ANDREW KENT

v.

STATE OF FLORIDA

LINDSEY, J. Andrew Kent timely appeals his conviction and sentence for possession of cocaine, possession of paraphernalia, and giving a false name upon being arrested or lawfully detained.¹ Kent raises three issues on appeal. He contends the trial court erred in denying his: motion to suppress stop, his motion to sever charges, and his motion for mistrial.² Because we find no reversible error in the trial court's rulings, we affirm.

I. PROCEDURAL BACKGROUND

a. The Traffic Stop

On the night of May 11, 2022, an officer witnessed Kent's car come toward a stop sign and stop for less than half a second. The brake lights activated and then turned off as quickly as they had activated. The officer drove after Kent and conducted a traffic stop.

The officer observed that Kent appeared to be nervous, was shaking, and avoiding eye contact. Upon questioning, Kent informed the officer that he did not have a license with him. The officer asked Kent to step out of the vehicle and asked him to whom the car belonged. Kent replied that the car belonged to his brother “Andy.” Kent was asked for his name and date of

Kent continued to act nervous, shake, and avoid eye contact. The officer asked to search Kent's vehicle. Kent consented. The officer found a clear plastic baggie with a white powdery substance in the center console of the vehicle in immediate reach of the driver's seat. The officer field tested the substance. It tested positive for cocaine. The baggie was sealed with evidence tape in a ziploc bag, documented, and placed in a locker to be sent to the Florida Department of Law Enforcement (“FDLE”) for lab testing.³

Kent was handcuffed and read his Miranda rights.⁴ Kent stated that he understood and that he wished to talk to the officer. As the officer was searching Kent's wallet for additional narcotics, Kent stated that he lied about his identity, that he was actually "Andy,” that the white baggie was his, that the car belonged to him, that he did not have a license, and that his actual birthdate was January 26, 1984. On the way to jail, Kent made several other

Before trial, Kent filed a motion to suppress the stop arguing that the officer did not have probable cause to believe Kent committed a traffic infraction. In support, Kent argued the officer did not actually see whether Kent stopped at the sign, only that he observed Kent's brake lights light up for half a second. Kent further argued the officer was too far from Kent's vehicle (100 to 150 yards) to see anything and there was no indication that the area was well lit. The trial court denied the motion finding the officer had probable cause to believe a traffic infraction occurred based on his testimony that Kent's car could not have come to a full stop by braking for only half a second.

c. Motion to Sever Charges

Kent also filed a motion to sever charges seeking to sever the possession charges from the driving while license suspended (“DWLS”) and false name charges. The trial court denied the motion reasoning that the evidence that Kent gave a false name during the stop was admissible—with regard to the possession charges—to show consciousness of guilt. d. Judgment of Acquittal and Motion for Mistrial

At trial, Kent moved for a judgment of acquittal as to the DWLS charge because there was no evidence presented of his driving record. The State conceded because the State of Michigan had not provided Kent's driving record, despite the State's request. The trial court granted the judgment of acquittal and Kent immediately moved for a mistrial arguing the State went to trial knowing they did not have the documents necessary—his Michigan driving record—to prove an element of the DWLS charge. The trial court denied the motion, reasoning the State had a good faith basis to believe Kent's license was suspended based on his own comments admitting same during the stop.

The trial court instructed the jury to consider the evidence for each crime charged, separately, and that “[a] finding of guilty or not guilty as to one crime must not affect your verdict as to the other crimes charged.” The jury found Kent guilty on all three remaining charges: possession of cocaine; possession of drug paraphernalia; and giving a false name upon being arrested or lawfully detained.

e. Instant Appeal

Kent has three arguments on appeal. First, he contends the trial court erred by denying the motion to suppress the stop of Kent's vehicle because there was no competent, substantial evidence to establish a legal basis to stop the vehicle. Second, Kent alleges the trial court erred by denying Kent's motion to sever the possession of cocaine and drug paraphernalia charges from the false name and DWLS charges. Kent alleges severance was necessary to promote a fair determination of Kent's guilt or innocence. Third, Kent argues the trial court erred in denying the motion for mistrial, alleging prosecutorial misconduct for proceeding to trial with the DWLS charge despite not having the required driving records.

II. ANALYSIS

a. Trial Court's Denial of Motion to Suppress was not Error

"In reviewing a trial court's ruling on a motion to suppress, the appellate courts defer to the trial court's factual findings so long as the findings are supported by competent, substantial evidence, and review de novo the legal question of whether there was probable cause given the totality of the factual circumstances.” State v. Hankerson, 65 So. 3d 502, 506 (Fla. 2011).

Running a stop sign provides probable cause for a traffic stop. See Holland v. State, 696 So. 2d 757, 759 (Fla. 1997) (finding probable cause for traffic stop exists when vehicle fails to stop at stop sign); see also § 316.123(2)(a), Fla. Stat. (2022) (“[E]very driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop . . . before entering the intersection."). But Kent argues there was no competent, substantial evidence he ran the stop sign because the officer did not see Kent commit the infraction of failing to stop at the stop sign and instead relied on the length of time the brake lights were activated as the basis for the stop.

Here, the officer testified he saw Kent's car approach the stop sign and his brake lights come on for less than half a second and then "turned off as quick as they activated.” Therefore, the officer testified he knew Kent failed to come to a complete stop because “it would take more than approximately half a second to actually have your vehicle come to a complete stop.”

No Florida case directly answers the question whether the observation of brake lights is sufficient evidence to provide probable cause for a violation for running a stop sign. Like the trial court, we answer that question in the affirmative. We emphasize herein that we must consider the standard of review we are bound to apply. In Hedvall v. State, we explained that “[a] ruling on a motion to suppress is presumed correct, and the appellate court 'must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling." 283 So. 3d 901, 919 (Fla. 3d DCA 2009) (citations omitted). Consequently, the officer's observation that Kent's brake lights were illuminated for only half a second is an objective⁵ basis to believe the vehicle did not come to a complete stop as required by section 316.123. The reasonable inference from this evidence is that the brief illumination of the brake lights suggests Kent's vehicle merely slowed—a rolling stop—rather than coming to a "complete cessation from movement" at the stop sign. § 316.003(84), Fla. Stat. (2022) (defining “stop” for purposes of § 316.123(2)(a), Fla. Stat.); accord Noto v. State, 42 So. 3d 814, 817 (Fla. 4th DCA 2010) (emphasis added) (finding officer had probable cause for stop where he observed defendant “rolling through a red light, a violation of Florida's traffic law."). Accordingly, the trial court did not err in denying

Q: Explain to the jury, why the length of the brake light coming on would be a factor in determining if the vehicle actually stopped from 150 yards away?

A: So, as I'm sure you guys all drove in here today, when you come to a stop sign you have to come to a complete stop. It would take more than Kent's motion to suppress stop on the basis the officer had probable cause to stop Kent's vehicle after he failed to come to a complete stop at the stop sign.

b. Trial Court's Denial of Motion to Sever was not Harmful Error

"The standard of review for cases involving the consolidation or severance of charges is one of abuse of discretion.” Crossley v. State, 596 So. 2d 447, 450 (Fla. 1992). For joinder of offenses under Florida Rule of Criminal Procedure 3.150(a) to be appropriate, “the crimes in question must be linked in some significant way.” Ellis v. State, 622 So. 2d 991, 1000 (Fla. 1993). "This can include the fact that they occurred during a 'spree' interrupted by no significant period of respite, . . . or the fact that one crime is causally related to the other, even though there may have been a significant lapse of time." Id. We find no abuse of discretion here.⁷

approximately half of a second to actually have your vehicle come to a complete stop and safely look both directions to make sure that there's no vehicles, pedestrians, or in this case endangered animals in the area to proceed.

The harmless error test, as set forth in Chapman and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. Application of the test requires not only a close examination of the permissible evidence on which the jury could have legitimately relied, but an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.

491 So. 2d 1129, 1139 (Fla. 1986) (citation omitted).

The following independent evidence supporting the possession charges was presented at trial, was unrebutted, and corroborated by body camera footage:

• From the onset of the traffic stop, and throughout, Kent appeared to be nervous, was shaking, and avoiding eye contact.

• The officer found a clear plastic baggie containing a white powdery substance in the center console of the vehicle—in immediate reach of the driver's seat—in which Kent was the sole occupant.

• The officer field tested the substance, and it was positive for cocaine. • An FDLE senior crime lab analyst testified that she ran multiple tests on the baggie and confirmed it contained cocaine.

• Kent made incriminating statements on the way to jail, including offering to do a controlled narcotics buy for the officer. Under the harmless error test, the State, “as the beneficiary of the error, [must] prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” Carnright v. State, 388 So. 3d 926, 929 (Fla. 3d DCA 2024) (citing DiGuilio, 491 So. 2d at 1135). Simply put, the State has satisfied it burden of showing that any error in the trial court's denial of Kent's motion to sever was harmless beyond a reasonable doubt.

c. Trial Court's Denial of Motion for Mistrial was not Error

"The granting of a motion for mistrial is not based on whether an error is merely prejudicial but rather whether an error is so prejudicial as to vitiate the entire trial.” Talley v. State, 260 So. 3d 562, 568 (Fla. 3d DCA 2019) (quotation omitted). “A trial court's denial of a motion for mistrial is reviewed by an abuse of discretion standard." Gosciminski v. State, 132 So. 3d 678, 695 (Fla. 2013). Kent's argument that the trial court erred in denying his motion for mistrial is two-fold. First, he contends the State committed prosecutorial misconduct because of its concession that it did not have sufficient evidence to prove the DWLS charge after Kent's motion for judgment of acquittal. Second, the “evidential spillover” from the acquitted DWLS charge to the remaining charges was inherently prejudicial to warrant a mistrial. We reject both.

i. Prosecutorial Misconduct

The record supports the trial court's denial of Kent's motion for mistrial on the grounds that the prosecutor proceeded to trial after making good faith efforts to obtain necessary evidence. The prosecutor's exchange with the trial court when conceding the motion for judgment of acquittal was as follows:

THE COURT: Mr. Britt [the prosecutor], what about the DWLS? That seems to be a problem to me. I mean, obviously, Mr. --

[THE PROSECUTOR]: We acknowledge that your Honor. We concede that point. As much as we tried, the State of Michigan did not provide us what we asked for and to this day we still don't have it, so we have to concede that count, your Honor. THE COURT: Yeah, I mean, obviously Mr. Kent admitted multiple times that he didn't have a license, it's just obviously [THE PROSECUTOR]: The problem is my second element of the crime, SO I acknowledge that, Judge, and, like I said, we tried but we didn't have it in time for trial.

“As much as we tried,” indicates the State made good faith efforts to obtain the driving records, but its failure to do so was not because of its own intentional misconduct. Rather, the failure is a result of the State of Michigan not providing the prosecutor with the necessary documents. “[T]o this day" further indicates that the State was expecting the records would arrive at some point before trial or during its case in chief. These good faith efforts to obtain the evidence, and the Prosecutor's attempts to explain the State's actions so that the court would understand that its acts were not intentional, indicate that any evidentiary deficiency warrants acquittal on the charge (as occurred here) not intentional misconduct warranting a mistrial. See Ricardo v. State, 481 So. 2d 1296, 1297 (Fla. 3d DCA 1986) (affirming trial court's denial of motion for mistrial for prosecutorial misconduct where “[n]o showing was made in this case that the prosecuting attorney acted other than in good faith."); accord State v. Rodriguez, 723 So. 2d 888, 889 (Fla. 2d DCA 1998) (finding prosecutor's errors were not sufficient to declare mistrial in part because prosecutor made every attempt to explain his actions so court would understand that they were not intentional); see also State v. Esqueff, 468 So. 2d 395, 396 (Fla. 3d DCA 1985) (“Nor are we aware of any authority which requires that the state prove its case prior to trial or suffer a dismissal of its information for prosecutorial misconduct.").

ii. Evidentiary Spillover

Kent failed to establish the evidentiary spillover from the acquitted DWLS charge to the remaining charges was so prejudicial that mistrial was warranted. "Dismissal of some counts charged in the indictment does not automatically warrant reversal of convictions reached on remaining counts." United States v. Prosperi, 201 F. 3d 1335, 1345 (11th Cir. 2000). “Rather, a reviewing court must consider whether the convictions were the result of prejudicial spillover: that is, was there evidence (1) that would not have been admitted but for the dismissed charges and (2) that was improperly relied on by the jury in their consideration of the remaining charges.” Id. (emphasis added); see also United States v. Cross, 308 F. 3d 308, 317 (3d Cir. 2002).8

Here, the evidence against Kent as to the remaining counts was overwhelming—the officer's testimony that he found cocaine and paraphernalia in the center console of the car Kent was driving, Kent's nervous behavior throughout the traffic stop, and Kent's incriminating statements on the way to jail. Moreover, the court instructed the jury to consider the evidence to each crime charged, separately and that “[a] finding of guilty or not guilty as to one crime must not affect your verdict as to the other crimes charged.” The trial court further instructed the jury before

prove the remaining count . . . If the answer is 'no,' then our analysis ends[.]"). closing arguments that the DWLS charge was no longer to be considered after granting Kent's motion for judgment of acquittal.¹⁰

These instructions, along with the overwhelming independent evidence for the other charges, contravene Kent's argument that the jury improperly relied on evidence of his admission to not having a valid driver's license in their consideration of the remaining charges. See Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 942 (Fla. 2000) (“Absent a finding to the contrary, juries are presumed to follow the instructions given them."); accord United States v. Lopez, 649 F. 3d 1222, 1234 (11th Cir. 2011) ("[L]imiting instructions usually will cure any prejudice resulting from a joint trial[.]"); United States v. Davis, 724 F. 3d 949, 956 (7th Cir. 2013) (“[T]he district court diminished any spillover prejudice by instructing the jury that 'each count and the evidence relating to it should be considered separately."). As such, Kent fails to establish the second prong of the prejudicial spillover analysis. Consequently, Kent cannot demonstrate the State's introduction of evidence that he admitted he did not have a valid

In conclusion, we affirm the trial court in all respects. First, the denial of Kent's motion to suppress the stop was not error. The officer's observation that Kent's brake lights were illuminated for only half a second is an objective basis to believe the vehicle did not come to a complete stop as required by law. Running a stop sign provides probable cause for a traffic stop. Second, the trial court's denial of Kent's motion to sever the charges was not harmful error. Even assuming there was error—which there was not—in failing to sever the charge as Kent requested, it would be harmless error. This is because the State, as the beneficiary of the error, has proven beyond reasonable doubt that the error complained of did not contribute to the verdict. Finally, the denial of Kent's motion for mistrial was not error. Kent fails to establish prosecutorial misconduct required for the granting of a mistrial. Kent also fails to establish prejudicial spillover because the evidence for his acquitted DWLS charge would have nevertheless been admissible to prove the remaining charges. Additionally, the trial court's multiple instructions to the jurors to consider each charge separately, along with the overwhelming independent evidence for the other charges—the officer testifying he found cocaine and paraphernalia in the center console, Kent's nervous behavior throughout the traffic stop, and Kent's incriminating statements on the way to jail—weigh against the jury improperly relying on the contested evidence for the remaining charges.

Affirmed.