HUMBERTO HERNANDEZ v. THE STATE OF FLORIDA

Third District Court of Appeal
State of Florida
Opinion filed October 6, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0381
Lower Tribunal Nos. 18-879-A-P, 19-0015-A-P
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Humberto Hernandez,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the County Court for Monroe County, Sharon I.
Hamilton, Judge.
The Upson Law Group, P.L., and Keith W. Upson (Naples), for
appellant.
Ashley Moody, Attorney General, and David Llanes, Assistant Attorney
General; Dennis W. Ward, State Attorney, and Paul J. Vargo, Assistant State
Attorney, for appellee.
Before EMAS, LINDSEY, and GORDO, JJ.
LINDSEY, J.
Appellant Humberto Hernandez appeals a judgment and sentence
entered after a jury found him guilty of three counts of possessing undersized
snapper and one count of possessing more than ten snapper in violation of
Florida Administrative Code Rules 68B-14.0035(7) and 68B-14.0036(1)(a).
On appeal, Hernandez argues the trial court erred in denying his motion for
acquittal because the State failed to present sufficient evidence to establish
his guilt.
During trial, the court excluded photographs of the snapper at issue
because they did not comply with section 379.3381, Florida Statutes (2021),
which permits the State to admit into evidence photographs of illegally taken
fish and wildlife. 1 After the State’s case-in-chief, Hernandez moved for
1
Section 379.3381 provides that:
In any prosecution for a violation of this chapter, any
other chapter, or rules of the commission, a
photograph of illegally taken wildlife, freshwater fish,
or saltwater fish may be deemed competent
evidence of such property and may be admissible in
the prosecution to the same extent as if such wildlife,
freshwater fish, or saltwater fish were introduced as
evidence. Such photograph shall bear a written
description of the wildlife, freshwater fish, or
saltwater fish alleged to have been illegally taken, the
name of the violator, the location where the alleged
illegal taking occurred, the name of the investigating
law enforcement officer, the date the photograph was
taken, and the name of the photographer. Such
writing shall be made under oath by the investigating
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judgment of acquittal on all four counts. The court denied the motion.
Hernandez timely appealed. We review a trial court’s ruling on a motion for
judgment of acquittal de novo. Walker v. State, 154 So. 3d 448, 450 (Fla. 3d
DCA 2014).
The only issue on appeal is whether the State introduced sufficient
evidence of guilt. At trial, the State relied solely on the testimony of one of
the officers, who testified as follows:
Q. Were you able to measure the fish?
A. I was. I measured every single fish that I was
given to me from the vessel.
Q. Okay. And what’s the legal size limit of yellowtail
snapper?
A. Yellowtail has to be 12 inches total length . . . .
Q. And when you measured those two yellowtail,
were they of length?
A. They were not. They were undersized, grossly
undersized.
Q. The 18 mutton snapper you found, talk to us
about those.
law enforcement officer, and the photograph shall be
identified by the signature of the photographer.
On appeal, the State does not challenge this ruling.
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A. Those, they were grossly undersized also. They
were very tiny. They were definitely under eighteen
inches. They had to be eighteen inches in total
length and they were not.
Q. And what about the lane snapper?
A. Lane snappers, they only have to be eight
inches, so relatively small, but every one of those
was undersized also.
Q. In the State of Florida how many snapper are
you allowed to catch?
A. So there’s an aggregate bag. So there’s a
combination there of snappers. You can have some
yellowtail, some mangrove, some muttons. But it’s
a combination there of ten -- or ten snappers total.
It’s an aggregate bag.
Q. You can only have ten?
A. Ten.
Hernandez argues that the best evidence rule required that either the
physical snapper or photographs of the snapper be admitted into evidence
under G.E.G. v. State, 417 So. 2d 975 (Fla. 1982). The best evidence rule
“requires that when the contents of a writing, recording or photograph are
being proved, the original must be offered unless a statutory excuse for the
lack of an original exists.” Charles W. Ehrhardt, 1 Fla. Prac., Evidence §
952.1 (2021 ed.); see also § 90.954, Fla. Stat. (2021). It “does not require
the introduction of written or physical evidence whenever it is available in
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preference to oral testimony.” Ehrhardt, supra, § 952.1. In Florida, the text
of the best evidence rule “only applies to writings, recordings, and
photographs.” G.E.G., 417 So. 2d at 977.
In G.E.G., however, our highest court applied the “spirit” of the best
evidence rule to controlled substances, holding “that when a defendant is
charged with possession of a controlled substance, that substance, if
available, must be introduced into evidence. . . .” Id. However, G.E.G. “has
not been extended beyond controlled substances” to other forms of physical
evidence, Ehrhardt, supra, § 952.1, and we decline to do so here.
Hernandez also relies on § 379.3381, which permits photographic
evidence to be used as competent evidence in prosecutions under Florida’s
Fish and Wildlife Statute, provided the photographs are properly
authenticated. The State focuses on the permissive language in the statute,
arguing that: “This statute states that pictures ‘may be’ substituted in favor
of bringing dead wildlife into court and that doing so is competent evidence.”
On its face, the language used in the statute is permissive. It does not
exclude testimony alone. Therefore, we decline to do so here.
Affirmed.
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