. & PUBLIC POLICY 61, 67
(1994) (“In interesting cases, meaning is not ‘plain’; it must be
imputed; and the choice among meanings must have a footing
more solid that a dictionary—which is a museum of words, an
historical catalog rather than a means to decode the work of
legislatures.”).
9
much broader concept and different from “agency insignia,” which
has a narrower and commonly-understood meaning in the context
of law enforcement patrol vehicles: badges and shields reflecting
official police authority.
An “agency insignia” is distinct from, but often accompanies
and complements, the requisite “jurisdictional markings.” Here’s a
common example of both an “agency insignia” (the official badge-
like emblem) and jurisdictional markings (“Sheriff Manatee
County”) on a law enforcement patrol vehicle:
This contrasts with what we have in this case, which is, at best,
only the “jurisdictional markings” of the Pensacola Police
Department without an official agency insignia:
10
The statutory requirement of a prominently displayed agency
insignia provides greater assurance to the general public that
persons operating such vehicles are real police officers with the
authority to make official stops, thereby increasing the
punishment against those who willfully flee; it also dovetails with
the laws punishing those who impersonate police officers and
vehicles to facilitate crimes. See also §§ 843.08-.085, Fla. Stat.
(making unlawful impersonation of officers, use of blue lights, and
use of badges and other indicia of authority). Agency insignia and
jurisdictional markings are separate and distinct statutory
requirements; both must be proven to establish that Ellis violated
subsection (3).
On this point, Florida appellate courts have taken a generally
unified approach as to whether evidence is legally sufficient to
support a guilty verdict under subsections (2) or (3), both of which
utilize the “agency insignia” language. Excepting one Fourth
District case, every district court decision has taken a strict
approach, holding the State to its evidentiary burden of proving
that an officer’s vehicle has “agency insignia and other
jurisdictional markings prominently displayed.” The exception,
discussed below, takes a different and insupportable approach,
concluding that an offender may violate subsection (2) when an
offender knowingly flees a law enforcement vehicle, even if proof
of all the requisite markings is lacking.
As to the majority approach, in Gorsuch v. State, 797 So. 2d
649 (Fla. 3d DCA 2001), the Third District held that a vehicle
marked with a fifteen-inch “City of Miami seal” on the door was
insufficient to satisfy the statutory language that the pursuing
officer was in “an authorized law enforcement patrol vehicle with
agency insignia and other jurisdictional markings[.]” Id. at 650.
The defendant fled recklessly from officers, all of whom were
wearing t-shirts with police insignia at the time of the initial stop
arising from narcotics surveillance. Two officers in the pursuit
drove unmarked vehicles and the third had the vehicle with the
city seal. Because there “was no evidence . . . that any of the
vehicles had an insignia as required by subsection 316.1935(3),”
and no demonstration that sirens had been operated during the
11
flight, the conviction under subsection (3)(a) was reversed and
corrected to a violation of subsection (1).
This Court followed Gorsuch’s reasoning in Slack v. State, 30
So. 3d 684 (Fla. 1st DCA 2010), which held that the State had
failed to present evidence of prominently displayed agency insignia
and jurisdictional markings. The officer in Slack “testified he was
driving a ‘marked patrol car, lights on top,’ and was wearing a
uniform at the time. He testified that, to make the [suspect vehicle]
stop, he ‘engaged’ his exterior lights and activated his siren.” Id. at
686. This testimony was not enough.
While [the officer] testified he was driving a “marked
patrol car” with “lights on top” and that he activated his
lights and siren, there was no evidence of “agency
insignia and other jurisdictional markings prominently
displayed on the vehicle.” . . . That not all markings on
law enforcement vehicles constitute agency insignia was
made clear in Gorsuch. By neglecting to adduce any
evidence that [the officer’s] vehicle had agency insignia or
other jurisdictional markings, the state failed to make
out a prima facie case of fleeing or attempting to elude a
law enforcement officer . . . and the trial court erred in
denying Mr. Slack’s motion for judgment of acquittal.
Id. at 687. This Court noted that the trial judge in Slack (like the
trial judge here) denied the motion for judgment of acquittal based,
in part, by presuming that the vehicle had to be marked in a
particular way. Id. (“[T]he trial judge denied the motion for
judgment of acquittal, reasoning: ‘He did refer it was a marked
patrol vehicle, and he did identify himself as a member of the
sheriff's department. I know by Florida law their patrol vehicles
must be marked in a certain scheme as required by Florida law.’”)
(emphasis added). Neither the evidence presented nor the trial
court’s presumption as to the vehicle’s markings, however, was
deemed sufficient to satisfy the statutory requirement of a
prominently displayed agency insignia and markings.
Similarly, in Jackson v. State, 818 So. 2d 539 (Fla. 2d DCA
2002), the Second District held that the lack of evidence that a
12
police vehicle’s markings were “prominently displayed” justifies
vacating a conviction under subsection (2).
Here, the State presented [the officer’s] testimony that
his overhead lights and siren were activated, but there
was no testimony that his vehicle was otherwise marked.
The deputy [who observed the officer’s patrol car]
recounted that he observed the Lake Alfred patrol car.
But he did not say that he recognized it as such because
of its markings, or even that it was marked, or that he
even knew the car was from the Lake Alfred Police
Department before he stopped to assist. In the absence of
proof that the car was prominently marked, the evidence
was insufficient to support a conviction for felony fleeing
under section 316.1935(2).
Id. at 542. Of note, the mere fact that another officer observed the
patrol car was insufficient to create an inference that it was
appropriately marked as required under sections 316.1935(2)-(3).
See also Hanson v. State, 92 So. 3d 288 (Fla. 5th DCA 2012)
(finding evidence was legally insufficient to establish the requisite
“prominently displayed” agency insignia or markings); Erskine v.
State, 23 So. 3d 1207, 1209 (Fla. 3d DCA 2009) (finding “no
evidence that the police car involved in the chase in question had
agency insignia and other jurisdictional markings prominently
displayed”).
Our decision in Slack mirrors the situation here. Officer
Landy’s testimony established only that her vehicle was “marked”
with “decals” and the words “Police” and “Pensacola Police
Department.” But Slack held that generic statements (“marked”
and “decals”) fall short of what is legally-sufficient, and Gorsuch,
adopted by Slack, held that general jurisdictional markings such
as “City of Miami” are likewise insufficient. Slack specifically
warned that evidence of generalized markings on police vehicles
generally do not meet the statutory requirements because “not all
markings on law enforcement vehicles constitute agency insignia”
as the law requires. 30 So. 3d at 687. For the same reason, that
Officer Landy said it was “clearly a police vehicle” does not mean
it had the “agency insignia and other jurisdictional markings
prominently displayed,” as required. Agency insignia and
13
jurisdictional markings are separate and independent
requirements under the statute (and the jury instructions).
Nothing in the evidentiary record presented to the jury, however,
provides a basis to conclude that an agency insignia existed—let
alone that it was prominently displayed.
Like that faced by the trial judges here and in Slack, there is
a judicial temptation to presume that Officer Landy’s vehicle must
have had an agency insignia and that it was “prominently
displayed” on her vehicle. But patrol vehicles may have
jurisdictional markings (like the “City of Miami” seal in Gorsuch)
without the requisite agency insignia. The judicial role, as defined
in Slack and related cases, and as applied here, requires that this
evidentiary gap not be filled with an assumption or inference—
particularly when the assumption or inference may be incorrect
and the statutory requirement can be easily proven with a photo
of the agency insignia on the vehicle or via answers to questions
about the description, size, and placement of the agency insignia
and markings.
In its appellate brief, the State sidesteps the agency insignia
issue, saying the most important fact is that Ellis knew he was
fleeing a police car, which is insufficient under Slack and related
precedents to support a conviction under subsections (2) or (3). In
effect, the State’s position is aligned with a Fourth District case, 4
Dumais v. State, 40 So. 3d 850 (Fla. 4th DCA 2010), which
addressed whether testimony from an officer that his police vehicle
was “marked,” combined with the defendant knowing he was
fleeing a police officer, was sufficient to sustain a conviction under
subsection (2).
Viewing the officers’ references to “marked unit” and
“marked police vehicle” in the light most favorable to the
state, in conjunction with the defendant’s admission that
4 In another case, the court reversed a conviction, without
discussion, based on inadequate evidence of the required
markings. Sanner v. State, 63 So. 3d 934 (Fla. 4th DCA 2011) (“We
agree that the state failed to put on proof of this statutory element,
requiring reversal.”).
14
he knew he was fleeing from the police, we conclude that
competent, substantial evidence supports the defendant’s
conviction for aggravated fleeing and eluding.
The defendant relies upon three cases in which our sister
courts reversed convictions for aggravated fleeing and
eluding because the state did not prove the “agency
insignia and other jurisdictional markings”
element: Gorsuch v. State, 797 So. 2d 649, 651 (Fla. 3d
DCA 2001); Jackson v. State, 818 So. 2d 539, 542 (Fla. 2d
DCA 2002); and Slack v. State, 30 So. 3d 684, 687 (Fla.
1st DCA 2010). However, none of those cases involved a
defendant admitting that he knew he was fleeing from
the police, as occurred here. We find that fact significant.
The purpose of requiring the state to prove that “the law
enforcement officer was in an authorized law
enforcement patrol vehicle with agency insignia and
other jurisdictional markings prominently displayed on
the vehicle and with siren and lights activated” is to
guarantee that the defendant “[knew] he had been directed
to stop by a duly authorized law enforcement officer [and]
willfully refused or failed to stop.” Fla. Std. Jury Instr.
(Crim.) 28.7 (2007). The defendant’s admission here
provides that guarantee. We leave for another day our
consideration of whether reference to a “marked” vehicle,
standing alone, is sufficient to prove the “agency insignia
and other jurisdictional markings” element.
Id. at 852-53 (Fla. 4th DCA 2010) (emphasis added). A concurring
opinion, which rejected the approach taken in Gorsuch, Jackson,
and Slack, found that the officer’s testimony satisfied the statute. 5
5 Dumais, 40 So. 3d at 853 (Stevenson, J., concurring in
result) (“I would find that the testimony of [the officer] that (1) the
attempted stop occurred in Fort Lauderdale, (2) while he was on
duty as a police officer with the City of Fort Lauderdale Police
Department, (3) in uniform, (4) on road patrol assignment, and (5)
driving a ‘marked unit,’ was more than enough to satisfy the
statute’s requirement that the vehicle was ‘an authorized law
enforcement patrol vehicle, with agency insignia and other
jurisdictional markings prominently displayed.’”).
15
The italicized language from Dumais says that a fleeing
offender’s admission that he was pursued by law enforcement
officers negates the need to fulfill the statutory requirement of
“prominently displayed” agency insignia and markings. But that
is insufficient under the language of the statute and all other
caselaw. Such an admission is enough to meet the requirements of
subsection (1), which penalizes willfully-fleeing offenders who
know they have “been ordered to stop such vehicle by a duly
authorized law enforcement officer,” yet flee anyway.
§ 316.1935(1), Fla. Stat. But the Legislature created a different
type of crime in subsections (2) and (3), which add the requirement
that willful flight be from an “authorized law enforcement patrol
vehicle, with agency insignia and other jurisdictional markings
prominently displayed on the vehicle, with siren and lights
activated[.]” Id. §§ 316.1935(2) & (3). Offenders flee police officers
in many different ways, only one of which involves the
distinguishing element of these subsections: flight from a law
enforcement vehicle “with agency insignia and other jurisdictional
markings prominently displayed” on it. This language must be
viewed, as do the standard jury instructions, 6 as requiring
6See Fla. Std. Jury Instr. (Crim.) 28.8 (Fleeing To Elude A
Law Enforcement Officer; Siren and Lights Activated with High
Speed or Reckless Driving):
To prove the crime of Fleeing to Elude a Law
Enforcement Officer, the State must prove the following
four elements beyond a reasonable doubt:
1. (Defendant) was operating a vehicle upon a street or
highway in Florida.
2. (Defendant), knowing [he] [she] had been directed to
stop by a duly authorized law enforcement officer,
willfully fled in a vehicle in an attempt to elude a law
enforcement officer.
3. The law enforcement officer was in an authorized law
enforcement patrol vehicle with agency insignia and
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adequate proof of “prominently displayed” agency insignia and
markings as an independent element of the offense. That an
offender knew he was fleeing a law enforcement officer does not
satisfy this element; nor does evidence that a vehicle was marked,
absent additional evidence that the requisite agency insignia and
jurisdictional markings were prominently displayed. Ellis’s
testimony that he knew Officer Landy was a legitimate police
officer, and that his flight from her vehicle was willful, is no
substitute for agency insignia and jurisdictional markings in
accordance with the statute. 7 Affirming Ellis’s conviction under
subsection (3) is consistent with the Fourth District’s decision (and
concurrence) in Dumais, but it is contrary to our precedent in
Slack.
The State failed to meet its evidentiary burden to show that
Officer Landy’s patrol vehicle had “prominently displayed” “agency
insignia” as required by the statute, such that reversal and a
remand for entry of judgment for the lesser-included offense under
subsection (1) is proper. Slack, 30 So. 3d at 688.
_____________________________
other jurisdictional markings prominently displayed on
the vehicle and with siren and lights activated.
4. During the course of the fleeing or the attempt to elude,
(defendant) drove at high speed or in any manner
demonstrating a wanton disregard for the safety of
persons or property.
(Emphasis added).
7 Will. v. State, 24 A.3d 210, 234 (Md. Ct. Spec. App. 2011)
(“To the extent the State contends that the testimony of defense
witness, Sullivan, confirmed the State’s point that appellant knew
he was being pursued by a police vehicle, this is of no significance,
as we, like other Courts, observe that the State bears the burden
to prove all elements of an offense beyond a reasonable doubt.”)
(surveying the law of seven states, including Florida, on the issue
of markings on police vehicles).
17
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.
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