FRANKY ELMA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Franky Elma was convicted of burglary of a dwelling. The Fourth District Court of Appeal affirmed his conviction, rejecting his arguments that circumstantial evidence was insufficient and that gunshot residue evidence violated the Frye test for scientific reliability.
The court affirmed the conviction. First, the sufficiency of evidence argument was not preserved because it was not raised at trial; the defense had instead argued insufficient evidence as to identification. Second, the gunshot residue evidence was properly admitted because any Frye challenge addressed forensic relevance rather than the reliability of the scientific method, the evidence actually supported the defense theory, and its probative value was not outweighed by prejudicial effect.
[1] An argument not raised at trial is not preserved for appeal.
[2] The Frye test applies to the admissibility of novel scientific evidence.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the argument made on appeal was not preserved in the trial court and cannot be raised for the first time on appeal”
Establishes that sufficiency of evidence arguments not raised at trial cannot be raised for first time on appeal
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Join FLexlaw to unlock all legal intelligenceAppellant Elma and a co-defendant were involved in a burglary and shooting incident. A key issue at trial was who fired the gun—the state claimed the …
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WARNER, J.
We affirm appellant’s conviction for burglary of a dwelling. Although appellant argues that the circumstantial evidence was insufficient for him to be found a principal to burglary of a dwelling or of shooting into an occupied dwelling, this argument was not raised at trial. Instead, the defense argued the evidence was insufficient as to the identification of appellant. Thus, the argument made on appeal was not preserved in the trial court and cannot be raised for the first time on appeal. See Callins v. State, 698 So. 2d 888, 885 (Fla. 4th DCA 1997); Cornwell v. State, 425 So. 2d 1189, 1190 (Fla. 1st DCA 1983).
As a second issue on appeal, appellant contends that the court erred in admitting evidence of gunshot residue testing of appellant’s co-defendant because it did not pass the Frye test for scientific reliability. One issue in this case related to who fired the gun. The state claimed that appellant’s co-defendant did the shooting, and the defense argued that one of the victims fired the gun. The co-defendant called the residue expert to establish that the victim had twelve particles of gunshot residue on his hands. Prior to the expert’s testimony, the co-defendant’s counsel moved in limine to prevent the expert from also testifying that the co-defendant had only one particle on his hand, as the expert would also testify that generally a finding of two or less particles is not forensically significant. Appellant and his co-defendant both argued that /the testing failed to meet the Frye standard.
Appellant’s argument, however, did not contest the reliability of the expert’s scientific methods of obtaining the residue, but rather, the forensic relevance of the finding that residue was present. At best, because of its forensic insignificance, the evidence may not have been relevant. However, in our view, it actually tends to prove the defense’s theory that the victim shot the gun rather than the co-defendant because the co-defendant did not have a forensically significant amount of residue on his hand. The expert explained that this small amount of residue could occur without even touching a gun which was fired.
Finally, we conclude that the prejudicial effect of this evidence did not outweigh its probative value. The state did not highlight this evidence; the defense did. While the defense argued the gun residue on the victim’s hands in closing argument, neither side mentioned the residue on the co-defendant’s hand. We fail to see how this evidence harmed the defense more than it helped it.
Affirmed.
FARMER and TAYLOR, JJ., concur.
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Citator
Authorities Cited
- Ford v. Wainwright, 425 So. 2d 1189 (Fla. 1st DCA 1983)
- Cornwell v. State, 425 So. 2d 1189 (Fla. 1st DCA 1983)