KENNETH WILLINGHAM v. STATE OF FLORIDA

K
          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        KENNETH WILLINGHAM,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-1883

                             [March 31, 2021]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Laura Johnson, Judge; L.T. Case No. 17CF007320AMB.

   Carey Haughwout, Public Defender, and Nancy Jack, Assistant Public
Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and MaryEllen M.
Farrell, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The defendant appeals his conviction and sentence on charges of
robbery with a firearm and felon in possession of a firearm. He raises eight
issues, which we find lack merit. We write, however, to address issues
four and eight. In issue four, the defendant argues the trial court erred in
admitting video surveillance tapes from the shopping center where the
robbery took place. In issue eight, the defendant argues the trial court
erred in sentencing him to life in prison as statutorily mandated because
the sentence is unconstitutional. We disagree with him on both issues
and affirm. We affirm on the remaining issues without further comment.

    The State charged the defendant with one count of robbery with a
firearm and one count of felon in possession of a firearm. The charges
arose when the defendant approached the store manager with a gun as he
stood outside of his place of employment, a Metro PCS store. The
defendant forced the store manager to enter the store and open the
register. The store manager identified the man that pointed a gun to his
back in the surveillance video.
   The information alleged that in July 2017, the defendant took money
from a Metro PCS store by use of force or violence while carrying a firearm.
The State obtained surveillance video from the cameras placed inside the
Metro PCS store and around the shopping center. Before trial, the defense
moved in limine to exclude the surveillance videos and law enforcement
testimony about the videos’ contents. The defense argued law enforcement
could not testify about the videos’ contents because they did not personally
witness the crime. The trial court granted the motion regarding the
testimony, but denied it as to the video surveillance tapes.

   At trial, a sales representative testified she had just parked at the
shopping center when she saw a stocky, African American man running
from the direction of the Metro PCS store toward a dark-colored SUV. She
confirmed that a portion of the surveillance footage accurately depicted
her vehicle and the man she saw running to the SUV. She also testified
the man was shirtless and wearing jeans, but his face was covered. She
saw him leaving the store, but she did not see a gun.

    The store manager noted the robber was masked and had a firearm.
He believed the person had socks on his hands and saw “like small dreads
at the end by his neck.” After the store manager handed him the money,
the robber told him and another store clerk to walk into the bathroom,
count to ten, and then leave.

   The store manager did as he was told. After counting to ten, he came
out of the bathroom and walked outside the store. He saw a black SUV
driving away and heading north on Federal Highway. The store manager
called the police.

   When law enforcement reviewed the surveillance video from the
shopping center’s cameras, they saw a black SUV consistent with the
description given by the store manager and sales representative. The SUV
was a black Lincoln Navigator.

   The lead detective testified he obtained the license tag number from the
surveillance video. The video showed a dark SUV with a white piece of
paper attached to it. He tracked the car to a rental company. Law
enforcement used GPS information to locate the car. The car was found
inside an apartment complex in the Victoria Woods area, close to the
defendant’s girlfriend’s home. Police found a white piece of paper behind
the car’s windshield, near the driver’s side.

    The girlfriend testified she was dating the defendant at the time of the
offense. They both drove the Lincoln Navigator. They rented the car

                                     2
“under the table” in Miami. The police impounded the car down the street
from her residence.

    The girlfriend further testified that at the time of the offense, she worked
as a security guard. Her boss provided her with a firearm. She would not
allow the defendant to touch the gun, but admitted she would leave it in
her room where the defendant would sometimes sleep.

   The police confiscated the gun. A detective testified the gun in the
surveillance video was the same make and model as the gun taken from
the girlfriend’s house.

    The detective obtained a warrant for the defendant’s cell phone records.
Investigators learned from those records that the defendant called the
girlfriend’s number several times immediately after the robbery. Law
enforcement also obtained information from the Lincoln Navigator’s GPS
and Bluetooth systems. The information showed that, on the day of the
robbery, between 9:00 a.m. and 11:15 a.m., the defendant’s phone made
ten phone calls to the girlfriend’s phone number.

   The Lincoln Navigator’s GPS system confirmed the car travelled from
the Victoria Woods complex to the Metro PCS store on the day of the
robbery. According to the GPS information, the car then travelled north
on Federal Highway.      The investigators obtained cell phone tower
information that was consistent with the information obtained from the
Lincoln Navigator’s GPS system.

   The jury found the defendant guilty as charged. The trial court found
the defendant qualified as a Prison Releasee Reoffender (“PRR”) and
sentenced him to a mandatory term of life in prison with a ten-year
minimum for carrying a firearm. From his conviction and sentence, the
defendant now appeals.

      •   The Metro PCS and Shopping Center Surveillance Films

   The State’s Exhibit 1 contained video footage recorded by cameras
placed around the shopping center and inside the Metro PCS store. The
store owner explained he called the shopping center’s owner, who then
gave him a code to access the storage area in the back of the building.
Boynton Beach police officers were with him when he retrieved the center’s
surveillance video.




                                       3
   Before the State introduced Exhibit 1, defense counsel argued the
footage from the shopping center’s outside cameras was not properly
authenticated:

      Defense Counsel: We would be objecting to the videos. The
      witness just testified that he has sixteen video cameras inside
      the store, two outside. The ones around the building were
      managed by the [shopping center], not him. Without being an
      eyewitness to the crime, he can’t testify whether there is a fair
      and accurate representation, and no other witness has done
      that.

The State argued the videos were admissible under the silent witness
theory. It explained that all the store owners had access to the center’s
surveillance videos:

      Trial Court: He pulled the videos from where? Where do the
      outside videos come from? Were they somebody else's or were
      they under his care and control?

      State: It’s not necessarily under his—well, I think all of the
      businesses have the ability to pull the videos. That’s what it
      is. Because the owner of the plaza gives them permission.

      Trial Court: You don’t have to have—you’ll have to clarify
      that.

      State: All right.

   The State continued its examination and asked the store owner how he
gained access to the center’s surveillance cameras and if he had done
anything to distort the videos. The store owner explained how he obtained
the videos and denied doing anything to them. The trial court then
admitted the State’s Exhibit 1 in its entirety.

   The defendant argues on appeal that the trial court abused its
discretion in admitting the shopping center’s surveillance videos because
they were not properly authenticated. He claims the error was harmful
because the State used the video to identify the defendant and the Lincoln
Navigator’s tag number. He suggests the videos should have been
authenticated by a witness responsible for the videotape system.

   The State responds that video evidence can be authenticated, even if
the State does not call the video’s creator. The video’s distinctive

                                     4
characteristics and content, in conjunction with the circumstantial
evidence, are sufficient to authenticate the video. Finally, the State argues
the trial court properly admitted the evidence based on the silent witness
theory because the video was reliable.

   “The standard of review for a trial court’s determination regarding
authentication of evidence is abuse of discretion.” State v. Torres, 

304 So.
3d

781, 782 (Fla. 4th DCA 2020) (citing Mullens v. State, 

197 So. 3d 16

,
25 (Fla. 2016)).

   We have held that “the ultimate determination of the authenticity of
evidence is a question for the fact-finder, and that ‘authentication for the
purpose of admission is a relatively low threshold that only requires a
prima facie showing that the proffered evidence is authentic.’”

Id. at 783

(quoting Lamb v. State, 

246 So. 3d 400

, 408 (Fla. 4th DCA 2018)).
Evidence may be authenticated based on circumstantial evidence,
extrinsic evidence, or by showing that it meets the requirements for self-
authentication. See

id.

Here, the State

made a prima facie showing that the shopping center’s
surveillance video footage was authentic. The store manager testified the
videos were a fair and accurate representation of what happened that day.
The sales representative testified the video footage accurately depicted her
vehicle and the man running to the SUV. Similarly, the store manager
testified he saw a dark SUV consistent with the surveillance video. The
footage obtained from the store’s inside cameras was consistent with the
shopping center’s outside footage. The State established the footage was
reliable.

    The footage had a time and date stamp. The store owner testified a
passcode is needed to access the shopping center’s video recordings and
he did not edit or tamper the recordings. And, law enforcement personnel
were present when he retrieved the footage. See Richardson v. State, 

228
So. 3d 131

, 136 (Fla. 4th DCA 2017) (holding surveillance video was
properly authenticated where video included date and time stamp, there
was no evidence video was tampered with, and video was kept in a locked
office).

   In sum, the State authenticated the video surveillance tapes. The trial
court did not abuse its discretion in admitting them into evidence.

      •   The Mandatory Sentence Imposed

   The defendant argues the mandatory life sentence based on the PRR

                                     5
statute violates the constitutional prohibition against cruel and unusual
punishment because he committed the past qualifying offense when he
was a juvenile. Although he was 16 when he committed the predicate
offense, he was 25 when he committed the current offense.

   The defendant relies on Graham v. Florida, 

560 U.S. 48

(2010), where
the United States Supreme Court held the Eighth Amendment prohibits
imposing a life without parole sentence on juvenile offenders not convicted
of homicide. He claims Graham and its progeny should apply with equal
force to offenders in their early twenties. The State responds that Graham
cannot be extended by this court and the defendant therefore is not
entitled to relief.

    Review of a sentence in the context of a constitutional violation is de
novo. Guzman v. State, 

68 So. 3d 295

, 297 (Fla. 4th DCA 2011). “However,
when considering Eighth Amendment issues, appellate courts must yield
‘substantial deference to the broad authority that legislatures necessarily
possess in determining the types and limits of punishment for crimes, as
well as to the discretion that trial courts possess in sentencing convicted
criminals.’” Andrews v. State, 

82 So. 3d 979

, 984 (Fla. 1st DCA 2011)
(footnote omitted) (quoting Solem v. Helm, 

463 U.S. 277

, 290 (1983)).

    The PRR statute provides that one who commits one of the enumerated
felonies, including robbery, within three years of release from a corrections
facility, qualifies as a PRR. § 775.082(9)(a)1.g., Fla. Stat. (2016). Once the
State establishes the defendant as a PRR, a trial court may no longer
sentence the defendant under the sentencing guidelines, but rather must
sentence under the PRR statute.

Id. § 775.082(9)(a)3. For

a felony
punishable by life—as is the robbery with a firearm charge in this case—
the defendant must be sentenced to life imprisonment.

Id. §
775.082(9)(a)3.a.

Under

the PRR statute, the trial court was therefore required to
sentence the defendant to life imprisonment. The State established the
defendant as a PRR under the statute, and the felony he committed within
the three years of his release was punishable by life.

   While the defendant’s argument is compelling, we are bound by the
statute’s plain language. As Judge Ciklin noted in a similar case:

      Although [the defendant]’s argument is thoughtful and
      forceful, reversal is simply not supported by the current state
      of the law. . . . However, criminal justice reform is gaining
      popularity around the country, including with the passage of

                                      6
      the Federal First Step Act of 2018, Pub. L. No. 115-391, 132
      Stat. 5194 (2018), which is largely aimed at recidivism
      reduction. In light of this federal shift toward reform, perhaps
      the Florida Legislature will in the future consider exclusion of
      sentences served for underage crimes from qualifying under
      recidivist statutes, or at least grant sentencing judges the
      discretion to decline to apply such statutes where a predicate
      offense was committed by a juvenile.

Morris v. State, 

290 So. 3d 1022

, 1024 (Fla. 4th DCA 2020) (Ciklin, J.,
concurring). Until then, there is no judicial discretion to impose a different
sentence.

   For the foregoing reasons, we affirm and decline to address the
remaining issues raised.

   Affirmed.

GERBER and KUNTZ, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                      7

Add comment

By

Recent Posts

Recent Comments