LAZARO RODRIGUEZ

v.

STATE OF FLORIDA

WALSH, J.

Lazaro Rodriguez appeals his conviction and jail sentence on a charge of resisting an officer without violence. He argues that because the police officers Filing # 106817468 E-Filed 04/28/2020 07:20:09 Rodriguez as follows: LAZARO MANUEL RODRIGUEZ, on or about December 17, 2015, . . . .did unlawfully resist, obstruct, or oppose OFFICER N. AMORES (sic) AND/ OR OFFICER A. LEON, . . . in the lawful execution of a legal duty or process then being performed by said officers, to wit: the detention and/ or arrest of said defendant without said defendant offering or doing violence to the person of said officers, in violation of s. 843.02, Fla. Stat.. . . . The State presented the following testimony at a bench trial. On December 17, 2015 at almost 3:00 a.m., several officers were conducting a stationary radar and training operation on the corner of 18th avenue and 1st Street. Officer Amoris stood on the street checking the speed of passing cars with a radar gun. When he detected cars exceeding the speed limit, he would direct the drivers to stop, request license, registration and insurance and direct the drivers to park in an adjacent parking lot. Mr. Rodriguez’s car was traveling 43 miles per hour, in excess of the speed limit. Officer Amoris directed Mr. Rodriguez to pull into the adjacent parking lot to be processed for a speeding ticket. Meanwhile, other officers remained on the street about 15 feet away from the parking lot and continued to conduct radar speed checks. After Mr. Rodriguez parked, he got out of the car to smoke a cigarette. Officer Leon, who was processing Mr. Rodriguez’s stop, ordered him to get back [*3] Page 3 of 18 into the car. Although Mr. Rodriguez complied, he began to yell obscenities at the officer. Officer Tobin walked toward Mr. Rodriguez’s car and saw Mr. Rodriguez visibly upset and complaining about receiving a speeding ticket at 3:00 in the morning. Mr. Rodriguez’s wife, also in the car, urged him to calm down. Officer Leon motioned for Officer Amoris to come over. Officer Tobin, who was watching the interaction, testified, Officer Leon kind of, sort of motioned for Officer Amoris. I came closer, and I think the Lieutenant came closer. And when we came closer, he was good. He got back in the car, he put on his seatbelt. I thought he was going to go about his business. When Officer Amoris got there, there was an exchange between Officer Amoris and Mr. Rodriguez, where he was again complaining about the ticket, and why are you out here giving tickets. And you shouldn’t be giving tickets. Officer Amoris said to him a few times, hey, look, this isn’t court. Take it to court. I’m working here. And there were four cars lined up in the, sort of in the cube that we were working on. Mr. Rodriguez went back and forth with Officer Amoris regarding getting tickets at 2:00 in the morning for a minute or two. Mr. Rodriguez was upset. At some point Officer Amoris starts to leave. They’re still having sort of an exchange. As Amoris gets further away from the car, he undoes his seatbelt and he gets out of the car. Officer Amoris is telling him, get back in your car. You’re gonna go to jail, get back in your car. I told you to leave. After several of those Amoris says, hey, put your hands behind your back, you’re going to jail. He puts. He puts the handcuffs on him. Officer Amaris described the interaction as follows: [*4] Page 4 of 18 I explained this to him about three to four times. At which time I started to walk away, and I told him that he can leave. He needs to leave. Q. Could you describe the Defendant’s actions after you gave him this instruction?

A. The Defendant then became extremely irate and started

cursing more. And as I’m walking away I have a visual of him. I’m walking away, the Defendant rapidly exits, takes off his seatbelt, kicks the door open and exits the vehicle. Q. Did the Defendant approach you after that? A. The Defendant – the Defendant clenched his fist, at which time I told him sir, you need to put your hands back on top of the vehicle. That you’re impeding an investigation, and all my concentration from all the other vehicles being stopped at the time, it’s all focused on you right now. Other officers had to come and assist us. Q. What were his actions after you told him to get back in the vehicle?

A. He did not comply.

Q. At that point what did you do? A. At that point I told him that he was under arrest, to put his hands behind his back. And I grabbed his right arm.

Analysis At issue is whether the Defendant’s actions in disobeying Officer Amoris’ order to leave after being issued a speeding ticket established the misdemeanor offense of resisting an officer without violence. There was no challenge to the sufficiency of the evidence below. Unpreserved claims challenging the sufficiency of the evidence below may only be addressed where “‘there is insufficient evidence that a defendant committed any crime.’” Aquino v. State, 276 So. 3d 464, 468 (Fla. 3d DCA 2019) (quoting Monroe v. State, 191 So. 3d 395 (Fla. 2016)). The Court in Monroe explained: [*5] Page 5 of 18 Challenges to the sufficiency of the evidence inherently question the conclusions of the fact-finder, a process that we, as an appellate court, are reluctant to undertake. Appellate courts should more closely concern themselves with the legal sufficiency of the evidence, rather than the weight assigned to or the credibility of the evidence before the trial court. Therefore, when an appellate court conducts a sufficiency review, it deferentially reviews all of the evidence in the record in the light most favorable to the government to determine whether a rational trier of fact could have reached the verdict. Id. at 401-02.

To constitute the crime of resisting an officer without violence, the State was required to offer proof of the following elements: “(1) the officer was engaged in the lawful execution of a legal duty and (2) the defendant's action constituted obstruction or resistance of that lawful duty.” C.W. v. State, 76 So. 3d 1093, 1095 (Fla. 3d DCA 2011), citing J.P. v. State, 855 So. 2d 1262, 1265–66 (Fla. 4th DCA 2003); Jay v. State, 731 So. 2d 774 (Fla. 4th DCA 1999); § 843.02, Fla. Stat. (2015). Here, applying the above deferential standard of review of this unpreserved challenge, the State failed to prove the crime of resisting an officer without violence. To sustain Mr. Rodriguez’s conviction, the State was required to prove that Officers Amoris and/ or Leon were engaged in the lawful execution of a legal duty. If not, then even if the Defendant did resist the officers’ command to get in his car and leave, he has not committed the crime of resisting an officer without violence. This is because the common law rule remains that a person may resist an illegal [*6] Page 6 of 18 arrest without violence. See Lobb v. State, 2020 WL 499708 (Fla. 2d DCA Jan. 31, 2020); K.Y.E. v. State, 557 So. 2d 956 (Fla. 2d DCA 1990).1 Rodriguez resisted or opposed Officer Amoris’ order to get back in his car and leave after being issued a citation.² In C.W., the court describes the term “legal duties” in the context of the charge of resisting an officer as follows: “legal duties” include (1) serving process; (2) legally detaining a person; or (3) asking for assistance in an emergency situation, or (4) impeding officers' undercover activities by acting as a “lookout” during the commission of a criminal act. See, e.g., Davis v. State, 973 1 The State argues that because this issue was unpreserved, failure to prove a single element does not merit reversal because it does not constitute fundamental error. Smith v. State, 241 So. 3d 53 (Fla. 2018). However, the crime of resisting or obstructing an officer is unique in that failure to prove a lawful order renders the crime itself nonexistent, because a person is permitted to resist or obstruct an unlawful order. Thus, error here is not merely the failure to prove an element, but the failure to prove the crime itself.² This theory differs from the charging document, which alleged that Mr. Rodriguez obstructed Officer Amoris or Leon by resisting his detention or arrest. However, the testimony at trial did not establish that Mr. Rodriguez was arrested on some other charge and then resisted that arrest. Rather, the evidence at trial established that he resisted or opposed the police’s repeated orders to get back in his car and leave. No objection was made to this altered theory of prosecution (as Mr. Rodriguez was self-represented because the trial judge discharged his lawyer), and this altered theory therefore was tried by consent. See Federal Home Loan Mortg. Corp. v. Beekman, 174 So. 3d 472 (Fla. 4th DCA 2015) (An issue is tried by consent “when there is no objection to the introduction of evidence on that issue.”) (quoting Scariti v. Sabillon, 16 So. 3d 144, 145–46 (Fla. 4th DCA 2009)) (citation omitted). Alternatively, this issue is waived because there was no objection below. [*7] Page 7 of 18 So. 2d 1277 (Fla. 2d DCA 2008); [Jay v. State, 731 So. 2d 774, at 775 (Fla. 4th DCA 1999)]; Porter v. State, 582 So. 2d 41, 42 (Fla. 4th DCA 1991). Although this is not an exhaustive list, it is clear that there is a difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job. See, e.g., Jay, 731 So. 2d at 776; D.G. v. State, 661 So. 2d 75, 76 (Fla. 2d DCA 1995). 76 So. 3d at 1095. In C.W., the police arrested a juvenile who refused to obey an order to move off of the street and on to the unpaved swale. The court noted that “[t]he officer’s initial request that C.W. move a de minimus distance out of the road was a reasonable part of the job as community safety officers. But the officers had no legal duty to insist on compliance and to enforce that insistence with arrest where the record shows that there were no circumstances warranting this.” Id. at 1095-96. Citing K.A. v. State, 12 So. 3d 869 (Fla. 4th DCA 2009) (no evidence of trespass to justify arrest for refusing to leave a skating rink). In a number of cases, Florida’s appellate courts have similarly concluded that a suspect resisting an order -- made while the officer is on the job but not exercising a legal duty that compels compliance -- is not a crime. See R.E.D. v. State, 903 So. 2d 206 (Fla. 3d DCA 2004) (Defendant telling unnamed males who approached a target house in drug sting operation, “99 that's the police there” is not crime of obstruction); D.L.S. v. State, 192 So. 3d 1273 (Fla. 2d DCA 2016) (ignoring police order to stop when walking away after telling a crowd not to disperse is not obstruction of lawful order); Jay v. State, 731 So. 2d 744 (Fla. 4th [*8] Page 8 of 18 DCA 1999) (defendant warning female suspects not to get in the car interrupting police prostitution sting operation did not constitute resisting an officer); K.A. v. State, 12 So. 3d 869 (Fla. 4th DCA 2009) (refusing to obey officer’s order to stop yelling at a dispersing crowd is not resisting lawful order); W.W. v. State, 993 So. 2d 1182 (Fla. 4th DCA 2008) (lying to police about suspect’s whereabouts during officer’s search for suspect did not constitute resisting a lawful order); D.A.W. v. State, 945 So. 2d 624 (Fla. 2d DCA 2006) (defendant refusing to obey order to desist verbally harassing suspect being arrested for throwing beer bottle and refusing to obey order to leave did not constitute resisting a lawful order). The State argues that the officers were engaged in the lawful execution of a legal duty because Mr. Rodriguez’s belligerence impeded their ability to complete ticketing the three or four other stopped vehicles in the parking lot. The State cites to M.M. v. State, 674 So. 2d 883 (Fla. 2d DCA 1996), H.A.P. v. State, 834 So. 2d 237 (Fla. 3d DCA 2002) and Wilkerson v. State, 556 So. 2d 453 (Fla. 1st DCA 1990). Wilkerson is not applicable to our determination whether the officers were engaged in the lawful execution of a legal duty. The sole issue raised in Wilkerson was whether an obstruction ordinance was overbroad and whether a defendant’s conduct violated free speech. The defendant in Wilkerson did not challenge the lawfulness of the police order. Moreover, the defendant’s conduct in Wilkerson -- [*9] Page 9 of 18 yelling and cursing at the police attempting to handcuff other suspects -- was described in the opinion as physically obstructive. Id. at 455. H.A.P and M.M. addressed defendants’ conduct which either physically impeded the arrest of another person or created safety concerns. These cases do not control whether ordering a ticketed speeder to leave a parking lot is the lawful execution of a legal duty. In H.A.P., a juvenile loudly protested a S.W.A.T team’s execution of a narcotics warrant directly across the street. H.A.P refused to obey the S.W.A.T officers’ order to leave to protect his and others’ safety. In the opinion, the court explained, H.A.P. was not arrested for merely cursing at law enforcement officers. H.A.P. was arrested because he refused to leave the nearby area where the SWAT team was attempting to execute a narcotics search warrant. It is important to remember that H.A.P. was standing directly across the street from the front door of the residence that the police were going to search. Therefore, he was in the direct line of fire if the occupants of that residence would have fired weapons upon the SWAT team's execution of the narcotics search warrant. As such, prior to the execution of the search warrant, the police, in an attempt to secure the outer perimeter, believed, and rightfully so, that it was necessary for H.A.P. to leave the area. Id., at 238-39. Likewise, in M.M., the defendant not only verbally but physically interfered with the police’s attempt to apprehend another individual for trespassing. The witnesses believed that M.M. was going to jump on the officer's back from the way she came at him. The officer told the appellant that she needed to back off, get [*10] Page 10 of 18 away and leave him alone; he was taking care of an investigation and she should not interfere. She did not comply and continued to approach as the officer put out his hand to further indicate she should stop. A bystander became involved, and the situation threatened to escalate. The campus monitor then approached and assisted in controlling the trespasser. When the officer turned to the appellant and advised her that she was under arrest, she began to struggle with him. Id. at 884. As in H.A.P., the police ordering M.M. to leave and desist her physical interference was the lawful execution of a legal duty. Mr. Rodriguez, in contrast, after receiving his speeding ticket, belligerently and profanely protested the ticket, kicked open his door and stood outside his car with a clenched fist. There is no doubt that his behavior was irritating, distracting and bothersome to the officers engaged in writing tickets for other drivers stopped in the parking lot. But there was no testimony that Mr. Rodriguez approached the officers, interfered with the remaining drivers’ receiving their tickets, or was physically obstructive in any manner. Nor was Mr. Rodriguez blocking traffic or impeding a highway – he was standing in a parking lot. Had Mr. Rodriguez approached the officers or the other drivers or done more than merely shout obscenities after receiving his ticket, had he created circumstances endangering himself or the public, the result might be different. Thus, while it was certainly appropriate police conduct to direct Mr. Rodriguez to “move along,” this order does not constitute the lawful execution of a legal duty to elevate the Defendant’s loud protest into an arrestable offense. C.W., [*11] Page 11 of 18 76 So. 3d at 1095-96 (“The officers' initial request that C.W. move a de minimus distance out of the road was a reasonable part of their job as community safety officers. But the officers had no legal duty to insist on compliance and to enforce that insistence with arrest where the record shows that there were no circumstances warranting this”). Accordingly, because the police were not engaged in the execution of a legal duty, Mr. Rodriguez was entitled to resist and there was no crime of resisting an officer without violence. For the foregoing reasons, we reverse and remand with directions to vacate the Defendant’s conviction for resisting and officer without violence and dismiss the charge. TRAWICK, J., concurs. REBULL, J., specially concurring. A person who loudly, irately, and profanely complains to – and argues with – police officers who have given him a speeding ticket in the midst of an ongoing speed trap does not commit the crime of obstructing an officer without violence. As a result, I agree that the judgment and sentence in this case should be reversed, and the case remanded with directions that the charge for resisting arrest without violence be dismissed. While I respectfully disagree with the majority’s conclusion that the police officers here were not engaged in the lawful execution of a legal [*12] Page 12 of 18 duty; even in the light most favorable to the State, Mr. Rodriguez’s words and actions did not “obstruct” or “oppose” the officers in the execution of their duty.

I.

Is a police officer operating a radar gun to enforce the speed limit engaged in the execution of a legal duty? How about a police officer writing a speeding ticket for one of several drivers lined up in a parking lot waiting to be processed? Because I think the answers to these questions is “yes,” I conclude that Officers Leon and Amores were engaged in the execution of a legal duty. Officer Amores was in the street with a radar gun. After clocking him going 43 miles per hour in a 30 mile per hour zone, the officer stopped Mr. Rodriguez. He directed him to drive over to a parking lot where he was sending all of the vehicles he stopped for speeding. In that parking lot, other officers would process the drivers by checking their license, insurance, and registration, and write up their tickets. Officer Leon attended to Mr. Rodriguez. There were about three or four other vehicles lined up in the parking lot. In sum, Mr. Rodriguez was “extremely irate,” and “cursing” about the fact that he received a speeding ticket. Even after Officer Leon successfully gave him his speeding ticket, Mr. Rodriguez was still upset and angrily arguing with Officer Leon. [*13] Page 13 of 18 Unfortunately, at that point, Officer Leon was unable to de-escalate the situation. He called over Officer Amores to help him. As a result, Officer Amores stopped what he was doing with the radar gun, and came over to speak with Mr. Rodriguez. Regrettably once again, the interaction did not de-escalate. The exchange between Mr. Rodriguez and Officer Amores became increasingly heated. Mr. Rodriguez continued to argue with Officer Amores, instead of driving away. When Mr. Rodriguez got out of his car to continue arguing, he ignored Officer Amores’s order to get back in his car and leave, which ultimately led to the officer arresting him and taking him into custody. It is especially important to note that there was absolutely no testimony presented that at any time any officer felt threatened by Mr. Rodriguez or feared for his safety.

II.

Section 843.02 makes it a first degree misdemeanor for a person to “resist, obstruct, or oppose any officer . . . in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer . . . .” Thus, the State has to prove that “(1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So. 3d 1181, 1185–86 (Fla. 2009). [*14] Page 14 of 18 The majority characterizes the “legal duty” element in this case as Officer Amores’s order to Mr. Rodriguez that he get in his car and drive away. But that characterization completely divorces that order from the context in which it was made. Of course a police officer walking down the street - or simply driving around on patrol - cannot order a person standing in a parking lot to get in their car and drive away. That is the holding of C.W., where the court (while noting that its list of “legal duties” was not exhaustive) held that there was “a difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job.” C.W. v. State, 76 So. 3d 1093, 1095 (Fla. 3d DCA 2011) (emphasis added). In C.W., the majority noted that the officers were merely driving around and there was no record evidence to support their order to C.W. to move off the street and on to the sidewalk; since there was no evidence he was actually interfering with traffic (as there was no vehicular traffic on the street at that time). See C.W., 76 So. 3d at 1094, 1096. In this case, Officers Amores and Leon were plainly not “merely on the job.” Leon was processing drivers who were waiting in the parking lot; and Amores was operating the radar gun. They were engaged in the execution of their legal duties. This case turns instead on the utter lack of evidence that Mr. Rodriguez’s complaints about his ticket, and his failure to drive out of the parking lot, in any [*15] Page 15 of 18 way obstructed or interfered with what Officers Leon and Amores were doing. What would have happened if Officer Leon had stopped arguing with Mr. Rodriguez and walked away to the next driver? If Officer Amores had done the same and went back to operating the radar gun? More importantly, who or what prevented them from doing so? Certainly not Mr. Rodriguez. This case falls under the line of cases, typified by D.G. v. State, 661 So. 2d 75 (Fla. 2d DCA 1995) and D.A.W. v. State, 945 So. 2d 624 (Fla. 2d DCA 2006), holding that the evidence of the defendants actions did not constitute “obstruction” under the statute. In D.G., the officers were investigating a car burglary. They knocked on the door of D.G.’s home between 3 and 4 in the morning. D.G. came outside “protesting loudly and obnoxiously,” refused to answer any questions, “but never threatened anyone.” He also flouted the officers’ orders to stop yelling. The D.G. Court reversed the trial court’s finding that “D.G.’s protests rose to the level of a violation of section 843.02. These cases, and other Florida cases, seem to support the following general proposition: If a police officer is not engaged in executing process on a person, is not legally detaining that person, or has not asked the person for assistance with an ongoing emergency that presents a serious threat of imminent harm to person or property, the person's words alone can rarely, if ever, rise to the level of an obstruction. Thus, obstructive conduct rather than offensive words are normally required to support a conviction under this statute. . . . Such obstructive conduct was not established in this case. D.G. v. State, 661 So. 2d 75, 76–77 (Fla. 2d DCA 1995). [*16] Page 16 of 18 Similary, in D.A.W. the Court held that there was insufficient evidence to support a finding that “D.A.W. opposed or obstructed an officer.” D.A.W. v. State, 945 So. 2d 624, 625 (Fla. 2d DCA 2006). There, an officer was arresting an adolescent. D.A.W. stood with another person about 15 to 30 feet away and was harassing, antagonizing, and making threats towards the adolescent. D.A.W. disregarded more than three of the officer’s orders to leave. While the officer was unquestionably engaged in the lawful execution of a legal duty, the court held that D.A.W.’s words or actions did not amount to “obstruction” of the officer. [A] person's exercise of free speech, without more, in an open public place while an officer is engaged in the execution of a legal duty must do more than merely irritate, annoy, or distract the officer to constitute a crime. * * * The evidence from the police officer in this case did not establish that D.A.W. had committed a crime. D.A.W. remained at a distance and did not approach the officer or physically threaten the officer or arrestee . . . . D.A.W. v. State, 945 So. 2d 624, 627 (Fla. 2d DCA 2006). Lastly, in State v. Legonsky, 27 So. 3d 794 (Fla. 2d DCA 2010), the Court surveyed the case law regarding when words alone (as opposed to physical conduct - or words and physical conduct) can satisfy the “obstruction element” of 843.02. In sum, none of those scenarios is present in this case. In such circumstances, the defendant's words are intended to interfere with and impede police officers in the execution of their legal duties. [*17] Page 17 of 18 Similarly, words alone support obstruction charges when the defendant gives a police officer a false name during his arrest, because that act hinders the officer's performance of his arrest duties. The focus, thus, should be on whether the defendant's [words] were intended to hinder the police officer in the exercise of his duties . . . . * * * As in the cases cited above, Legnosky's words were intended to hinder, prevent, or obstruct Deputy Darst's legal duties of serving process and taking Coteral into custody for substance evaluation. Legnosky's words were not mere verbal expression challenging police action, but rather, on their face, were intended to impede the officer [ ] in the execution of [his] duties. State v. Legnosky, 27 So. 3d 794, 797-98 (Fla. 2d DCA 2010) (internal quotations and citations omitted). Without a doubt, Mr. Rodriguez’s words were irritating, annoying, and distracting; but they were also patently not intended to hinder, prevent, or obstruct the officers from engaging in their legal duties with other drivers. They were instead intended to complain about the speeding ticket he had received.3

III.

Being a police officer is very difficult for a number of reasons. Officer safety is paramount. It is critical to my analysis in this case that no officer ever testified that Mr. Rodriguez threatened them, or that they ever feared for their 3 In C.W., on which the majority relies, in addition to the “legal duty” element, the court also held that evidence failed to support a finding of the obstruction element. See C.W. v. State, 76 So. 3d 1093, 1096 (Fla. 3d DCA 2011) (C.W.’s refusal to step out of the street and use of profanity was not an “obstruction”). [*18] Page 18 of 18 safety. Among the many difficult things we ask an officer to do, is to be calm and polite when faced with a knucklehead. When an obnoxious hothead attempts to provoke them, we ask officers to be diplomatic and patient. That is not easy for any human being. Mr. Rodriguez was fuming and bent out of shape because he got caught by a speed trap at about 3am, with his wife and baby in the car. He made several bad decisions during that early morning. What he didn’t do, however, was obstruct the officers in their ability to continue going about performing their duties in enforcing the speed limit. No evidence was presented below that if they had simply walked away from Mr. Rodriguez, they would not have been able to resume executing their duties. Copies provided to all parties