JOHN HAMILTON HOOVER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Hoover was convicted in a bench trial of entering a building without breaking with intent to commit aggravated assault. He appeals on insufficiency of evidence grounds, but the court affirms because the trial judge properly weighed conflicting evidence and key photographic exhibits were not included in the appellate record.
The conviction is affirmed because (1) in a non-jury trial with conflicting evidence, the trial judge has authority to reject testimony found untrue and accept testimony found worthy of belief, and (2) the appellant failed to include essential photographic exhibits in the appellate record, making appellate review of evidentiary sufficiency improper.
“it is a fundamental principle that an appellate court does not sit as the trier of fact”
Establishes that appellate courts must defer to trial court findings and credibility determinations
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Join FLexlaw to unlock all legal intelligenceAfter a non-jury trial, Hoover was found guilty of entering without breaking into a building with intent to commit aggravated assault. Two photographs…
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After a non-jury trial, the appellant was found guilty of entering without breaking into a building with the intent to commit a felony therein, to-wit, aggravated assault. He appeals and contends that the evidence was insufficient to sustain the trial court’s finding of guilt. The evidence is conflicting but it is a fundamental principle that an appellate court does not sit as the trier of fact. Williams v. Smelt, Fla.1955, 83 So.2d 1. Where there are conflicts in the evidence in a non-jury trial, it is within the province of the trial judge to reject any testimony he finds to be untrue and to accept and rely upon that which he finds to be worthy of belief. Eizenman v. State, Fla.App.1961, 132 So.2d 763.
There is an additional reason to affirm this case. There were submitted into evidence in the trial below two photographs of some of the people involved in this matter. An essential issue determined by the trial judge may have been whether the parties were forced at gun point to pose for the photographs; or whether they freely and voluntarily consented to the photographs. The appellant has not brought these photographs up in the record on appeal. Generally, the sufficiency of the evidence to sustain a verdict cannot be considered on appeal where the exhibits introduced are not made a part of the record. Steele v. State, 85 Fla. 57, 95 So. 299 (1923); Belfield v. Lochner, Fla.App. 1964, 162 So.2d 668. It is axiomatic that an Appellate Court will not reverse a finding of fact by the lower court unless the error is patent on the record. Mixon v. State, Fla.1951, 54 So.2d 190. For the above and foregoing reasons the verdict herein appealed be and the same is hereby
Affirmed.
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Citator
Cited By (19 total)
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Matera v. State, 218 So. 2d 180 (Fla. 3d DCA 1969)…y the Harbor Island Spa, Inc., as custodian or bailee. We view the record as containing sufficient and competent evidence upon which the jury could base such findings and will not invade that province of the jury. See Hoover v. State, Fla.App. 1968, 212 So. 2d 95. We agree with the state’s contention that it is a long-settled rule that a criminal case will not be reversed where the evidence of guilt is ample, unless substantial rights have been violated and injury therefrom is clearly demonstrated, § 924.33…
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Leeman v. State, 357 So. 2d 703 (Fla. 1978)…So. 2d 431 (Fla. 3d DCA 1974). The defendant has failed to demonstrate reversible error on this point. The trial court correctly denied defendant's motion for a judgment of acquittal. See Lynch v. State, 293 So. 2d 44 (Fla. 1974); Hoover v. State, 212 So. 2d 95 (Fla. 3d DCA 1968). There was sufficient evidence to support a finding of guilt. The defendant never denied that he was in possession of a "Blue Box". The question of whether he possessed the device with the requisite criminal intent could be infer…
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Starling v. State, 263 So. 2d 645 (Fla. 3d DCA 1972)…rule stated in Shifrin v. State, Fla.App.1968, 210 So. 2d 18. The second point is likewise unavailing because it is within the trial court’s province as the trier of fact to resolve conflicts in the evidence presented. Hoover v. State, Fla.App.1968, 212 So. 2d 95; Eizenman v. State, Fla.App.1961, 132 So. 2d 763. At this stage of the proceedings, all conflicts and reasonable inferences therefrom are resolved in support of the judgment of conviction. Shuler v. State, Fla.App.1968, 213 So. 2d 312; Walden v. Sta…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mixon v. State, 54 So.2d 190 (Fla. 1951)
- Eizenman v. State, 132 So. 2d 763 (Fla. 3d DCA 1961)
- Belfield v. Lochner, 162 So. 2d 668 (Fla. 3d DCA 1964)
- Steele v. State, 85 Fla. 57 (Fla. 1923)
- Gabriella Mays v. White, 85 Fla. 150 (Fla. 1923)
- Williams v. Smelt, 83 So. 2d 1 (Fla. 1955)