FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-5010

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KENNETH LEE MANHARD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Bay County.

Michael C. Overstreet, Judge.

October 1, 2019

B.L. THOMAS, J.

Appellant challenges his judgment and sentence for leaving 

the scene of a crash involving death, DUI manslaughter, and 

driving while license canceled, suspended, or revoked, causing 

serious bodily injury or death. We affirm because the evidence was 

sufficient to sustain the conviction, and the trial court’s relevant 

evidentiary rulings were correct.

Facts

All charges arose from a crash on April 7, 2016, that resulted 

in the death of a motorcycle driver. The parties stipulated that 

Appellant had a suspended driver’s license at the time of the 

offense. Eyewitnesses testified that Appellant had been driving a 

white Hyundai sedan that morning. One witness testified that 
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Appellant had appeared intoxicated at 3:54 a.m. when Appellant 

drove away in an undamaged white sedan. Other witnesses stated 

that between 4 and 5 a.m., they saw Appellant sitting behind the 

driver’s seat of a white sedan with his eyes closed. They testified 

there was damage to the front of the vehicle and windshield, with 

the windshield containing a “butt print,” blood, and hair. They also 

testified Appellant stated he had not hit anybody and that 

“someone threw a scooter at me.”

A highway patrol officer testified that he responded to the 

scene of an accident involving the death of a motorcycle driver on 

Hathaway Bridge. The officer stated the damage to the rear and 

side of the motorcycle was consistent with a rear-end collision, and 

blood pools on the bridge indicated the motorcycle’s driver had 

been hit and then moved by subsequent collisions. He testified that 

dispatch notified him of a suspect vehicle at a nearby gas station, 

where he observed Appellant next to a white Hyundai sedan, 

which had a damaged front end and windshield. He noted that 

both the blood and the “significant nature” of the deformed 

windshield showed the vehicle made contact with a human body, 

and there was an injury. In addition, he observed blue and green 

paint consistent with the victim’s license plate, which had 

transferred onto the white vehicle. 

A forensic pathologist testified that the cause of death was 

multiple blunt injuries, each of which could have caused great 

bodily harm. She stated, however, that it was impossible to 

determine which of the multiple impacts caused which specific 

injury.

After the State rested, Appellant moved for judgment of 

acquittal on all counts. Regarding the charge of leaving the scene 

of a crash involving death, Appellant argued the State failed to 

establish he knew or should have known he was involved in a crash 

with a person. He also argued the State failed to establish that he 

knew or should have known his crash with the victim resulted in 

the victim’s death. He asserted that a driver must know of the 

specific impact that resulted in injury, when the crash involves 

multiple impacts. 

As to the DUI manslaughter charge, Appellant argued the 

State failed to establish that he was impaired at the time he was 
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in actual physical control of the vehicle or that he caused or 

contributed to the victim’s death. Lastly, regarding the charge of 

driving while license canceled, suspended, or revoked causing 

serious bodily injury or death, Appellant argued the State failed to 

provide evidence that Appellant drove carelessly or negligently. 

The trial court denied Appellant’s motion on all counts. 

Before trial, Appellant filed a motion in limine, stating: 

The State [intends] to show the video from the backseat 

of [a] Trooper[’s] vehicle. The video contains reference to 

matters which have been suppressed, crimes not charged, 

and further matters which are more prejudicial than 

probative in this case. 

At a pretrial hearing, the State agreed to redact the recording 

to omit references to all the instances listed in Appellant’s motion 

in limine, including the segment which showed Appellant being 

restrained. At trial, Appellant reaffirmed the objections listed in

the motion in limine, stating, “[j]ust with previous objections.” 

The redacted recording showed that Appellant was advised of 

his Miranda∗ rights, and he invoked his right to silence. However, 

Appellant continued to talk after invoking his right, and claimed 

he did not own and had not driven the vehicle. He further alleged 

a bird had hit his windshield. Throughout the recording, Appellant 

used offensive language, threatened the officers, and threatened to 

urinate in the car. The recording also showed an interaction 

between two officers during which one officer mentioned “[h]e’s 

invoked his right to remain silent.” Appellant made no other 

objections during or after the presentation of the recording and did 

not move for a mistrial.

On Appellant’s Criminal Punishment Code scoresheet, the 

State assessed Appellant 120 points in the “Victim Injury” 

category for “death.” Appellant filed a second motion to correct 

sentence under Florida Rule of Criminal Procedure 3.800(b). 

Appellant argued that because the jury did not find Appellant 

actually caused the death or that the death was a direct result of 

 ∗ Miranda v. Arizona, 384 U.S. 436 (1966).
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Appellant’s actions, Appellant’s scoresheet sentence was 

impermissibly increased by a factor not found by the jury. 

The trial court denied Appellant’s second motion to correct 

sentence, stating, “the language of [section 921.0021(7)(a), Florida 

Statutes] imparts no such requirement; [t]he Defendant’s 

conviction for DUI Manslaughter is sufficient on its own to support 

the enhancement.”

Analysis

I. The trial court did not err in denying the motion for judgment of 

acquittal 

Our review of the trial court’s ruling denying the motion for 

judgment of acquittal is de novo. Pagan v. State, 830 So. 2d 792, 

803 (Fla. 2002). “A trial court should not grant a motion for 

judgment of acquittal unless the evidence, when viewed in a light 

most favorable to the State, fails to establish a prima facie case of 

guilt.” State v. Odom, 862 So. 2d 56, 59 (Fla. 2d DCA 2003). “Where 

the state has produced competent evidence to support every 

element of the crime, a judgment of acquittal is not proper.” Gay v. 

State, 607 So. 2d 454, 457 (Fla. 1st DCA 1992).

Under section 316.027, Florida Statutes, to prove that the 

driver of a vehicle left the scene of a crash involving death or 

injury, the State must prove the driver of the vehicle had actual 

knowledge of a crash. But the State is not required to prove the 

defendant knew or should have known that a death occurred to 

sustain a conviction for leaving the scene of a crash resulting in 

death. See State v. Dumas, 700 So. 2d 1223 (Fla. 1997). Rather, the 

State must prove the defendant knew or reasonably should have 

known that a person was at least injured in the crash. See State v. 

Mancuso, 652 So. 2d 370, 371 (Fla. 1995) (holding that criminal 

liability for leaving the scene of an accident involving death or 

injury required proof that motorist knew of resulting injury or 

death or reasonably should have known from the nature of the 

accident). 

The nature of the vehicle damage may be used to establish 

that the defendant should have known there was serious injury. 

See Pitts v. State, 227 So. 3d 674, 677 (Fla. 1st DCA 2017). In Pitts, 
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this Court held the trial court did not err in denying the 

defendant’s motion for judgment of acquittal when the State had 

produced sufficient evidence that the defendant knew or should 

have known there was serious injury by presenting evidence that 

the defendant’s DNA was on the steering wheel, the victim had 

rolled over the hood of the car, and the victim had impacted the 

windshield. Id. at 477. 

Here, the State presented sufficient evidence that Appellant 

knew of the crash and knew or should have known there was 

serious injury. It introduced into evidence jail phone calls in which 

Appellant admitted, “somebody hit him into me, he rolled up over 

my car, broke the windshield, I freaked out, kept on driving.” The 

State presented testimony that Appellant had been in the driver’s 

seat with a damaged windshield and glass on him, and that he 

claimed a scooter hit his windshield. The State thus presented 

evidence that Appellant knew or should have known that there 

was serious injury to a person as Appellant’s vehicle had hit the 

victim on his motorcycle from behind with enough “significant 

force” that the victim’s body impacted the windshield. Viewed in 

the light most favorable to the State, the State established every 

element of leaving the scene of a crash involving death. See Odom, 

862 So. 2d at 59. 

Appellant also challenges the denial of the motion on the 

grounds that Booker v. State, 103 So. 3d 1035 (Fla. 2d DCA 2012)

and McGowan v. State, 139 So. 3d 934 (Fla. 4th DCA 2014) hold 

for the principle that where the victim is involved in a multipleimpact collision, the State must prove the additional element that 

the driver knew of the specific impact that actually resulted in the 

injury. Even if these cases were binding on this Court, which they 

are not, see Pardo v. State, 596 So. 2d 665, 666–67 (Fla. 1992) (“[I]n 

the absence of interdistrict conflict, district court decisions bind all 

Florida trial courts”) (emphasis added); see Ansin v. Thurston, 101 

So. 2d 808, 810 (Fla. 1958) (holding the district courts of appeal 

were never intended to be intermediate courts, and review by the 

district courts are final and absolute in most instances); see In re 

Rule 9.331, Determination of Causes by a Dist. Court of Appeal En 

Banc, Fla. Rules of Appellate Procedure, 416 So. 2d 1127, 1127–28 

(Fla. 1982)(noting the amendment “substantially strengthened the 

position of the district courts of appeal as final appellate courts”), 

both cases are distinguishable. 
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In Booker, the Second District held the State failed to present 

evidence that Booker knew or should have known that injury was 

a consequence of the crash when there was minimal injury to the 

vehicle and the victim’s car was partially obscured from view by a 

parked patrol car. 103 So. 3d at 1036. Furthermore, nothing about 

the nature of the impact in and of itself established Booker knew 

or should have known the victim’s car was occupied or that the 

victim was injured. Id. The present case is distinguishable as the 

victim was driving a motorcycle on a bridge, there was no evidence

presented that the victim or his motorcycle were obscured from 

view, and both the victim and his motorcycle, as well as Appellant’s 

vehicle, sustained substantial damage. 

In McGowan, the Fourth District held the State failed to prove 

that McGowan knew or should have known that the accident 

involved a person when McGowan was not the first vehicle to hit 

the victim, other cars before him had not stopped, and testimony 

established the victim could not have been seen given the dim 

lighting conditions and the way the victim’s body flew up in the 

air. 139 So. 3d at 938-39. Here, the State provided evidence that 

Appellant should have seen the victim, and known the accident 

involved a person. In addition, Appellant admitted in a jail phone 

call that he had hit someone, “freaked out,” and kept driving.

II. The trial court did not err in admitting into evidence the 

recording from the trooper’s vehicle

Appellant challenges the court’s admission of the recording 

from the trooper’s vehicle. Appellant argues the recording 

contained evidence of bad acts, uncharged collateral crimes, and 

comments on Appellant’s silence which encouraged the jury to 

render a verdict based on Appellant’s bad character or prior bad 

acts, rather than whether the State proved his guilt for the crimes 

charged. We disagree. 

First, we note that Appellant has not preserved his objections. 

“[T]o raise an error on appeal, a contemporaneous objection must 

be made at the trial level when the alleged error occurred.” Carr v. 

State, 156 So. 3d 1052, 1062 (Fla. 2015) (citing J.B. v. State, 705 

So. 2d 1376, 1378 (Fla. 1998). “If the court has made a definitive 

ruling on the record admitting or excluding evidence, either at or 

before trial, a party need not renew an objection or offer of proof to 
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preserve a claim of error for appeal.” § 90.104(1), Fla. Stat. (2019). 

However, failure to object in the trial court does not constitute a 

waiver of the right to raise the issue upon appeal when the error 

of the trial judge constitutes a fundamental error. Willard v. State, 

386 So. 2d 869, 871 (Fla. 1st DCA 1980). Fundamental error is 

error that “reach[es] down into the validity of the trial itself to the 

extent that a verdict of guilty could not have been obtained without 

the assistance of the alleged error.” Carr, 156 So. 3d at 1063

(quoting Archer v. State, 934 So. 2d 1187, 1205 (Fla. 2006)).

Here, Appellant objected to parts of the recording through his 

motion in limine and reaffirmed those objections at trial by stating, 

“[j]ust with previous objections.” Appellant made no other 

objections during or after the presentation of the recording, and 

did not move for mistrial. Appellant was not required to renew the 

objections concerning the portions of the recording listed in the 

motion in limine, and those issues have been preserved for 

appellate review. However, Appellant’s argument regarding his 

repeated use of profanities, threat to urinate, and the comment on 

Appellant’s silence was not included in the motion in limine, and 

Appellant did not make a contemporaneous objection. Accordingly,

Appellant has not preserved the issues regarding his use of 

profanity, threats to urinate, and the comment on Appellant’s 

silence. 

We further hold that the admission into evidence of the 

redacted recording did not constitute fundamental error. “For an 

error to be so fundamental that it may be urged on appeal though 

not properly preserved below, the asserted error must amount to a 

denial of due process.” Castor v. State, 365 So. 2d 701, 704 n.7 (Fla. 

1978). The State introduced the recording as evidence of 

Appellant’s intoxication, an element of DUI Manslaughter. In 

addition, the comment regarding Appellant’s invocation of his 

right to remain silent was to inform the second officer that he could 

not ask Appellant any questions. The admission of Appellant’s 

actions and statements as well as the statement regarding 

Appellant’s silence did not create any error to the extent that a 

guilty verdict could not have been obtained without the assistance 

of the alleged error. See F.B. v. State, 852 So. 2d 226, 229 (Fla. 

2003). Thus, the trial court did not err by admitting the recording 

into evidence.
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And even if the issues had been preserved, the trial court did 

not abuse its discretion. Appellant alleges the recording shows him 

threatening the officers and threatening to kick the window of the 

patrol car, which constitutes bad acts and uncharged collateral 

crimes. But, “collateral-crime evidence, such as bad acts not 

included in the charged offenses, is admissible when relevant to 

prove a material fact in issue, but is inadmissible when the 

evidence is relevant solely to prove bad character or propensity.” 

Wright v. State, 19 So. 3d 277, 291-92 (Fla. 2009)(emphasis 

supplied). The admission of collateral-crime evidence is not 

considered Williams-rule evidence when it is inextricably 

intertwined with the charged offenses. Id. at 292. Evidence of other 

bad conduct may be admitted as inextricably intertwined with the 

charged offense when it is “a relevant and interwoven part of the 

conduct that is at issue.” Id. (emphasis supplied).

Here, Appellant’s behavior, demeanor, words, and acts are 

relevant to establish the material fact of impairment at the time of 

the crash, an element of the crime of DUI Manslaughter. § 

316.193(1)(a), Fla. Stat. (2019). Accordingly, the inclusion of 

evidence of Appellant’s conduct was relevant to show impairment 

and was inextricably intertwined with the DUI Manslaughter 

charge. Thus, the trial court did not err in admitting the recording, 

and did not abuse its discretion. See Dorsett v. State, 944 So. 2d 

1207, 1216 (Fla. 3d DCA 2006) (holding where evidence of a prior 

drug transaction went towards a material issue in dispute, there 

was no abuse of discretion in admission of the evidence).

III. The trial court properly assessed victim-injury points

Appellant argues the 120 victim-injury points for death on the 

Criminal Punishment Code Scoresheet were assessed in error as 

the evidence did not show, and the jury did not find, that the death 

of the victim was the direct result of any of Appellant’s crimes or 

convictions in this case. 

“[T]he decision of a trial court to impose victim-injury points 

is subject to an abuse-of-discretion standard.” Sims v. State, 998 

So. 2d 494, 504 (Fla. 2008) (citation omitted). “Victim injury shall 

be scored for each victim physically injured during a criminal 

episode or transaction, and for each count resulting in such injury 

whether there are one or more victims.” Fla. R. Crim. P. 
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3.701(d)(7). “Points for victim injury [are] added for each victim 

injured during a criminal transaction or episode. The injury need 

not be an element of the crime for which the defendant is convicted, 

but is limited to physical trauma.” Florida Rules of Criminal 

Procedure Re: Sentencing Guidelines (Rules 3.701 & 3.988), 522 So. 

2d 374 (Fla. 1988). The supreme court clarified that the “direct 

result” language included a causation element linking the death of 

the victim and the charged offense. Sims, 998 So. 2d at 505. A 

conviction under “vehicular homicide or any other offense in which 

the crime actually involved the impact that caused the death . . . 

would have satisfied the causation requirement for the imposition 

of victim-injury points.” Id. Here, Appellant was charged with DUI 

manslaughter, which satisfies the causation requirement as it 

links the death with the charged offenses. Therefore, the victiminjury points were properly assessed. 

AFFIRMED.

LEWIS and ROBERTS, 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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Andy Thomas, Public Defender, Danielle Jorden, Assistant Public 

Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Sharon S. Traxler, Assistant 

Attorney General, Tallahassee, for Appellee.