Third District Court of Appeal

State of Florida

Opinion filed December 9, 2020.

Not final until disposition of timely filed motion for rehearing.

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No. 3D19-2179 

Lower Tribunal No. 18-201-A-K

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The State of Florida,

Appellant,

vs.

Hernan Francisco Marin,

Appellee.

An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge.

Ashley Moody, Attorney General, and Brian H. Zack, Assistant Attorney 

General, for appellant.

The Upson Law Group, P.L., and Keith W. Upson (Naples), for appellee.

Before EMAS, C.J., and GORDO and BOKOR, JJ. 

GORDO, J.
2

The State appeals the trial court’s order granting Hernan Marin’s motion to 

exclude the audio-video recording of a controlled call with the victim in the 

underlying case. We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(B). The

State argues the trial court abused its discretion in excluding the recording in its 

entirety because it contains audible portions discussing the crimes charged.1

 We 

agree, reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Marin with one count of aggravated assault with a deadly 

weapon without intent to kill and one count of felony battery or domestic battery by 

strangulation. On February 27, 2018, Lieutenant David Smith, who was 

investigating the alleged crimes, and Detective Wendy Negron met with the victim

to conduct a controlled call with Marin. The controlled call was audio and video 

recorded on Lieutenant Smith’s body-worn camera.

On October 27, 2019, Marin filed a motion seeking to exclude the recording

of the controlled call on several grounds, including that it was mostly inaudible. The 

trial court held an evidentiary hearing regarding the call’s admissibility, where it 

addressed only “whether the tape was sufficiently audible to be admitted into 

1 We do not address the relevance of the audible portions of the audio-video 

recording. As the trial court’s order makes clear, the only issue addressed at the 

hearing was the audibility of the recording; the trial court has not yet considered the 

recording’s relevance. Thus, we do not comment on the relevance of the recording, 

which is to be litigated upon remand for further proceedings.
3

evidence at all.” At the hearing, the trial court heard the recording but declined to 

admit a copy of the call transcript in evidence because it wanted to decide the 

audibility of the tape “without the influence of a written transcript.” The entire 

hearing, including the playing of the controlled call recording, was transcribed by a 

court reporter.2

During Lieutenant Smith’s testimony, the State played the recording. He was 

able to hear Marin’s statements pertaining to the crimes in question and explain the 

contents of the conversation between Marin and the victim. During crossexamination, Lieutenant Smith acknowledged that some of Marin’s responses were 

inaudible.

On the record, the trial court observed that the recording “may be audible” but 

stated it was struggling to determine whether the recording contained relevant 

statements.3

 Later, in its written order, the trial court reached the opposite 

conclusion, finding the recording was largely “inaudible, unintelligible, and 

ultimately meaningless.” The trial court granted the motion and excluded the 

recording in its entirety. 

STANDARD OF REVIEW

2 On appeal, the State filed an email correspondence from the court reporter in which 

she states that she “transcribed the audio of the controlled call that was played in 

court based on what [she] heard in court, not based on any transcript.”

3 The trial court stated, “It may be audible . . . But, as I was listening to this, it was 

really hard for me to link it up to the crimes alleged herein.”
4

“A trial court has wide discretion concerning the admissibility of evidence, 

and a ruling on admissibility will not be disturbed unless there has been an abuse of 

discretion.” Irving v. State, 627 So. 2d 92, 94 (Fla. 3d DCA 1993) (citing Jent v. 

State, 408 So. 2d 1024, 1029 (Fla. 1981)). The trial court’s determination that the 

tape is audible, however, is a factual determination subject to the competent, 

substantial evidence standard. McCoy v. State, 853 So. 2d 396, 403–04 (Fla. 2003).

LEGAL ANALYSIS

“The general rule regarding admissibility of partially inaudible tape 

recordings is that such recordings are admissible unless the inaudible and 

unintelligible portions are so substantial as to deprive the remainder of relevance.” 

Commerford v. State, 728 So. 2d 796, 798 (Fla. 4th DCA 1999) (citing Odom v. 

State, 403 So. 2d 936, 940 (Fla. 1981)). “Partial inaudibility or unintelligibility is 

not a ground for excluding a recording if the audible parts are relevant, authenticated, 

and otherwise properly admissible.” Id. (citing Wilson v. State, 680 So. 2d 592, 594 

(Fla. 3d DCA 1996)).

The State’s evidence at the hearing demonstrated that the recording is largely 

audible. First, Lieutenant Smith testified regarding what he heard in open court. 

Second, the transcript of the proceedings contains a transcription of the majority of 

the recorded call, based on what was played in court. This demonstrates that the 

recording is, at minimum, sufficiently audible to be mostly transcribed just from 
5

hearing it played in a court proceeding. The recording, therefore, is not so “inaudible 

and [un]intelligible . . . as to deprive the audible portions of relevance.” Martinez v. 

State, 761 So. 2d 1074, 1083 (Fla. 2000) (citations omitted). Thus, the trial court’s 

finding that the recording was inaudible was not supported by competent, substantial 

evidence, and it was an abuse of discretion to exclude the recording in its entirety on 

that basis.

Reversed and remanded.