PERCY JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Percy Johnson appealed his convictions for burglary, petit theft, and sexual battery following a jury verdict. The Third District Court of Appeal affirmed the convictions, finding sufficient evidence to support the jury's verdict and no trial error in the court's evidentiary rulings.
The trial court did not err in denying the motion for judgment of acquittal because the state presented sufficient circumstantial evidence for the jury to consider. The trial court also properly denied the motion for mistrial because the prosecutor's comment was based on the sister's unobjected-to testimony that she did not know the defendant's whereabouts at the time of the offenses.
[1] A trial court does not err in denying a motion for judgment of acquittal when the state presents sufficient circumstantial evidence to send the case to the jury.
[2] A prosecutor's comment during closing argument that a defendant had "no alibi" is proper if it is based on unobjected-to testimony presented to the jury indicating the de…
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Join FLexlaw to unlock all legal intelligence“The state presented sufficient circumstantial evidence to send this case to the jury.”
Establishes the standard for denying a motion for judgment of acquittal when circumstantial evidence supports the verdict.
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Join FLexlaw to unlock all legal intelligenceJohnson was charged with burglary of a structure, petit theft, and sexual battery with slight force. At trial, the state presented circumstantial evid…
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PER CURIAM.
This is an appeal by the defendant Percy Johnson from judgments of conviction and sentences for burglary of a structure, petit theft, and sexual battery with slight force, based on an adverse jury verdict. We affirm based on the following briefly stated legal analysis.
First, the trial court did not err in denying the defendant’s motion for judgment of acquittal at trial. The state presented sufficient circumstantial evidence to send this case to the jury. See Heiney v. State, 447 So. 2d 210, 212 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); Avery v. State, 505 So. 2d 596, 597 (Fla. 1st DCA 1987); L.S. v. State, 446 So. 2d 1148, 1150 (Fla. 3d DCA 1984), aff'd, 464 So. 2d 1195 (Fla.1985); Sorey v. State, 419 So. 2d 810, 814 (Fla. 3d DCA 1982), rev. denied, 476 So. 2d 675 (Fla.1985).
Second, the trial court properly denied the defendant’s motion for mistrial based on the prosecutor’s comment during closing argument that the defendant’s sister didn’t know where the defendant was at the time of the charged offenses, indicating “no alibi.” This is so because the comment was based on the aforesaid sister’s testimony presented, without objection, to the jury that the sister, in fact, did not know where the defendant was at the time of the charged offenses. Stated differently, the comment was proper because it was based on unobjected-to testimony presented to the jury. See White v. State, 377 So. 2d 1149, 1150 (Fla.1979), cert. denied, 449 U.S. 845, 101 S.Ct. 129, 66 L.Ed.2d 54 (1980); Smiley v. State, 395 So. 2d 235, 237 (Fla. 1st DCA 1981); Wilson v. State, 305 So. 2d 50, 52 (Fla. 3d DCA 1974); Newton v. State, 272 So. 2d 15, 18 (Fla. 3d DCA), cert. denied, 278 So. 2d 627 (Fla.1973), cert. denied, 414 U.S. 1157, 94 S.Ct. 914, 39 L.Ed.2d 109 (1974); Roach v. State, 241 So. 2d 742, 742 (Fla. 3d DCA 1970). This latter factor distinguishes this case, in our view, from Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984) and Bayshore v. State, 437 So. 2d 198 (Fla. 3d DCA 1983), relied on by the defendant.
The final judgments of conviction and sentences under review are, therefore,
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (21 total)
- Heiney v. State, 447 So. 2d 210 (Fla. 1984)
- White v. State, 377 So. 2d 1149 (Fla. 1979)
- Garrison v. Hudson, 469 U.S. 920 (U.S. 1984)
- Perry v. Lockhart, 469 U.S. 920 (U.S. 1984)
- Sorey v. State, 419 So. 2d 810 (Fla. 3d DCA 1982)
- L.S. v. State, 464 So. 2d 1195 (Fla. 1985)
- Hudson v. Maryland, 449 U.S. 845 (U.S. 1980)
- Brown v. Mitchell, 449 U.S. 845 (U.S. 1980)
- Smiley v. State, 395 So. 2d 235 (Fla. 1st DCA 1981)
- Jefferson Lane v. State, 459 So. 2d 1145 (Fla. 3d DCA 1984)