STATE OF FLORIDA

v.

KEREN-ESTHER HARP

Ari Goldberg, Esq., Asst. State Attorney 401 North Dixie Hwy West Palm Beach, FL 33401 [email protected]

PER CURIAM.

Keren-Esther Harp (the Defendant in the case below) was found guilty of Leaving the Scene of a Crash Involving Damage and Reckless Driving Causing Injury to Property following a jury trial. Defendant argues on appeal that the trial court erred by overruling her hearsay objection to the testimony of a community service aide¹ regarding statements made by another driver. Defendant contends that the testimony was inadmissible hearsay and by admitting such testimony, the court caused harmful error. We agree and reverse.

N¹ The damage to Ansley's car, however, consisted of "[a] slight mark on the left rear, but not much to speak of." Defendant denied ever colliding with the vehicle driven by Ansley. Ryan also observed what she deemed "fresh damage" on the right front side of the Defendant's car. Ryan made the following references to Ansley² during her testimony:

MR. FLAGG³: Okay, and this damage was consistent with the testimony – or this investigation-

MR. EVANS: Objection, speculation.

N² State, 589 So. 2d 1011 (Fla. 4th DCA 1991). The harmless error test 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 N⁵ Ansley. conviction. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict. Id.

A swearing match is defined as "a dispute in which determining a vital fact involves the credibility choice between one witness's word and another's-the two being irreconcilably in conflict and there being no other evidence." Black's Law Dictionary 1488 (8th ed. 2004) (emphasis added). The bulk of the evidence in the case was a swearing match between Vasquez and the Defendant, as they each argued that the other caused the accident. Ryan's hearsay testimony was that "[Ansley] had stated that it was the right front of the vehicle end of Ms. Harp's vehicle that had struck the left rear of the first vehicle involved in the accident." This was the only evidence explaining Ansley's involvement in the accident and proving that the Defendant was the person who struck her, as neither the Defendant nor Vasquez testified to those facts. Without Ryan's hearsay testimony, the only evidence in the record concerning Ansley was that she was involved in the accident and that her vehicle had a "slight mark" from the accident. There was no other testimony as to the position of Ansley's vehicle relative to Vasquez or the Defendant.

The harmless error test requires the State to prove beyond a reasonable doubt that the hearsay did not contribute to the verdict. Ryan's hearsay testimony was the only evidence in the record that the Defendant hit Ansley in addition to Vasquez. In a "swearing match" between the Defendant and Vasquez on the Reckless Driving charge, we find that Ryan's testimony about Ansley as an additional victim may have affected the verdict. The existence of a second victim in a Reckless Driving charge is extremely damaging to the Defendant's case, and is the type of fact that may have pushed the jury from deciding that the State had proven guilt only a preponderance of evidence-not guilty to deciding that the Defendant was guilty beyond a reasonable doubt. As an independent investigator of the accident, the jury may very well have credited Ryan's testimony additional weight compared to Vasquez of the Defendant, both of whom had reasons to lie (the Defendant because she was on trial, and Vasquez because there was evidence that he lacked car insurance). Because we cannot be certain beyond a reasonable doubt that the hearsay statement was not prejudicial to the jury verdict, we REVERSE the Defendant's conviction and REMAND for a new trial.

KELLEY, MARTZ, and MCSORLEY, JJ., concur.