KENNEY v. STATE (2023)

The State charged Michael Kenney with domestic battery based on an altercation between him and his son. Because Kenney's son refused to participate in the prosecution, the State relied primarily at trial on the testimony of Kenney's daughter, the only other witness to the altercation. The jury found Kenney guilty.

On this direct appeal, Kenney argues that the evidence was insufficient to support his conviction and that the trial court should not have allowed the State to introduce—ostensibly for impeachment purposes—a videorecording that included an assertedly prior inconsistent statement by Ms. Kenney to the sheriff's deputy who responded to the scene.

We agree that the video should not have been admitted. See Pearce v. State, 880 So. 2d 561, 570 (Fla. 2004) (“[I]f the witness admits making the prior statement, examining counsel may not offer any evidence to prove the statement was made.”). But the deputy's testimony independently recounting Ms. Kenney's statement should not have been admitted either. See id. In addition, the State should never have been permitted to argue, as it then did, that the jury could consider that unsworn statement as substantive evidence of Kenney's guilt. See Moore v. State, 452 So. 2d 559, 562 (Fla. 1984) (explaining that prior inconsistent statements are admissible for substantive purposes if the requirements of section 90.801(2)(a), Florida Statutes, are satisfied). And we are unconvinced that the jury's ensuing consideration of the statement was harmless beyond a reasonable doubt.

Nonetheless, we have no choice but to affirm. Although defense counsel did raise some objections, he failed to object on the bases that would have entitled Kenney to relief on appeal. See Braddy v. State, 111 So. 3d 810, 836 (Fla. 2012) (reiterating that “to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court” (quoting Kokal v. State, 901 So. 2d 766, 778–79 (Fla. 2005))). Moreover, none of those bases are argued on appeal even in the context of fundamental error. See Bell v. State, 336 So. 3d 211, 217 (Fla.) (“[W]here a defendant fails to preserve—by specific objection—the trial court's alleged errors, [the reviewing court] will only reverse where there is a showing of fundamental error.”), cert. denied, ––– U.S. ––––, 143 S. Ct. 184, 214 L.Ed.2d 66 (2022).¹ Accordingly, although we affirm, we do so without prejudice to Kenney's right to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

Affirmed.

FOOTNOTES

1.   We do not mean to imply that those arguments necessarily would have established fundamental error. We only observe that Kenney's failure to make them on appeal precludes us from even considering the possibility: an appellate court may neither “ 'address issues that were not raised by the parties' ․ [n]or ․ 'depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention.'  “ Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (en banc) (first quoting Anheuser-Busch Cos. v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013); and then quoting Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983)).

ROTHSTEIN-YOUAKIM, Judge.

LaROSE and KHOUZAM, JJ., Concur.