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Date: 01-13-2021
Case Style:
KENNETH JAMES KEGLER vs STATE OF FLORIDA
Case Number: 19-3479
Judge: Morris Silberman
Court: IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
Plaintiff's Attorney: Ashley Moody, Attorney General,
Tallahassee, and Cynthia Richards,
Assistant Attorney General, Tampa
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Lakeland, FL - Criminal defense attorney represented Kenneth James Kegler with appealing an order revoking his community control and the resulting sentences in two circuit court cases, one for felony petit theft and one for grand thef.
After Kegler entered a guilty plea in the two circuit court cases on May 20,
2019, the trial court imposed concurrent sentences of twenty-four months of community
control followed by twenty-four months of probation. Officer Graham filed an affidavit of
violation of community control alleging that Kegler violated condition 16 by failing to
remain confined to his approved residence. The affidavit asserted that Kegler was not
home when a home visit was attempted at 4:50 p.m. on May 20, 2019, and that Kegler
did not have the prior approval of his officer to be away from his residence. The
affidavit was dismissed, and Kegler continued on community control.
On June 27, 2019, Officer Walthour filed an affidavit alleging the violation
of community control that is at issue here. The affidavit alleged that Kegler violated
condition 16 by failing to remain confined to his approved residence in that Kegler was
away from his residence at 5:37 a.m. on June 21, 2019, without prior approval when
Officer Walthour attempted a home visit.
At the violation hearing, Officer Walthour testified that he supervised
Kegler and that condition 16 of his community control required that he remain confined
to his residence unless his schedule said otherwise. Officer Walthour testified that the
prior officer, Officer Graham, had instructed Kegler on the conditions of his supervision.
Kegler's schedule for June 21, 2019, reflected that he was to be home all day.
Officer Walthour went to Kegler's residence at 5:37 a.m. on June 21,
2019. The officer rang the doorbell and knocked "[a]t least three times." The officer
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signaled his partner to call Kegler's cell phone as a courtesy, and Kegler did not answer
his cell phone. His partner made two phone calls. When asked if there were any cars
at the residence, Officer Walthour stated that it was "an apartment complex so there
were multiple cars out there." Officer Walthour was unable to make contact with Kegler
at that time.
Kegler's wife, Jessica Kegler, testified for the defense. Mrs. Kegler works
for Lyft, and on June 21, 2019, she was in her car at 5:25 a.m. getting ready to leave for
an airport pickup. She sat in her car for five or six minutes before she left. At 5:25 her
husband was standing in front of her car. When she pulled out of the complex five or
six minutes later, she saw him turn around and walk back inside. It was still dark
outside when she left.
Her husband is on medication for mental health issues, and when he
takes the medicine she is unable to wake him the next day. On days that he does not
take his medications, he gets up with her. He did not take his medication the prior night,
but she described him as groggy that morning. Her husband had been up for the last
two days because he feared missing a visit from his officer. They had installed a
doorbell because it was hard to hear in the back of the townhouse. There are three
separate rooms before getting to the bedroom in the very back.
On cross-examination, Mrs. Kegler said she could see the door of her
residence from her car, that she was in her car at 5:25, and that she left "[a]bout six
minutes later." Her husband always walks her out because of snakes. At 5:31 when
she was pulling out, her husband was turning back and going inside.
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Kegler testified that he was at home on June 21, 2019, at 5:37 a.m. He
walked his wife out to her car at 5:25 a.m. It is part of his routine to walk her outside
because it is dark and there are snakes. After she pulled away, Kegler went back
inside, locked the door, and set the alarm. He went to his bedroom in the back of the
residence, laid down, watched television, and fell asleep. He had not taken his
medications that make him groggy "because [he] had been violated one time for not
answering the door so [he] was trying to stay awake" in case his supervising officer
came to his residence.
The trial court found Kegler in violation and noted that Kegler had "tailored
his story to show he was up." The trial judge stated, "[T]he man said I believe truthfully
he went and watched television so it was never this sleepy business." The trial court
determined that Keglers' own testimony showed that Kegler "wasn't passed out or
sleeping." The trial court mentioned an earlier violation for not being at home that the
court had dismissed and said the court had given Kegler "a freebie." The court had
"warned [Kegler] not to come back" and "to open the door next time or [he was] going to
go to prison." The court also stated that if Kegler's phone was on and he was up, he
would have heard the phone call at 5:37. Kegler said he would have answered the
phone if he had heard it and "would have come to the door if [he] had heard the bell."
The court stated that it did not believe Kegler's story and that "[his] wife's testimony as
distinct as it is sunk [his] ship, okay, because she puts [him] up at that time." The trial
court revoked Kegler's community control and imposed concurrent sentences of sixty
months in prison.
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Kegler contends on appeal that the State failed to prove a willful and
substantial violation of community control based on Kegler's failure to answer his door
when his supervising officer visited at 5:37 a.m. [Corey] Brown v. State, 280 So. 3d
1117 (Fla. 2d DCA 2019), and other cases from this district support Kegler's contention
that the State failed to meet its burden to prove that he committed a willful and
substantial violation of condition 16 for being away from his approved residence without
the permission of his supervising officer.
The State has the burden to prove a violation of community control by the
greater weight of the evidence. Brown, 280 So. 3d at 1118; Bravo v. State, 268 So. 3d
193, 196 (Fla. 2d DCA 2018). "Evidence that gives rise to multiple reasonable
inferences, only one of which establishes a violation, does not meet this standard."
Brown, 280 So. 3d at 1118. Upon appellate review, we must first determine whether
competent, substantial evidence supports the trial court's finding of a willful and
substantial violation. Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013). When
competent, substantial evidence supports a finding of a willful and substantial violation,
we then review the decision to revoke supervision for an abuse of discretion. Id. at 623.
When the inference that a person under supervision "was not home is just
one of several reasonable inferences that arise from the evidence of his failure to
answer the door, the greater weight of the evidence [does] not establish a willful and
substantial violation" for being away from an approved residence. Brown, 280 So. 3d at
1120. In Brown, the community control officer testified that she went to Brown's
approved residence when he should have been home at 6:50 a.m. Id. at 1118. She
first called his cell phone, but he did not answer. She then knocked on his door "several
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times very hard," yet still no one answered. Id. She left a note in his door jamb advising
Brown to call her immediately, but the officer never received a call back from Brown.
Brown testified that he was at home but asleep and did not hear his phone
ring or a knock on the door. Id. He also did not find the note from his officer when he
left for work. Brown usually woke up between 7:30 and 7:45 to get ready for work. His
bedroom at the back of his residence was "about seventy-five feet from the front door."
Id.
Rejecting Brown's explanation for why he did not answer the door, the trial
court found Brown in willful and substantial violation of his community control. Id.
Relying on [Tamika] Brown v. State, 813 So. 2d 202 (Fla. 2d DCA 2002), this court
determined that the State's evidence was legally insufficient when it presented
testimony "that no one answered the door in response to a knock." [Corey] Brown, 280
So. 3d at 1119. This court explained as follows:
Even if the trial court rejected Brown's testimony that he was
asleep, the record contains no direct evidence that Brown
was not home. Instead, the only direct evidence was that no
one answered Brown's door when Shaw knocked. From this
evidence, the court could certainly infer that Brown was not
home. But it could just have reasonably inferred that Brown
was asleep, in the shower, or otherwise occupied. The State
did not present any evidence to show how long Shaw stayed
outside Brown's door or how long she continued to knock.
Id. Further, there was no evidence that the knocking was so loud that it woke
neighbors. Id.
This court concluded that "the inference that Brown was absent from his
home was simply one of several reasonable inferences that could have been made from
the State's evidence, rendering the State's evidence legally insufficient to prove a
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violation of community control." Id. at 1120. Observing that a supervising officer often
visits "a residence early in the morning or late at night," this court gave the following
warning:
[T]he approach of simply knocking on the door and then
declaring a violation when no one answers provides strong
potential defenses to the person being supervised. If the
supervising officer truly believes that a person under
supervision is not home, it would behoove that officer to
acquire evidence that corroborates the alleged absence from
the residence.
Id.
In [Tamika] Brown, this court reversed an order revoking community
control when the State established only that at 2 a.m. "no one answered the door." 813
So. 2d at 204. Brown's supervising officer had received a report that Brown had been
going to someone's house "at all hours of the night" to harass the residents. Id. at 203.
Brown's officer and a deputy went to her residence at 2 a.m., and the officer knocked on
the door. When no one answered, the officer knocked with her flashlight, but still no
one answered. Although no lights were on, they could hear a television inside. After
waiting three or four minutes, the officer and deputy left. Id.
Brown and her family testified that they were at home and sleeping at 2
a.m. on the date in question. Id. A family member testified that the noise of the
television and air conditioner probably drowned out the noise of the knocking.
This court concluded that "the State produced no evidence to prove that
Brown was not at home for the officer's 2 a.m. visit." Id. at 204. "Establishing that no
one answered the door at that unreasonable hour of the morning was insufficient to
prove" that Brown violated her community control by being away from her residence. Id.
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In Edwards v. State, 296 So. 3d 986, 987 (Fla. 2d DCA 2020), this court
again determined that the State failed to prove that a willful and substantial violation
occurred when an officer testified that she did two curfew checks and no one answered
either time. The officer conducted one check at 5:00 a.m. and a second check five days
later around 5:30 a.m. Both times the front door was "slightly ajar" when the officer
arrived, and she knocked and called into the house. Id. The first time the officer heard
a television but saw no one. The second time a person she did not recognize was
sleeping on the couch, but he did not move when she knocked or called out.
Edwards testified that he had been sleeping at home when the officer
made the two curfew checks. Id. Other family members testified that they had also
been at home but did not hear anyone knocking or calling out.
This court determined that the State's evidence was legally insufficient. Id.
at 989. Notably, the officer's testimony showed "that she never successfully roused
anyone by knocking and calling into the house," even though a person was sleeping on
a couch only a few feet away on the officer's second curfew check. Id.
Here, the State failed to present evidence of how long the officer stayed
outside the door, how long he knocked, or how hard he knocked. In addition, the officer
did not state that he made any other efforts to attract attention, such as going to a
different part of the residence to knock on a window. See [Corey] Brown, 280 So. 3d at
1119-20 (distinguishing Hurst v. State, 941 So. 2d 1252 (Fla. 1st DCA 2006), where the
officer pounded on the wall of the trailer by Hurst's bedroom and knocked so loudly that
she woke the neighbors). There were multiple reasonable inferences that could be
taken from the State's evidence, including that Kegler was not home or that Kegler was
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awake but did not hear the officer at the door when he had the television on in the back
bedroom. The State's evidence was legally insufficient to prove by the greater weight of
the evidence a willful violation of community control, even though the trial court had
found Kegler to not be a credible witness in some respects, such as "this sleepy
business." See [Corey] Brown, 280 So. 3d at 1119 ("Even if the trial court rejected
Brown's testimony that he was asleep, the record contains no direct evidence that
Brown was not home.").
In addition, the trial court did not state that it found Mrs. Kegler to not be a
credible witness. She observed Kegler present and walking into the residence at 5:31,
six minutes before the officer arrived. It is equally reasonable to infer that Kegler then
turned around and walked away after his wife left as it is to infer that he went inside to
the back of their residence and did not hear the officer when he was in bed and
watching television. The trial court even stated at one point that it believed that Kegler
truthfully stated that "he went and watched television," which is inconsistent with the
State's position that Kegler was not at the residence.
The State admits that the facts of [Corey] Brown are very similar to the
present case but contends that the case is distinguishable because in Brown there was
no testimony conflicting with the defendant's explanation that he had been asleep and
not heard the officer. The State argues that "Kegler admitted to being awake and
receiving the phone call at 5:37 in the morning and chose not to answer the door or
phone."
Kegler never testified that he chose not to answer the door or phone.
Rather, he testified that no one came to the door at 5:37 on that date. He testified that
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his phone was turned on, he checked it, and he saw that he had missed a call. He
stated, "I would have answered it if I had heard it." He also stated that he would have
answered the door if he "had heard the bell."
Outcome: Based on these circumstances, "the inference that [Kegler] was absent
from his home was simply one of several reasonable inferences that could have been
made from the State's evidence, rendering the State's evidence legally insufficient to prove a violation of community control." [Corey] Brown, 280 So. 3d at 1120. We
conclude that the State failed to submit competent, substantial evidence that Kegler was not at home when the officer rang the doorbell and knocked at 5:37 a.m.
Therefore, we reverse the order revoking community control and the resulting sentences and remand for the trial court to reinstate community control.
Plaintiff's Experts:
Defendant's Experts:
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