DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

OSCAR E. CASTANON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D12-4025

[July 30, 2014]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Indian River County; Robert L. Pegg, Judge; L.T. Case No. 312011CF 

000783A.

Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public 

Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, 

Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING EN BANC

PER CURIAM.

We deny the motion for rehearing en banc, withdraw our previously 

issued opinion and substitute the following in its place.

Appellant challenges his conviction for burglary on the grounds that 

the court admitted prejudicial statements regarding threats he made 

against the victims. He also claims that the court erred in overruling an 

objection to the prosecutor’s closing argument where the prosecutor asked 

the jury to improperly speculate on the facts. On both issues, we conclude 

that the trial court did not abuse its discretion in overruling the objections.

Appellant rang the doorbell of the victims’ home one evening. The 

victims had just moved to the house and were not expecting visitors. Upon 

the wife opening the door, the appellant asked for directions to another 

address. The wife did not know the location, but her uncle who was also 
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present offered some assistance. At that point, the wife noticed that 

appellant was looking past her and into the interior of her house while just 

standing at the door, staring and saying nothing. As he continued to look 

past her, he removed his shirt and the expression on his face changed to 

scary and angry. He suddenly charged at the front door. The wife worked 

to close the door, crying hysterically as appellant pushed and kicked 

against it. Eventually, with the help of her uncle, she succeeded in 

shutting the front door of her home, although in the process she injured 

her hand.

Appellant, however, did not give up and kicked the door in. He entered, 

only to be confronted with the husband who demanded that appellant 

leave. Disregarding the warnings, appellant took approximately three 

paces inside the house with a crazed, very aggressive look on his face, 

making aggressive moves toward the husband. The husband then threw 

appellant out of the house, but the altercation did not end. Appellant 

picked himself up, and when he made motions attempting to reenter the 

house, the husband pinned him to the ground. During this time, appellant 

kept yelling at the husband and threatened him, his wife and children. He 

even asked the husband if he knew what discovery was and that he would 

get their address and come and kill them. This continued even after the 

police arrived, and appellant kept repeating the address of the victims.

Prior to trial, appellant moved in limine to exclude the statements 

regarding the threats to the victims and the statement regarding discovery. 

The state argued, and the court agreed, that they were relevant to show 

appellant’s intent to commit an assault when entering the home, as well 

as being inextricably intertwined with the entire event. Counsel did not 

mention, nor was an objection lodged, as to statements that appellant 

continually repeated the victims’ address at the scene. Thus, objections 

to these statements were not preserved for appeal.

As to the statement about discovery and appellant’s intent to get the 

victims’ address through discovery, the court concluded that it was 

unlikely that the jury would even know what discovery was. Moreover, it 

agreed that the statements were relevant to intent.

The trial proceeded, at which the husband, wife, and officers on the 

scene testified. The appellant elected not to testify. The jury found him 

guilty as charged, and the court adjudicated appellant and sentenced him 

to twenty-five years in prison. This appeal follows.

Appellant claims that the court erred in admitting his statements about 

seeking the victims’ address through discovery as well as his continual 
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repetition of the victims’ address after he was arrested. Counsel failed to 

object to some of appellant’s threatening statements, thus not preserving 

the issue for appeal. As to those to which counsel did object, we conclude 

that the threats did have some relevancy as to the issue of intent to commit 

an assault, an essential element to the charge of burglary.

Generally, the test for the admissibility of evidence is relevance.

§ 90.402, Fla. Stat. (2012). Relevant evidence is defined by statute as 

“evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. 

(2012). “Relevant evidence is inadmissible if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of 

issues, misleading the jury, or needless presentation of cumulative 

evidence.” § 90.403, Fla. Stat. (2012). As such, “the prerequisite to 

admissibility is relevancy.” Dorsett v. State, 944 So. 2d 1207, 1212 (Fla. 

3d DCA 2006). “In determining relevance, we look to the elements of the 

crime charged and whether the evidence tends to prove or disprove a 

material fact.” Guerrero v. State, 125 So. 3d 811, 814 (Fla. 4th DCA 2013) 

(citation omitted).

In order to prove a burglary with the intent to commit an assault, the 

state was required to prove the crime of assault, which was in violation of 

section 784.011(1), Florida Statutes (2011). The section provides:

An “assault” is an intentional, unlawful threat by word or act 

to do violence to the person of another, coupled with an 

apparent ability to do so, and doing some act which creates a 

well-founded fear in such other person that such violence is 

imminent.

(Emphasis added).

Here, appellant’s defense was that he innocently walked up to the 

victims’ house in the middle of the afternoon, and his sole intent was to 

calmly get directions. Although appellant did not testify, defense counsel, 

in both opening and closing, claimed that it was only after appellant had 

the door slammed in his face, was knocked down, and was punched in the 

mouth that he got upset. The defense made clear that appellant did not 

strike anyone at any time and, at most, was guilty of trespass by refusing 

to leave after he had lawfully entered the dwelling.

Because it was disputed whether appellant broke down the door prior 

to the husband physically restraining him, appellant’s statements, 

particularly those made during the entire sequence of events consisting of 

the burglary and assault, were offered to prove a material fact at issue and 
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relevant to adequately describe what had occurred. See Griffin v. State, 

639 So. 2d 966, 968 (Fla. 1994) (“It is admissible under section 90.402 

because ‘it is a relevant and inseparable part of the act which is in issue.... 

[I]t is necessary to admit the evidence to adequately describe the deed.’ ”)

(quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)). 

Moreover, appellant’s statements were all made in a very limited period of 

time: during the brief period of time he was inside the dwelling and 

immediately after having been physically removed by the husband. As 

such, his continued threats outside the dwelling were inextricably 

intertwined with the assault for which he was charged. See Ward v. State, 

59 So. 3d 1220, 1222 (Fla. 4th DCA 2011) (recognizing rule that evidence 

is inextricably intertwined if it is necessary to adequately describe the 

deed); Dorsett, 944 So. 2d at 1213 (concluding that evidence of a prior 

uncharged hand-to-hand transaction was properly admitted pursuant to 

section 90.402 as relevant evidence, evidence which was inextricably 

intertwined with the crime charged and offered to establish the entire 

context of events for the charged offense).

In sum, the preserved statements at issue were relevant to describe a 

material fact at issue—appellant’s intent. Further, they were inextricably 

intertwined with the charged assault and relevant to adequately describe 

the deed. Finally, the relevancy of those statements outweighed any unfair 

prejudice, as the jury had already heard appellant’s threats to kill the wife 

and children; this evidence was necessary to show his degree of hostility 

toward the victims, which created a “well-founded fear” in them—an 

element of the assault for which he was charged. See § 784.011(1), Fla. 

Stat. (2011). Moreover, some of the statements made post-arrest, which 

might have been objectionable, were either not objected to or were 

cumulative to properly admitted statements. Thus, the trial court did not 

abuse its discretion in overruling the objections to those statements.

We do note appellant’s argument that the statement regarding seeking 

the victims’ names through discovery was particularly prejudicial. During 

deliberations, the jury asked the court whether the appellant could obtain 

the jurors’ names and addresses through the court file. The court 

instructed the jury not to consider this in their deliberations. While the 

comment about discovery might have triggered this question, it could also 

have been triggered by the testimony of the officers and the victims that 

the appellant kept repeating the address of the victims, causing the victims

to permanently move from that address. That testimony was not objected 

to at trial. Thus, we cannot conclude that the comment regarding 

discovery was so prejudicial as to vitiate the trial.
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As to appellant’s second claim, that in the prosecutor’s closing 

argument he asked the jury to speculate on improper matters, we disagree 

and conclude that the prosecutor was simply asking the jury to make 

inferences from the evidence to conclude that appellant had committed an 

assault. “Closing argument is an opportunity for counsel to review the 

evidence and to explicate those inferences which may reasonably be drawn 

from the evidence.” Hildwin v. State, 84 So. 3d 180, 191 (Fla. 2011) 

(quoting Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007)). Moreover, “[a] 

prosecutor’s argument should be examined in the context in which it is 

made.” Stancle v. State, 854 So. 2d 228, 229 (Fla. 4th DCA 2003) (citing 

McArthur v. State, 801 So. 2d 1037, 1040 (Fla. 5th DCA 2001) and Nelson 

v. State, 416 So. 2d 899, 900 (Fla. 2d DCA 1982)). In reviewing allegations 

of improper argument, appellate courts should recognize that “[a] trial 

court has discretion in controlling opening and closing statements, and its 

decisions will not be overturned absent an abuse of discretion.” Merck,

975 So. 2d at 1061. No abuse of discretion has been shown.

For the foregoing reasons we affirm the conviction and sentence.

WARNER, LEVINE, JJ., and TUTER, JACK, Associate Judge, concur.

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