EUGENE HWANG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2017-05-03
No. 4D14-3288
Warner, Taylor and Levine, JJ., concur.
219 So. 3d 67 Florida District Court of Appeal, Fourth District (2017) Positive Treatment
Cited by 1 case

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Eugene Hwang appealed his conviction for sexual battery, challenging the admission of statements from a police-recorded conversation with the victim and the denial of his mistrial motion based on a reference to his prior DUI. The Florida Fourth District Court of Appeal affirmed the conviction but remanded for correction of sentencing documents to reflect the proper degree of felony and statutory citations.


Holding

The court held that the friend's statement relayed by the victim was not hearsay because it was not offered for the truth of the matter but for the reaction of the listener (appellant). The court also held that a mistrial was not required where the reference to the prior DUI was inadvertent and brief, and the trial court gave a curative instruction. However, the court remanded for correction of the sentencing scoresheet to reflect a second degree felony conviction and to correct the statutory citation for the assessment fee.


Headnotes

[1] A statement made by a victim to a defendant during a police-recorded conversation, which elicits the defendant's reaction, is not hearsay when offered to show the listene…

[2] A mistrial is not automatically required when collateral crime evidence is inadvertently and briefly mentioned during trial, especially when the court provides a curative…

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Key Quotes

“The friend's statement relayed by the victim was not introduced for the truth of the matter but for the reaction of the listener, appellant. Thus, it was not hearsay.”

Establishes the non-hearsay exception for statements offered to show listener's reaction rather than truth of the statement.

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Facts & Procedural History

Appellant was convicted of sexual battery. During police-recorded conversations, the victim questioned appellant about the sexual assault and referenc…

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Opinion of the Court
Per Curiam.

Per Curiam.

In this appeal of his conviction for sexual battery, appellant raises two issues. First, he argues that the trial court erred by denying his motion to redact what he claims is hearsay from police-recorded conversations between the victim and appellant. During the conversations, the victim questioned appellant about the sexual assault. She asked him why he continued forcing himself on her when his friend, who was present at the time but did not testify at trial, told appellant “not to do it.” The friend’s statement relayed by the victim was not introduced for the truth of the matter but for the reaction of the listener, appellant. Thus, it was not hearsay. See McWatters v. State, 36 So.3d 613, 638 (Fla. 2010) (holding that police officer’s inclusion, in his interrogation of defendant, of statements made by other witnesses which were not offered for the truth of their content were thus not objectionable).

Second, appellant contends that the court reversibly erred in denying his motion for mistrial when the victim mentioned in her testimony that he had a prior DUI. The court sustained the objection and gave a curative instruction but concluded that a mistrial for this fleeting reference was not warranted. A mistrial is not always required where collateral crime evidence is referred to at trial, particularly where the reference was inadvertent and brief, as it was in this case. See Rivera v. State, 745 So.2d 343, 345 (Fla. 4th DCA 1999).

As to the sentence, the State concedes that the scoresheet and statutory references for the degree of felony, as well as for costs, should be corrected. The judgment and scoresheet indicated that appellant was convicted of a first degree felony. The State agreed prior to trial that it was actually a second degree felony. While the judgment was corrected to reflect a second *69degree felony, the State concedes that the scoresheet must also be corrected to show a conviction for a second degree felony rather than a first degree felony. See § 794.011(5), Fla. Stat. (2012). No change in the lowest permissible sentence is necessary, because it was scored as a level eight offense on the sentencing scoresheet. See § 921.0022(3)(h), Fla. Stat. (2012) (making sexual battery of a victim over the age of twelve without physical force likely to cause serious injury a second degree felony and a level eight offense). The statutory reference for the $100 assessment for the Operating Trust Fund of the Department of Law Enforcement was also in error. The correct statutory citation should be section 938.055, Florida Statutes (2012), which became effective October 1, 2012. On remand, the sentence should also be corrected to reflect the proper statutory citation.

Affirmed but remanded to correct sentence,

Warner, Taylor and Levine, JJ., concur.


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Citator

Cited By

  • Hwang v. Fla. Dep't of Corr. (S.D. Fla. 2023)
    …Ground One. As the Report explains, the state appellate court’s determination that the statements identified by Petitioner were not being used for the truth of the matter but rather for the effect upon the listener (Petitioner), see Hwang v. State, 219 So. 3d 67 (Fla. Dist. Ct. App. 2017), was “neither contrary to nor an unreasonable application of clearly established law, nor was it an unreasonable determination” of the facts [ECF No. 20 p. 9].2 The Court agrees; the statements by the third party telling…
    1 / 2

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