N0T FINAL UNTIL TIME I MAH EXPIRES TO FILE RE-HEARING, A~ *"'{vt AND IF FILED, DISPOSED OF

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1 N0T FINAL UNTIL TIME I MAH EXPIRES TO FILE RE-HEARING, A~ *"'{vt AND IF FILED, DISPOSED OF 7 E&_RS IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENNADY CHIKAUROV, I APPELLATE DIVISION Appellant, CASE NO.: 12-9-AC A _, vs. T E;,., STATE OF FLORIDA, O.1 31* ~-.9 <=Q 3:1] ,_ Jl. u~l F-5;? --J Appellee. :9-1, /. '1 e._-, _,_ W, I \ )1-". H PO O0 1 _=._ 3 _._., Opinion filed: June,20l3., _ 17; 3 On appeal from the County Court for Miami Dade County, Florida, SPENCER MULTACK, Judge. ' Carlos J. Martinez, Esquire, Public Defender and Stephen J. Weinbaum, Esquire, Assistant Public Defender, Attorney for Appellant. Katherine Fernandez Rundle, Esquire, State Attorney and Sonali N. Desai, Esquire, Assistant State Attorney, Attorney for Appellee. Before, THOMAS; SMITH and HANZMAN, JJ. HANZMAN, J. INTRODUCTION A-» Appellant, Gennady Chikaurov ( Appellant or Chikaurov ), challenges his conviction for willfully violating a pretrial release stay away order enjoining

2 him from directly or indirectly contacting with his wife, Elena Chikaurov ( Ms. Chikaurov ). Appellant insists that the trial court erred in denying his motion for acquittal because, in his view: (a) the State s case was wholly circumstantial; and (b) the evidence offered by the State was not inconsistent with his reasonable hypothesis of innocence; that being the claim that his wife entered their residence without his knowledge, while he was in the shower. We review the denial of a motion for judgment of acquittal de nova to determine, as a matter of law, whether the evidence was sufficient to support the charge. Pagan v. State, 830 So. 2d 792 (Fla. 2002).. FACTS ANDPRQCEDURAL HISTORY On July 23, 2011, Sunny Isles police officer Kevin Hones ( Hones ) arrested Appellant for domestic battery on his wife. The next morning Appellant appeared before the Honorable Bertila Soto at a bond hearing and was advised that he could have no contact with his wife, and that he was subject to a stay away order requiring that he stay at least 500 feet away from the victim, the victim s home, or place of employment, and/or school at all times. Appellant was provided a copy of Judge Soto s order.. Approximately three (3) weeks later Hones and his partner, Officer Thomas Philpart ( Philpart ), returned to the residence where the initial arrest occurred. The record is undisputed that in response to their knock Ms. Chikaurov and only 2

3 Ms. Chikaurov came to the door. When asked whether Appellant was home, Ms. Chikaurov advised the officers that he was in -the shower. Ms. Chikaurov testified that she had let herself into the apartment using her key and without Chikaurov s knowledge in order to retrieve some personal belongings. She further testified that Appellant was in shock to find her in the residence when she entered the bathroom to advise him that Hones and Philpart were at the door. When Chikaurov came out of the bathroom and was first observed in the apartment by the officers ~ he was promptly arrested for violating the stay away order. The Information filed by the State charged Chikaurov with: Unlawfully and willfully violat[ing] a condition of pre-trial release when the original arrest was for an act of domestic violence, to wit: BATTERY, by directly or indirectly contacting Elena Chikaurov, in a manner not authorized by Fla. R. Crim. P , Florida Rules of Criminal Procedure and/or going to the residence, school or place of employment of ELENA CHIKAUROV, in violation of S. 74l.29(6), Fla. Stat. The State called three (3) witnesses at trial, the first of which was Hones. He testified that when he knocked on the door it was answered by Ms. Chikaurov, and that when she opened the door he could not see Appellant. Hones first observed Chikaurov in the apartment only after he came out of the bathroom, and 3

4 _ immediately made the arrest. It was Hones intent to re-arrest Appellant if he found him in the apartment. 1 The State s next witness was Philpart. He also testified that when the officers arrived only Ms. Chikaurov came to the door; that Chikaurov later appeared, and that he was promptly arrested. The State s final witness was Assistant State Attorney Jason Pizzo ( Pizzo ). Pizzo, who was present during Appellant s bond hearing, authenticated a DVD I rt recording of Judge Soto advising Appellant that he was subject to a stay away order. Pizzo also identified Judge Soto s written order prohibiting Appellant from having any contact with the victim Ms. Chikaurov as a condition of his pretrial release.2 The State then rested, at which point Appellant moved for judgment of acquittal, asserting that the evidence failed to establish that Chikaurov willfully ' Officer Hones apparently decided to go to the apartment alter being advised that the assistant State Attorney handling the domestic violence case had been unable to reach Ms. Chikaurov. That underlying prosecution was later dropped by the State. 2 The parties spent considerable time debating whether Judge Soto s order orally conveyed directly to Appellant was hearsay, and whether allowing the jury to view the DVD deprived Appellant of his constitutional right of confrontation. The trial court correctly overruled both objections. First, Judge Soto s oral pronouncement clearly was not hearsay, as the order directing that Appellant have no contact" with his wife was not offered to prove the truth of anything Judge Soto said; and whether anything Judge Soto said was true was legally irrelevant. What was relevant is the fact that Judge Soto s words were spoken. See Ehrhardt s Florida Evidence p. 803 fn 25. (the hearsay objection is unavailing when the inquiry is not as to the truth of the words spoken, but merely whether they were in fact spoken ). The fact that Judge Soto spoke the words in Appellant s presence was offered to prove his receipt and knowledge of her order. See, e.g., Koon v. State, 513 So. 2d i253, 1255 (Fla. 1987) ( an out of-court statement is admissible to show knowledge on the part of the listener that the statement was made if such knowledge is relevant to the case ). And because Judge Soto s statement was not hearsay, it afortiori did not constitute testimonial hearsay" implicating confrontation clause concems. See Crawford v. Washington, 541 U.S. 36 (2004). 4

5 violated Judge Soto s order. The State disagreed, maintaining that the evidence established that Appellant willfully violated it [the order] by contacting Ms. Chikaurov and going to her house. The trial court denied the motion, observing that he [Appellant] was present on August 23" [the day of the arrest] at their home, which the jury could consider to be a violation of pre-trial release because he was with her. 3 The defense called one witness, Ms. Chikaurov. She testified that afier the incident on July 23", she returned to Baltimoreto live with her sister and that Appellant continued to reside in their apartment. She testified that on the day Hones and Philpart came to the apartment she had returned without Appellant s knowledge to collect some of her personal belongings, using her key to gain entrance after knocking on the door and getting no answer. When she entered the apartment Appellant was in shower. While in the process of gathering her things she answered a knock on the door finding the officers outside. She advised them that Appellant was in the shower. Ms. Chikaurov again testified that Appellant appeared shocked. to find her in the apartment. Her testimony was unrebutted. Upon resting the defense again moved for judgment of acquittal, asserting that no reasonable fact finder could find, beyond a reasonable doubt, that Appellant 3 The Court s stay away order did not preclude Appellant from being at any particular place [.e., address], including the address at which he was arrested. Rather, it merely prevented him from going within "500 feet of the victim's home. No evidence at trial established who owned (or leased) the apartment Chikaurov was arrested in, and the undisputed evidence was that Ms. Chikaurov did not reside there on the date of the arrest. Thus, the offense if any was committed was Appellant intentionally being within 500 feet oi the victim herseif. 5

6 willfully and knowingly violated the stay away order. The State again disagreed, emphasizing that when Ms. Chikaurov opened the door she knew he [Appellant] was in the bathroom, and they were together at the same address that they had been previously both living together. The trial court denied Appellant s second motion for acquittal, opining that it was up to the jury to decide whether or not they believed he willfully violated the stay away order or if they believed it was pure coincidence that his wife showed up at the same time the police showed up. The jury obviously believing the former convicted. This appeal ensued. GOVERNING LAW Florida is one of the few jurisdictions that continues to apply what has been described as a special standard of appellate review when a criminal conviction is based solely upon circumstantial evidence. See Knight v. State, I07 So. 3d 449 (Fla. 5th DCA 20l3). This so-called special standard of review dictates that if the State s evidence of guilt is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant s reasonable hypothesis of innocence. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002); State v. Sims, 110 So. 3d ll3, 115 (Fla. lst DCA 2013) ( A criminal defendant is entitled to a judgment of acquittal if there is no direct evidence of guilt and if the circumstantial evidence does not exclude every 6

7 reasonable hypothesis of innocence ). Our Supreme Court, in describing this rule, has made it clear that: Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. ' State v. Law, 559 So. 2d I87, 188 (Fla.l989). See also Orme v. State, 677 So. 2d 258, 262 (Fla. 1996) ( A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt ). In Knight, Judge Lawson persuasively argues that this special standard of review is misleading and confusing, as well as unnecessary, in part because it ignores the [inverse] correlation between the strength of the circumstantial evidence and the reasonableness of various hypothesis of innocence. Knight, 107 So. 3d at 458. In his view, requiring that the State present evidence from which the jury can exclude every reasonable hypothesis except that of guilty, see Orme, supra, is unhelpful as an analytical tool, Knight, 107 So. 3d at 459, and improperly infringes upon the role of the jury. Other appellate Judges agree. See, e.g.,e Martin v. State, 107 So. 3d 561 (Fla. lst DCA 2013) (Thomas J., dissenting) (...I fully concur with the opinion in [Knight]... that the special standard of appellate review in circumstantial-evidence cases is not supported by law or logic ). A 7

8 Although this oft criticized special standard of review has been rejected by all federal courts, as well as most state courts, see Knight, supra at p. _456, our Supreme Court continues to mandate its use where proof of guilt is wholly based on circumstantial evidence. Jaramillo v. State, 417 So. 2d 257 (Fla. 1982). It is therefore our duty to reverse Appellant s conviction if: (a) it was in fact based wholly on circumstantial evidence, and (b) the State failed to present evidence from which the jury [could] exclude every reasonable hypothesis except that of guilty. Orme, 677 So. 2d at 262. ANALYSIS The State s claim notwithstanding, we have no hesitancy concluding that the evidence of Appellant s guilt was entirely circumstantial. Circumstantial evidence is proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist. Baugh v. State, 961 So. 2d 198, 203 n. 5 (Fla. 2007) (quoting Davis v. State, 90 So. 2d 629, 631 (Fla. 1956). In contrast to direct evidence which, if believed, resolves a matter at issue, circumstantial evidence requires an additional inference to prove the material fact. Charles W. Ehrhardt, Florida Evidence, (2012 Ed.) The ultimate fact in dispute here was whether Appellant willfully violated Judge Soto s order by intentionally having contact with Ms. Chikaurov. See Manon v. State, 740 So. 2d 1253 (Fla. 3d DCA 1999) (a violation of a no contact 8