DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STEVEN CANNON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-2082
[April 14, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Timothy Bailey, Judge; L.T. Case No. 17005489CF10A.
Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
GERBER, J.
The defendant appeals from his convictions for burglary of a
conveyance with a battery, and leaving the scene of a crash. The defendant
raises five arguments: (1) the trial court fundamentally erred by not
instructing the jury on the battery element of the burglary of a conveyance
with a battery charge; (2) the trial court fundamentally erred in permitting
the responding officers to comment on the defendant’s silence by testifying
that, pre-arrest, he left a hospital without being interviewed, contrary to
their instructions; (3) the trial court reversibly erred in allowing one
responding officer, over the defendant’s hearsay objections, to testify about
the BOLO which he received from dispatch and the defendant’s driving
record which he obtained through the NCIC database; (4) the cumulative
effect of the prosecutor’s improper comments during closing argument
amounted to fundamental error; and (5) the trial court reversibly erred by
failing to inquire into the defendant’s request at sentencing to terminate
his private counsel’s representation.
We conclude only the defendant’s first argument requires reversal of
the defendant’s conviction and sentence for burglary of a conveyance with
a battery, and therefore we remand for a new trial on that charge.
Although the defendant’s second, third, and fourth arguments would not
require reversal individually or cumulatively, we will address those
arguments to the extent the issues underlying those arguments may recur
at the new trial. The defendant’s fifth argument lacks merit and does not
warrant further discussion. We affirm without discussion the defendant’s
conviction and sentence for leaving the scene of a crash.
We present this opinion in four sections:
1. The trial evidence;
2. The erroneous jury instruction;
3. The parties’ arguments on the erroneous jury instruction; and
4. Our review of the defendant’s first, second, third, and fourth
arguments.
1. The Trial Evidence
The alleged victim testified he was driving on I-95 when another car
struck his side mirror. The victim called 911, and followed the car which
hit him. The operator told the victim to pull over and wait for police, but
the victim continued following the car, which the defendant was driving.
The defendant exited the interstate, and eventually pulled into a
business parking lot. The victim used his car to block the defendant’s car
from driving away. The defendant, though, rammed into the victim’s car.
When the defendant tried to drive away, the victim continued to follow the
defendant. The victim described what happened next:
[The defendant] then throws his car in reverse and
smashes into the front of my car and then drives off a little
bit. Throws his car in reverse again and then rams into me a
fourth time.
He got out of his car. I put my car in park ….
He walks over to the front of my car ... yelling. He opens
my [driver’s side] car door ….
[H]e pulls me out of my car [by my shirt] and then threw a
punch. … I went and drove for his legs … and [got] on his back.
He was face down and I held him … until police arrived.
(emphasis added; state’s questions omitted). The victim clarified that the
defendant’s punch did not strike him.
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Also testifying was an independent witness from a nearby business who
verified the victim’s account of what occurred during the incident, with
one exception – the witness’s view was blocked when the victim was either
pulled from or exited his car:
[The defendant] was yanking on the [victim’s car] door
handle and even pulling on the door frame ….
And the door opens and some shrubbery got in the way of
my view as I’m strolling up but I could see an altercation is
going on like behind that. I can see that.
I continue walking. ... By the time I [got to their location] ...
[the defendant] was facing down on the ground. [The victim]
was on top of him.
(emphasis added; state’s questions omitted).
Also testifying were the responding officers. Over defense counsel’s
hearsay objections, one responding officer testified about the BOLO which
he received from dispatch and the defendant’s driving record which he
obtained from the NCIC database.
That responding officer further testified, without defense objection, the
police did not arrest the defendant on the incident date, because “we gave
him command to stay inside the hospital, get treated. However, when we
went over there to arrest him or to even interview him for what happened
that day he left the hospital. He ran away.” (emphasis added).
The latter testimony violated the trial court’s pre-trial motion in limine
ruling that the responding officers could testify the defendant had left the
hospital against their instructions, but could not testify the officers had
requested the defendant to be interviewed. However, for whatever reason,
defense counsel did not object when the ruling was violated.
The responding officer also testified that six days after the incident, he
arrested the defendant at a tow yard where the defendant had attempted
to retrieve his car. The responding officer further testified, without defense
objection, that he issued the defendant a citation for driving while license
revoked, open container, and six other infractions arising from the incident
six days earlier.
3
A supervising officer who responded to the scene also violated the trial
court’s pre-trial motion in limine ruling by testifying:
[P]rior to going to the hospital I did advise [the defendant]
that, okay, you got your injuries, you are injured, you are
going to the hospital, you getting take[n] care of comes first.
Stay there, I will be there shortly or a trooper or somebody
is going to be there shortly.
We need to get a statement, we need further investigation.
When I arrived at the hospital when I walked in ... I
inquired where the defendant was and the doctor responded
... [the defendant] took off as soon as he got here.
(emphasis added). Again, however, defense counsel did not object.
After the state presented its remaining evidence and rested, defense
counsel moved for a judgment of acquittal. Defense counsel argued:
I don’t believe there is a prima facie case as to the main
count of burglary [of a conveyance with a] battery in light of
the testimony from the victim, himself, who basically said that
he was able to successfully dodge the defendant’s attempted
punch. So I don’t believe there is enough evidence to go to a
jury for a burglary [of a conveyance with a] battery ….
The state responded:
[T]he burglary [of a conveyance with a] battery in this case
that the state is moving forward with is when the defendant
went into the victim’s vehicle and pulled him out.
So, we are not going based on the fact that [the defendant]
missed a punch.
The trial court denied the defendant’s motion for judgment of acquittal.
The defendant rested without presenting any evidence.
2. The Erroneous Jury Instruction
The trial court proceeded to a charge conference. As to the burglary of
a conveyance with a battery charge, the state’s proposed verdict form
4
asked the jury to determine if the defendant was “Guilty ... as charged in
the Information” or “Not Guilty.” The information, a copy of which the jury
would receive, alleged the defendant “did unlawfully enter or remain in a
conveyance, to-wit: a vehicle, property of [the victim] with intent to commit
the offense of Battery therein, and in the course thereof, did commit a
battery upon [the victim] by actually and intentionally touching or striking
[the victim] against the will of [the victim], contrary to F.S. 810.02(1) and
F.S. 810.02(2)(a) ....” (emphasis added).
The trial transcript also indicates the state’s original proposed jury
instruction for this charge followed Florida Standard Jury Instruction
(Criminal) 13.1 for Burglary, and included the standard instruction’s
section 810.02(2)(a) battery enhancement:
To prove the crime of Burglary (Conveyance/Battery), the
State must prove the following two elements beyond a
reasonable doubt:
l. [The defendant] entered a conveyance owned by or in the
possession of [the victim].
2. At the time of entering the conveyance, [the defendant]
had the intent to commit Battery in that conveyance.
….
Burglary enhancements:
....
With a battery.
If you find [the defendant] guilty of burglary, you must also
determine if the State has proved beyond a reasonable doubt
whether, in the course of committing the burglary, [the
defendant] battered any person. A battery is an actual and
intentional touching or striking of another person against
that person’s will or the intentional causing of bodily
harm to another person.
Fla. Std. Jury Instr. (Crim.) 13.1 (emphases added).
However, the trial transcript and the record indicate standard jury
instruction 13.1’s section 810.02(2)(a) battery enhancement inadvertently
became omitted from the instructions’ final written version. The trial
5
transcript indicates the reason may have been that the state’s original
proposed jury instruction for the lesser included offense of simple burglary
of a conveyance inadvertently included the section 810.02(2)(a) battery
enhancement. The trial court instructed the section 810.02(2)(a) battery
enhancement be removed from the lesser included simple burglary
instruction. However, the instructions’ final written version indicates the
section 810.02(2)(a) battery enhancement was omitted from both the
simple burglary instruction and the burglary of a conveyance with a battery
instruction.
Regardless of the reason for inadvertently omitting the section
810.02(2)(a) battery enhancement from the burglary of a conveyance with
a battery instruction, defense counsel failed to object to the instructions’
final written version when presented or when read to the jury.
The parties then made their closing arguments, with both sides
agreeing the alleged battery in the burglary of a conveyance with a battery
charge referred to the defendant allegedly pulling the victim from his car.
The parties’ closing arguments disputed whether the state proved the
battery element. The state also told the jury, consistent with the standard
jury instruction, that “Battery is defined as an actual or intentional
touching or striking of another person against that person’s will or the
intentional causing of bodily harm.”
The trial court gave the jury a copy of the instructions’ final written
version containing the incomplete burglary of a conveyance with a battery
instruction. On that charge, the jury found the defendant “Guilty … as
charged in the Information.” After sentencing, this appeal followed.
3. The Parties’ Arguments on the Erroneous Jury Instruction
The defendant concedes his trial counsel failed to object to the
incomplete instruction. However, the defendant argues:
The trial court committed fundamental error when it gave
a deficient jury instruction on the charge of burglary of a
conveyance with a battery. The instruction permitted the jury
to convict [the defendant] if it found that he had an intent to
commit a battery when he entered [the victim’s] car. The
problem is that the offense of burglary with a battery requires
the actual commission of a battery and not the mere intent to
do so. The actual commission of a battery is an essential
element of the offense. The instruction omitted this element and
failed to provide a definition of battery. Because the evidence
6
concerning whether [the defendant] committed the battery
was in dispute this deficient instruction amounted to
fundamental error that mandates reversal.
(emphases added).
The state responds:
[F]ailure to define the underlying offense when instructing
a jury on burglary does not constitute fundamental reversible
error. ... What constitutes a battery was not at issue. The
jury was given a copy of the Information which clearly alleged
[the defendant] “did commit a battery upon [the victim] by
actually and intentionally touching or striking [the victim]
against the will of [the victim].” The jury returned a verdict of
Guilty of Burglary (Conveyance/Battery) as charged in the
Information. Under the facts of this case [the defendant] has
not demonstrated fundamental error.
….
[Further, the defendant] did not object or request that the
battery instruction be read to the jury.
The defendant replies:
The fact that the jury was provided with a copy of the
information, which set forth the elements of battery, does not
cure the insufficient instruction. This is evident by the many
references in the instructions that the law to be applied is
contained in the instructions and not the arguments of
counsel or from other sources. If the jury was confused by
the information, it would have simply read the rules for
deliberation and applied the law as contained in the jury
instructions and not the information.
....
Furthermore … [d]efense counsel did not affirmatively
agree to omit the battery section from the instruction on the
burglary of a conveyance with a battery.
4. Our Review
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A. The trial court fundamentally erred by not instructing the jury
on the section 810.02(2)(a) battery enhancement.
Applying de novo review, we agree with the defendant that the trial
court fundamentally erred by not instructing the jury on the section
810.02(2)(a) battery enhancement. See Elliot v. State,
49 So. 3d 269, 270
(Fla. 1st DCA 2010) (an appellate court “reviews the issue of unpreserved
fundamental error under the de novo standard”).
Jury instructions “are subject to the contemporaneous objection rule,
and, absent an objection at trial, can be raised on appeal only if
fundamental error occurred.” Martinez v. State,
981 So. 2d 449, 455 (Fla.
2008). “The giving of a misleading instruction constitutes both
fundamental and reversible error.” Doyle v. State,
483 So. 2d 89, 90 (Fla.
4th DCA 1986). As our sister court has explained:
A criminal defendant has a fundamental right to have the
trial court correctly and intelligently instruct the jury on the
essential and material elements of the crime charged. Battle v.
State,
911 So. 2d 85, 88–89 (Fla. 2005). However, if the trial
court fails to instruct on all the elements of the offense and
the defendant does not object, as was the case here, the
omission can be raised on appeal only where it constitutes
fundamental error. See
id. at 89. Fundamental error occurs
when the omission is pertinent or material to what the jury must
consider in order to convict; the failure to instruct on an
element of the crime over which the record reflects there was
no dispute does not constitute fundamental error.
Id.
Wolfork v. State,
992 So. 2d 907, 909 (Fla. 2d DCA 2008) (emphases
added).
Here, the battery element was in dispute and was pertinent to what the
jury had to consider in order to convict the defendant of burglary of a
conveyance with a battery. As the state argued, the alleged battery was
the defendant’s alleged grabbing the victim’s shirt and yanking him out of
his car — an act which the victim said occurred, but which the
independent witness could not verify because his view was blocked at that
moment. Defense counsel’s closing argument emphasized the lack of
independent verification:
[T]he independent witness specifically said that he doesn’t
know whether or not the [victim] was pulled out of the car or
whether or not he got out of the car willingly.
8
….
So if you are putting all your weight into ... this
independent witness, you know, he didn’t see that part.
Further, the incomplete jury instruction allowed the jury to convict the
defendant of burglary of a conveyance with a battery even if the jury found
the defendant merely intended to commit a battery when he entered the
victim’s vehicle, but did not actually commit a battery. If the defendant
had only intended to commit a battery, his act would not legally constitute
burglary of a conveyance with a battery, but would constitute the lesser
included offense of simple burglary of a conveyance. See Hartley v. State,
27 So. 3d 233, 233 (Fla. 2d DCA 2010) (“Simple burglary is a necessarily
lesser-included offense of burglary with a battery.”); § 810.02(1)(b), Fla.
Stat. (2017).
We distinguish the state’s cited case of Reed v. State,
603 So. 2d 69
(Fla. 4th DCA 1992), where we held, “Failure to define the underlying
offense when instructing a jury on burglary does not constitute
fundamental reversible error.”
Id. at 71. In Reed, the defendant was
charged with simple burglary.
Id. Here, though, the defendant was
charged with a combined offense – burglary with a battery. See Bledsoe v.
State,
764 So. 2d 927, 929 (Fla. 2d DCA 2000) (“‘Burglary with a battery’
is a legislative combination of two separate common law crimes.”).
Also lacking merit is the state’s suggestion that the defendant waived
fundamental error by affirmatively agreeing to the incomplete instruction.
See Universal Ins. Co. of N. Am. v. Warfel,
82 So. 3d 47, 65 (Fla. 2012)
(“Fundamental error is ... waived where defense counsel affirmatively
agrees to an improper instruction.”) (emphasis added).
Our sister court has held, and we agree, that a difference exists between
“affirmatively agreeing” to an improper instruction and “unknowingly
acquiescing” to an improper instruction. See Roberts v. State,
694 So. 2d
825, 826 (Fla. 2d DCA 1997) (“Since defense counsel did not affirmatively
agree to the omission of the [definitions of justifiable and excusable
homicide when instructing on attempted manslaughter], but only
acquiesced in the instructions as given, the [waiver] exception does not
apply.”). Here, as the defendant’s reply brief argues:
Defense counsel did not affirmatively agree to omit the
battery section from the instruction on the burglary of a
conveyance with a battery. While the State is correct that
9
defense counsel did not object to the court removing the battery
instruction from the lesser included offense instruction on
simple burglary, this has no bearing on the charged offense.
Moreover, this would be correct as the battery instruction
should not be included in the simple burglary instruction as
it is not an element of the offense.
(emphasis added).
Indeed, the record does not in any way indicate defense counsel’s
agreement to delete the section 810.02(2)(a) battery enhancement from the
original proposed burglary of a conveyance with a battery instruction. See
Brown v. State,
909 So. 2d 975, 976 (Fla. 2d DCA 2005) (“Trial counsel did
not object and, as the record ... reveals, unknowingly acquiesced to a
fundamentally flawed jury instruction.”).
Further, while the state defined battery during its closing argument,
the trial court also properly instructed the jury from the prepared written
instructions: “Number one, you must follow the law as it is set out in these
instructions that I’m reading to you.”; and “Please remember [that] what the
lawyers say [in their closing arguments] is not evidence or your instructions
on the law.” (emphasis added).
Thus, based on the foregoing, the erroneous jury instruction
constituted fundamental error, and we must reverse and remand for a new
trial on the burglary of a conveyance with a battery charge.
B. Defense counsel waived any error in permitting the responding
officers to comment on the defendant’s silence.
The defendant argues the trial court erred in permitting the responding
officers to comment on the defendant’s silence by testifying that, pre-
arrest, he left the hospital without being interviewed, contrary to their
instructions.
The state summarizes its response as follows:
[T]he trial court ruled on the motion in limine that the State
could elicit testimony [the defendant] was told to wait at the
hospital for law enforcement and that he left, but the State
could not go into [the defendant] not wanting to talk with law
enforcement. The prosecutor complied with the trial court’s
ruling and only told the jury in opening statement and closing
argument that [the defendant] did not remain at the hospital
10
as instructed. … Any comment [by the responding officers]
about wanting to obtain a statement from [the defendant] was
unobjected to.
(emphasis added).
We agree with the state’s argument that defense counsel waived any
violation of the court’s order on the motion in limine by not objecting to:
(1) the responding officer’s testimony about wanting to interview the
defendant before he left the hospital, or (2) the supervising officer’s
testimony about having told the defendant that the police wanted to get
his statement before he left the hospital. See, e.g., Rhue v. State,
693 So.
2d 567, 569 (Fla. 2d DCA 1996) (“Trial counsel did not ... renew the motion
in limine or otherwise object at the time [the officers] testified … thus, the
objection was not preserved.”).
Because the defendant’s objection was not preserved, “our review is for
fundamental error.” Urbaniak v. State,
241 So. 3d 963, 966 (Fla. 2d DCA
2018). “Fundamental error is error that reaches 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.” Gentry v. State,
300
So. 3d 233, 237 (Fla. 4th DCA 2020) (citation and internal quotation marks
omitted).
We have held that “[w]hile an improper comment on a defendant’s right
to remain silent may be constitutional error, it is not considered
fundamental error.” Gutierrez v. State,
731 So. 2d 94, 95 (Fla. 4th DCA
1999); see also Urbaniak, 241 So. 3d at 966 (“[T]he record does not reflect
that the State relied on [the defendant’s] silence as substantive evidence
of his guilt. … Because the only reference to [the defendant’s] silence was
the isolated testimony of the deputy, we cannot conclude that the improper
comment rose to the level of fundamental error in this case.”). Thus, we
would not have reversed for a new trial on this argument on the basis of
fundamental error.
However, we nevertheless recognize the trial court’s ruling on the
defendant’s pre-trial motion in limine was correct. See, e.g., State v.
Horwitz,
191 So. 3d 429, 431 (Fla. 2016) (when a defendant does not testify
at trial, use of the defendant’s pre-arrest silence “as substantive evidence
of guilt violates the defendant’s right against self-incrimination under the
Florida Constitution”). Thus, in the new trial on the burglary of a
conveyance with a battery charge, the state and its witnesses must abide
by the trial court’s ruling, but if the ruling is violated, defense counsel
11
must renew the motion in limine or otherwise object to preserve the issue
for appeal. Rhue,
693 So. 2d at 569.
C. The trial court committed harmless error in allowing the
responding officer to present hearsay evidence.
The state does not contest the defendant’s argument that the trial court
erred in allowing the responding officer, over the defendant’s hearsay
objections, to testify about the BOLO which he received from dispatch and
the defendant’s driving record which he obtained through the NCIC
database. Instead, the state responds that any error was harmless beyond
a reasonable doubt because the evidence was cumulative to the victim’s
description of the incident and the responding officer’s unobjected-to
testimony that he cited the defendant for driving while license revoked.
Applying de novo review, we conclude the admission of the hearsay
evidence was error, but we agree with the state that the error was
harmless. See Browne v. State,
132 So. 3d 312, 316 (Fla. 4th DCA 2014)
(“The standard of review for admissibility of evidence is abuse of discretion,
limited by the rules of evidence. ... Thus, whether evidence is admissible
... under an exception to the hearsay rule is a question of law ... subject to
the de novo standard of review.”) (citations, quotation marks, and brackets
omitted).
Section 90.801(1)(c), Florida Statutes (2019), defines “hearsay” as “a
statement, other than one made by the declarant while testifying at the
trial ... offered in evidence to prove the truth of the matter asserted.”
“[T]he contents of a BOLO are generally inadmissible in that they
contain incriminating hearsay details unnecessary to establish a logical
sequence of events.” Tillman v. State,
964 So. 2d 785, 788 (Fla. 4th DCA
2007). However, as our sister court has explained: “[W]hen as here, the
victim testifies to the same information during the trial, courts have often
considered the admission of the BOLO’s contents cumulative in nature,
and, therefore, harmless.” English v. State,
43 So. 3d 871, 872 (Fla. 5th
DCA 2010) (citation omitted); see also Presley v. State,
839 So. 2d 813,
813–14 (Fla. 4th DCA 2003) (an officer’s testimony recounting a BOLO was
harmless where the witness who called in the description testified at trial
about her description); Livingston v. State,
219 So. 3d 911, 916 (Fla. 2d
DCA 2017) (an officer’s erroneously admitted BOLO testimony was
harmless considering the victim’s trial testimony).
The same is true in the instant case. While admission of the hearsay
was error, the responding officer’s testimony about the BOLO was
12
cumulative to the victim’s testimony describing the incident. Likewise, the
responding officer’s testimony that the NCIC database showed the
defendant’s license was revoked was cumulative to the officer’s
unobjected-to testimony that he cited the defendant for driving while
license revoked.
Again, we have ruled on this argument to provide guidance to the trial
court if the hearsay testimony underlying this argument recurs at the new
trial on the burglary of a conveyance with a battery charge.
D. The prosecutor’s comments during closing argument did not
amount to fundamental error.
The defendant contends the prosecutor’s closing argument contained
two sets of allegedly improper comments, but concedes defense counsel
did not object when the prosecutor made the comments.
First, the defendant contends the prosecutor improperly presented
facts not in evidence by stating that when the responding officer arrested
the defendant six days after the incident, the responding officer also cited
the defendant for having committed driving while license revoked and open
container on the day of the arrest.
Second, the defendant contends the prosecutor improperly shifted the
state’s burden of proof to the defense after referencing Florida Standard
Jury Instruction (Criminal) 3.9, “Weighing the Evidence,” by arguing:
Was the witness honest and straight forward in answering
the attorney’s questions. The witnesses got up here and they
spoke about the facts and what had occurred. You never saw
them testifying to something that didn’t occur. Defense
Counsel never got up here and impeached them. He never said,
well, you said this, it is different, it is inconsistent. That never
happened.
....
Did the witness at some other time make a statement
inconsistent with the testimony given from court. Just like I
said, nobody was ever impeached. The officers were never
impeached, the civilians, independent witness, never
impeached, the victim, never impeached. They never gave a
statement inconsistent with something that they testified to in
court.
13
(emphasis added).
Regarding the prosecutor’s first set of comments, the state concedes
the responding officer had not testified he had given the defendant two
additional citations for infractions committed on the day when the
defendant was arrested. According to the state, “It appears that the
prosecutor misspoke.” However, we agree with the state that the
prosecutor’s misstatement did not rise to the level of fundamental error,
as the jury already was aware that the defendant’s license was revoked.
See Merck v. State,
975 So. 2d 1054, 1061 (Fla. 2007) (“Closing argument
is an opportunity for counsel to review the evidence and to explicate those
inferences which may reasonably be drawn from the evidence. …
Unobjected-to comments are grounds for reversal only if they rise to the
level of fundamental error.”).
As for the prosecutor’s unobjected-to “open container” comment, we
agree with the state that the jury already was aware the defendant had
been cited for “open container” on the incident date. Referring to a non-
existent second “open container” citation, though improper, did not rise to
the level of fundamental error. See Gentry, 300 So. 3d at 237.
We trust that, during the new trial on the burglary of a conveyance with
a battery charge, the prosecutor shall not repeat the first set of comments
unless the evidence supports those comments.
Regarding the prosecutor’s second set of comments, we agree with the
state that the comments did not refer to the defendant’s failure to produce
evidence. See, e.g., Jackson v. State,
575 So. 2d 181, 188 (Fla. 1991)
(“[T]he state cannot comment on a defendant’s failure to produce evidence
to refute an element of the crime, because doing so could erroneously lead
the jury to believe that the defendant carried the burden of introducing
evidence.”). Instead, consistent with standard instruction 3.9, the
prosecutor’s comments merely asked the jury to consider whether the
state’s witnesses, during defense counsel’s cross-examinations, were
honest and straightforward, and had not made a statement inconsistent
with the testimony given from court, i.e., had not been impeached. Thus,
the prosecutor’s second set of comments were proper and did not
constitute burden shifting.
Conclusion
Based on the foregoing, we reverse the defendant’s conviction and
sentence on the burglary of a conveyance with a battery charge, and
14
remand for a new trial on that charge, consistent with the rulings in this
opinion. We affirm the defendant’s conviction and sentence for leaving the
scene of a crash without further discussion.
Affirmed as to leaving the scene of a crash conviction and sentence;
burglary of a conveyance with a battery conviction and sentence reversed
and remanded for a new trial on that charge.
MAY and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
15
