FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D20-3627

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LAYTON TODD MIZELL,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

_____________________________

On appeal from the Circuit Court for Nassau County.

James Daniel, Judge.

September 21, 2022

B.L. THOMAS, J.

Layton Todd Mizell appeals his conviction for DUI 

manslaughter. He asserts that the trial court reversibly erred by 

excluding evidence of the deceased’s intoxication, which 

improperly deprived him of his defense that the deceased’s

impairment was the sole cause of the fatal collision.

Before trial, the State filed a motion in limine seeking to 

exclude evidence that the victim’s blood contained alcohol and 

drugs, and that her vehicle contained alcohol bottles, hydrocodone 

containers, and other items indicative of impaired driving. The 

victim’s blood-alcohol content was 0.17, twice the legal limit for 

which a presumption of impairment applies under section 
2

316.1934(2)(c), Florida Statutes (2018).1 The victim also had active 

ingredients of marijuana and opioid analgesics in her body at the 

time of the accident.

The State argued that this evidence was barred under section 

90.404, Florida Statutes (2018), as an impermissible use of 

character evidence, and under section 90.403, Florida Statutes 

(2018), as more prejudicial than probative. In response, the 

defense argued that this evidence was highly probative to show 

causation, and thus its probative value outweighed its prejudicial 

effect. The trial court granted the State’s motion, relying on 

Edwards v. State, 39 So. 3d 447 (Fla. 4th DCA 2010), reasoning 

that without competent evidence of the victim’s contribution to the 

accident, evidence of her possible impairment was not probative of 

any material issue.

At trial, the State presented two witnesses who saw the 

accident. The accident occurred at night on Lem Turner Road in 

Nassau County. Appellant was driving northbound. The victim 

was traveling southbound. The road is a two-lane road, and the 

speed limit is 45 miles per hour.

The State’s first witness was driving behind Appellant for 

eight to ten minutes. The witness described Appellant’s driving 

pattern as erratic—Appellant’s vehicle failed to maintain its lane 

and would periodically slow down and speed up. He also observed 

Appellant move into the southbound lane three or four times. The 

witness testified he attempted to call 911 to report Appellant’s 

dangerous and erratic driving but lacked cell-phone coverage.

This witness then saw Appellant cross into the southbound

lane where Appellant’s vehicle hit the deceased’s vehicle head on. 

The witness observed the deceased’s vehicle take evasive action to 

the right to avoid Appellant’s vehicle. However, the witness 

1 “If there was at that time a blood-alcohol level or breathalcohol level of 0.08 or higher, that fact is prima facie evidence that 

the person was under the influence of alcoholic beverages to the 

extent that his or her normal faculties were impaired.”

§ 316.1934(2)(c), Fla. Stat.
3

testified that he only observed about three seconds before the 

crash.

The second witness was driving in front of Appellant. He 

testified that for about eight and a half miles, Appellant repeatedly 

sped up to get close to the rear of the witness’s vehicle. Appellant 

drove so close to the witness’s car that the witness could not see 

Appellant’s headlights. The second witness watched Appellant 

through his rear-view mirrors and never saw Appellant move into 

the southbound lane until the accident occurred.

Seconds before the accident, the second witness saw a vehicle 

coming toward him in the southbound lane. As the vehicle in the 

southbound lane passed, the second witness looked in his side-view 

mirror to see how close Appellant was to the rear of his vehicle. As

Appellant approached the witness’s vehicle, Appellant drove

halfway into the southbound lane where he hit the deceased’s 

vehicle head on.

The collision killed the victim immediately. Appellant 

suffered serious injuries, including major trauma to one leg after 

it was pinned under the steering wheel and crushed by the 

dashboard.

When emergency personnel removed Appellant from his car, 

one of the witnesses identified the odor of alcohol on Appellant’s 

breath and both observed beer cans in his car. The EMT witnesses 

observed an open alcoholic beverage in the driver’s side door, and 

multiple alcoholic beverage cans and bottles scattered throughout 

and around the vehicle. Appellant admitted to the EMT witness 

that he had been drinking. Throughout the encounter, Appellant 

was alert and oriented based on the assessment tools used to 

review his condition, but he did not know where he was.

On the Glascow Coma Scale, which is used to assess a person’s 

mental status, Appellant scored a perfect fifteen. But multiple 

witnesses testified that Appellant exhibited signs of impairment 

that night. Sergeant Wettstein, who responded to the accident, 

testified that he observed a strong odor of alcohol on Appellant’s 

breath and inside Appellant’s vehicle. He also testified that 

Appellant was dazed, and his eyes were watery, glassy, and 
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bloodshot.2 He noticed that Appellant’s speech was mumbled, slow, 

and slurred. Corporal Tolman spoke with Appellant at the 

hospital. He observed an odor of alcohol on Appellant’s breath and 

a lethargic demeanor. Appellant’s blood sample, taken 

approximately two hours after the accident, showed a bloodalcohol content of 0.116 and 0.115.

Sergeant Bennett with Florida Highway Patrol responded to 

the accident around midnight, and the vehicles had not been 

moved. The victim was still in the driver’s seat of her vehicle, but 

Appellant was no longer on scene. Sergeant Bennett examined the 

scene, took photographs, and prepared a field-sketch diagram. One 

of the photographs of the inside of Appellant’s vehicle depicted beer 

bottles. Another photograph showed beer bottles and cans inside 

and outside the vehicle. Some beer cans were open, and some had 

ruptured.

Based on the evidence at the scene, including vehicle parts, 

debris, and gouge marks, Sergeant Bennett determined that the 

accident was an offset, head-on collision that occurred in the 

southbound lane, the lane in which the deceased was traveling.

Appellant testified that at the time of the accident, he had a 

cooler with beer in his car from a previous hunting trip. He had 

both empty and full beer cans in the cooler. He asserted that on 

the night of the accident, he drank three cans of beer and a sip of 

a fourth between 9:40 p.m. and 10:20 p.m. After drinking, he did 

not feel impaired and began driving home around 10:20 p.m. When 

Appellant turned onto the road where the accident occurred, he 

immediately noticed that the vehicle behind him had its bright 

lights on. These lights distracted him, and he tried to get away 

from the lights by passing the vehicles in front of him.

Appellant testified that before the accident, he again sped up 

to try to pass the car in front of him. He saw a car from the other 

lane move into his lane. Appellant jerked to the left, into the 

opposite lane, to avoid the car. At the same time Appellant jerked 

2 Appellant has one prosthetic eye from a childhood golf 

accident.
5

to the left, the oncoming car also moved back into its lane. As a 

result, the cars collided.

Appellant stated that he told the paramedics, his hospital 

nurse, and two state troopers that he drank alcohol before the 

accident. Appellant testified that he did not feel affected by the 

alcohol he had consumed that night.

A defense expert witness in forensic medicine testified that 

Appellant’s blood-alcohol content at the time of the accident was 

approximately 0.05, for which no statutory presumption of 

impairment is required.

Corporal Mueller testified in rebuttal that he obtained the 

event data recorder (“EDR”) from the deceased’s vehicle.3

According to the EDR, the deceased was traveling 52.8 miles per 

hour and was using cruise control. There was nothing unusual 

about the deceased’s movements prior to 0.15 seconds before the 

crash. In the final 0.15 seconds before impact, the deceased took 

evasive action by steering to the right, away from Appellant’s 

travel lane, and applying the brakes.

After Appellant testified, the defense requested to reopen the 

evidentiary and causation issue regarding the deceased’s 

intoxication at the time of the accident. Both parties presented 

extensive argument. The trial court determined that the material 

issue was whether Appellant was in the deceased’s lane. As a 

result, the trial court held, “[i]n this case, I don’t think the 

intoxication of the victim tends to prove who was in whose lane, 

and so I will sustain the objection.”

The jury found Appellant guilty of DUI manslaughter, as 

charged. Appellant moved for a new trial, arguing in part that the 

trial court erred by excluding evidence of the deceased’s 

intoxication. The trial court once again upheld its previous ruling, 

stating that the deceased’s intoxication and use of drugs at the 

time of the accident had no probative value on causation.

3 An EDR is like a black box in an airplane, and it reflected 

what was happening in the victim’s vehicle the last 4.56 seconds 

before the accident.
6

We review a trial court’s evidentiary ruling for abuse of 

discretion. Johnson v. State, 969 So. 2d 938, 949 (Fla. 2007). All 

relevant evidence is admissible, and relevant evidence is that 

which tends to prove or disprove a material fact. §§ 90.401-.402, 

Fla. Stat. (2018).

The third element of DUI manslaughter requires that a 

defendant “cause or contribute to causing” the death of a victim 

while operating a vehicle while impaired. § 316.193(3)(c)3., Fla. 

Stat. (2018) (emphasis added). For a decedent’s conduct to 

constitute a defense to DUI manslaughter, the conduct must be 

viewed as the sole proximate cause of an accident. Miller v. State, 

250 So. 3d 144, 145 (Fla. 1st DCA 2018).

Florida’s DUI manslaughter statute imposes an expansive 

responsibility on drivers who consume alcohol and are involved in 

an accident that causes serious injury or death. The Florida 

Supreme Court stated that the statute requires only that the 

operation of a vehicle cause an accident, and “any deviation or lack 

of care on the part of a driver under the influence to which the fatal 

accident can be attributed will suffice.” Magaw v. State, 537 So. 2d 

564, 567 (Fla. 1989) (emphasis added); see also Clark v. State, 315 

So. 3d 776, 780 (Fla. 1st DCA 2021) (“The State must only present 

evidence to show the driver’s conduct contributed to the victim’s 

death.” (emphasis added)).

This Court has held that it is reversible error to exclude any 

evidence that “tends in any way, even indirectly, to establish a 

reasonable doubt of [a] defendant’s guilt.” Martin v. State, 110 So. 

3d 936, 938 (Fla. 1st DCA 2013) (quoting Rivera v. State, 561 So. 

2d 536, 539 (Fla. 1990)). But in quoting Rivera, the Court in Martin

failed to quote the following language: “[h]owever, the 

admissibility of this evidence must be gauged by the same principle 

of relevancy as any other evidence offered by the defendant.” Rivera, 

561 So. 2d at 539 (emphasis added). There, the defendant sought 

to introduce evidence of a similar murder that occurred while the 

defendant was in custody to disprove his commission of the 

charged murder. Id. at 539–40. The supreme court upheld the trial 

court’s exclusion of this reverse Williams4-rule evidence, finding 

4 Williams v. State, 110 So. 2d 654 (Fla. 1959).
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the dissimilarities between the reverse Williams-rule evidence and 

the victim’s murder sufficient to preclude the reverse Williamsrule evidence. Rivera, 561 So. 2d at 539–40.

Thus, even in a death penalty case, a trial court’s ruling 

excluding potentially exculpatory evidence will be upheld if the 

evidence is not sufficiently relevant. And under section 90.403, 

trial courts must exclude even relevant evidence “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.”

Here, there was an obvious danger in admitting evidence, 

even relevant evidence, that would allow the jury to improperly 

consider the deceased’s intoxication, because the statute requires 

that any fault of the deceased be the sole cause of the fatal collision 

to absolve Appellant of guilt. Appellant violated the statute, even 

if he only contributed to the accident, so the proffered evidence had 

to show that the victim was 100% at fault for the collision.5

The excluded evidence did not show that the deceased was 

solely responsible for the fatal accident. In addition, the potential 

danger of this evidence to mislead the jury renders it inadmissible 

under section 90.403. See Marchina v. State, 702 So. 2d 1369 (Fla. 

1st DCA 1997) (holding that the evidence should have been 

excluded under section 90.403, as its very limited probative value 

was outweighed by the danger of unfair prejudice and was relevant 

only to prove bad character of defendant in violation of section 

90.404(2)(a)). While the trial court did not rely on section 90.403, 

and this rationale, we may consider this logic and legal authority 

5 For a general comparison to a civil case, in Walt Disney 

World Co. v. Wood, 515 So. 2d 198 (Fla. 1987) (superseded by 

statute in Fabre v. Marin, 623 So. 2d 1182 (1993)), the supreme 

court held that a defendant who was only one percent at fault 

remained liable based on joint and several liability. Similarly in 

the criminal context of DUI manslaughter and vehicular homicide, 

if a criminal defendant contributes in any way to a fatal accident, 

the defendant may be charged and convicted regardless of the fault 

of the deceased or seriously injured victim. While the burdens of 

persuasion are obviously different in civil and criminal cases, the 

rule of joint and several liability is instructive.
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in affirming the judgment. See Childers v. State, 936 So. 2d 585, 

593–96 (Fla. 1st DCA 2006) (en banc) (affirming judgment under 

“tipsy coachman” rule, because, although trial court erred in 

excluding evidence as irrelevant, evidence was properly excluded 

under section 90.403). We thus conclude that the trial court did not 

err in excluding this evidence when it carefully and commendably 

considered all aspects of this case.

And even if the trial court erred, which we do not decide, any 

error was harmless. Here, there is no reasonable possibility that 

excluding evidence of the victim’s intoxication contributed to 

Appellant’s conviction. Cooley v. State, 273 So. 3d 258, 261 (Fla. 

1st DCA 2019) (holding that the Court “need not decide whether 

the trial court’s decision to allow evidence” was error, as any error 

was harmless); Thorne v. State, 271 So. 3d 177, 187 (Fla. 1st DCA 

2019) (“Thus, we hold the error was harmless beyond a reasonable 

doubt in light of the extensive inculpatory evidence and the entire 

context” of the excluded evidence).

Even accepting Appellant’s testimony as credible, Appellant’s 

conduct contributed to the accident. Appellant testified that a car 

crossed into his lane, so he reacted and moved into the opposite 

lane. Based on this evidence alone, Appellant contributed to the 

accident by moving into the lane where the accident occurred. See 

Magaw, 537 So. 2d at 567; Clark, 315 So. 3d at 780. Because 

Appellant presented evidence that he caused or contributed to the 

accident, there is no reasonable possibility that the error of 

excluding the evidence of the victim’s intoxication contributed to 

the verdict. See § 316.193(3)(c)3., Fla. Stat.

In reaching this conclusion, we considered the decision in 

Getts v. State, 313 So. 3d 964 (Fla. 2d DCA 2021), relied on by 

Appellant here, which had not been decided during the trial 

proceedings. In Getts, the court held the trial court erred by 

excluding evidence of an intoxicated driver involved in a fatal 

accident. 313 So. 3d at 968. There, the decedent was a passenger 

of the defendant who was killed when the defendant hit another 

vehicle from behind. Id. at 966.

In Getts, the defendant was driving in the right-hand lane of 

a four-lane divided highway. Id. at 965–66. The EDR evidence 
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showed that Getts was traveling more than one hundred miles per 

hour. Id. at 966. No witness corroborated Getts’ testimony 

claiming that the driver of the other vehicle had veered into Getts’ 

lane. Id. Holding that a jury could disbelieve all the State’s 

evidence and believe Getts’s self-serving testimony, the court there 

decided that the evidence of the other driver’s intoxication could 

nevertheless prove that the driver was the sole cause of the 

accident. Id. at 968–69. We find the logic of the decision 

unpersuasive under Magaw, and the facts distinguishable from 

this case, where both the State’s evidence and Appellant’s 

testimony support the trial court’s ruling. 537 So. 2d at 567.

Furthermore, the State presented ample, independent 

evidence supporting the jury’s verdict so that knowledge of the 

victim’s intoxication would not have affected Appellant’s 

conviction. Two witnesses testified that Appellant was driving 

erratically eight to ten minutes before the accident occurred. 

Additionally, both witnesses saw Appellant move into the lane 

where the accident occurred, hitting the deceased’s vehicle. 

Multiple witnesses testified that Appellant seemed impaired, and 

Appellant testified that he had consumed alcohol before the 

accident. The State submitted evidence that Appellant’s bloodalcohol content on the night of the accident was between a 0.115 

and 0.116. The State also presented evidence that the fatal 

collision occurred in the deceased’s lane, which Appellant never 

contradicts, and which is supported by the information on the 

deceased’s vehicle’s EDR.

Considering Appellant’s own testimony and the additional 

evidence of Appellant’s impairment, the exclusion of the evidence 

of the decedent’s intoxication was harmless, if error at all. 

See Thorne, 271 So. 3d at 187.

AFFIRMED.

NORDBY and TANENBAUM, JJ., concur.
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_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Rick A. Sichta and Susanne K. Sichta of The Sichta Firm, LLC, 

Jacksonville, for Appellant.

Ashley Moody, Attorney General, Daren L. Shippy, Assistant 

Attorney General, Tallahassee, for Appellee.