In the District Court of Appeal of Florida

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

KENNETH MICHAEL CARROSO,

Appellant,

v.Case No. 2D11-1282

STATE OF FLORIDA,

Appellee.

ON APPEAL FROM THE CIRCUIT COURT

IN AND FOR PINELLAS COUNTY

STATE OF FLORIDA

ANSWER BRIEF OF APPELLEE

PAMELA JO BONDI

ATTORNEY GENERAL

TONJA RENE VICKERS

Assistant Attorney General

Florida Bar No. 0836974

Concourse Center 4

3507 E. Frontage Road, Suite 200

Tampa, Florida 33607-7013

(813)2877900

Fax (813)281-5500

COUNSEL FOR APPELLEE

TABLE OF CONTENTS

PAGE NO.

TABLE OF CITATIONS...... ii-iv

STATEMENT OF THE FACTS...... 1

SUMMARY OF THE ARGUMENT...... 7

ARGUMENT...... 8

ISSUE I...... 8

WHETHERTHE TRIAL COURT PROPERLY ALLOWED THE STATE TO PRESENT EVIDENCE OF ALL THE PAYMENTS APPELLANT RECEIVED FROM WORKER=S COMPENSATION?

ISSUE II...... 14

WHETHERTHE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY PERMITTING A SPECIAL INSTRUCTION ON THE CHARGED OFFENSE?

CONCLUSION...... 20

CERTIFICATE OF SERVICE...... 20

CERTIFICATE OF FONT COMPLIANCE...... 20

TABLE OF CITATIONS

PAGE NO.

CASES

Brown v. Sims,

538 So. 2d 901 (Fla. 3d DCA 1989) ...... 11

Carpenter v. State,

785 So. 2d 1182 (Fla.2001) ...... 16

Cole v. State,

701 So. 2d 845 (Fla. 1997) ...... 8

Concepcion v. State,

938 So. 2d 559 (Fla. 2006) ...... 15

General Elec. Co. v. Joiner,

522 U.S. 136, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997) ...... 8

Griffin v. State,

639 So. 2d 966 (Fla. 1994),

cert. denied, 514 U.S. 1005,

115 S. Ct. 1317, 131 L. Ed. 2d 198 (1995) ...... 11

Haugabrook v. State,

827 So. 2d 1065 (Fla. 2d DCA 2002) ...... 13

Heath v. State,

648 So. 2d 660 (Fla. 1994) ...... 8

Jackson v. State,

947 So. 2d 480 (Fla. 3d DCA 2006) ...... 12

Paulson v. Dixie County Emergency Medical Services,

936 So. 2d 1109 (Fla. 1st DCA 2006) ...... 10

Ray v. State,

755 So. 2d 604 (Fla. 2000) ...... 8

Rustic Lodge v. Escobar,

729 So. 2d 1014 (Fla. 1st DCA 1999) ...... 15

Sanders v. State,

944 So. 2d 203 (Fla. 2006) ...... 18

Smith v. State,

365 So. 2d 704 (Fla. 1978), cert. denied,

444 U.S. 885, 100 S. Ct. 177, 62 L. Ed. 2d 115 (1979) ...... 11

State v. Abreau,

363 So. 2d 1063 (Fla. 1978) ...... 19

State v. Andres,

552 So. 2d 1151 (Fla. 3d DCA 1989) ...... 11

State v. DiGuilio,

491 So. 2d 1129 (Fla. 1986) ...... 12,18

Stephens v. State,

787 So. 2d 747 (Fla. 2001) ...... 14,15

Worley v. State,

848 So. 2d 491 (Fla. 5th DCA 2003) ...... 14

Zack v. State,

753 So. 2d 9 (Fla. 2000) ...... 8

OTHER AUTHORITIES

440.09(4)(b), Fla. Stat. (2006) ...... 6,11

440.105(f), Fla. Stat. (2006) ...... 11

Fla. R. App. P. 9.210(a)(2) ...... 20

STATEMENT OF THE CASE AND FACTS

Appellee accepts Appellant=s statement of the case and facts with the following additions and corrections:

The information in the instant case, charged the Appellant with workman=s compensation fraud, a first-degree felony in violation of section 440.105(4), Florida Statutes (2007) (V1, R1-2). The charge was later amended to a second-degree felony. (V1, R53). According to the affidavit issued with the arrest warrant, the Appellant was involved in an accident on July 20, 2005 (V1, R3-6). As a result of the accident, the Appellant received a total of $112,221.99 from his worker=s insurance company, as part of his employ by Sun West PEO of Florida (V1, R3).

The affidavit further stated Appellant failed to disclose he had been involved in other motor vehicle accidents in which he had suffered some injury and received treatment (V1, R4). Counsel for the worker=s compensation company advised the affiant, that Appellant=s, Afailing to disclose previous existing injuries had a substantial impact on the benefits paid to him.@ (V1, R4). Had the Appellant been truthful from the beginning, Athe monies paid may have been reduced.@ AMs. Ferguson advised the pre-existing injury would have been taken into account to determine the amount Appellant sustained in the July 2005 accident@ (V1, R5).

Witness Carl Reschke, a detective with the Division of Insurance Fraud received a referral from their tip line regarding the Appellant=s claim (V3, T.146-147). The information was provided by First Commercial Insurance, which had been paying the defendant workers= compensation benefits (V3, T.148).

During his deposition, Appellant answered, ANo,@ when asked if he had ever been involved in a prior on-the-job accident or injury (V4, T.188). When asked if he had ever been involved in a prior off the job accident or injury, to include a motor vehicle accident, or slip and fall accident where he had been injured, Appellant responded, ANo.@ (V4, T.188). Appellant denied having had any prior low back pain, and that he had not (prior to the instant accident) received any treatment from a physician (V4, T.196).

He did have a neck strain, two years prior, which came from bowling (V4, T.196-197). Also, the Appellant had no left side shoulder pain or problems, nor had he been treated for such, including shoulder to elbow pain (V4, T.197). Finally, he had not had any right leg thigh to ankle pain before the accident (V4, T.197).

Regarding this accident, the first place he remembered feeling pain was his back and arm (V4, T.198). He stayed in the hospital for one day and was released (V4, T.198-199). The Appellant was admitted a few days later for treatment of an infection (V4, T.201). He was taken out of work from the day of his accident (V4, T.208).

Regarding benefits, the only source of income he was receiving at the time of the deposition was worker=s compensation in the amount of $1,026, every two weeks (V4, T.217). He had not been involved in any prior lawsuits (V4, T.218). Appellant maintained he had not made any other claims with any insurance companies (V4, T.219).

Attorney Karen Ferguson conducted the deposition of the Appellant, and testified the purpose of the deposition was to explore what aspects of the claim that has been filed to determine the company=s responsibilities to the claimant (V4, T.222). Specifically, it must be determined what the employer and carrier would be responsible to pay, as related to the accident (V4, T.246). If any fraud is found, that would affect the payments as the benefits would be forfeited (V4, T.246,248).

The focus of her questions would be based on the information gathered prior to the deposition (V4, T.224). At the time of the deposition, Ms. Ferguson did not have information regarding Appellant=s former accidents or claims (V4, T.234). Afterwards, however, counsel had several concerns regarding the Appellant=s deposition testimony. First, the Appellant stated he had not been involved in any prior off the job accident or injury including a motor vehicle accident (V4, T.242). Second, the Appellant answered, ANo,@ when asked if he had any prior broken bones, sprains, strains, in the past (V4, T.242). Third, the Appellant answered, he had gone to a chiropractor in the past, but had not received any treatment (V4, T.242). He had a strain in his right shoulder and neck, but Dr. Donnelly, did not treat him (V4, T.243).

According to the Appellant, he had not been treated by any other chiropractors, and also had not received any low back treatment or diagnostics (V4, T.243). He had also not made any claims with any other insurance companies (V4, T.246).

Dr. Bruce Phillips testified the Appellant came to his clinic complaining of headaches, neck pain and stiffness, shoulder pain with tingling into the right fingers and low back, in March of 1992 (V4, T.257). Appellant had been involved in an automobile accident (V4, T.257). Dr. Phillips saw the Appellant over a ten-month span for a total of forty-four office visits, treating the neck, cervical and lumbar spine area (V4, T.258-259,261-262).

Orthopedic Surgeon Dr. Robert Donnelly testified met and treated the Appellant on June 10, 2004 (V4, T.272). At the time, Appellant=s chief complaint was back and neck pain, with left arm numbness (V4, T.272). He also had pain in the left leg and shoulder (V4, T.272). There was no indication of Appellant being involved in an accident at this time, however, he advised Dr. Donnelly the back pain he was experiencing had been on going for about ten years (V4, T.274). After the Appellant had an MRI, Donnelly recommended pain management, as opposed to surgery (V4, T.276-277).

Dr. James Napier, who specializes in Osteopathy, treated the Appellant beginning in July of 1995, after the Appellant was involved in an accident (V4, T.283,288). He complained of neck and shoulder pain and headaches (V4, T.283). Also, the Appellant had a history of two automobile accidents (V4, T.283). Appellant was treated over a period of months a dozen times (V4, T.284-285).

Regarding the state=s jury instruction, defense counsel alleged the presentation of the law was accurate in a civil, but not a criminal context (V4, T.297-99). The criminal charge places the emphasis on the fraudulent statement and whether the defendant obtained benefits from the statement. If, however he was receiving benefits prior to making the statement, then the statement could not have been used to obtain those benefits (V4, T.299). Before jury selection, counsel argued the Appellant was entitled to the benefits he received before the deposition (V3, T.73).

The state maintained the instruction was relevant to rebut any claim by the defense that only the checks obtained after the fraudulent statement should be considered; the state opined the entire claim payments should be taken into consideration (V4, T.298-299). Moreover, the information alleged the entire time period for which the Appellant made a claim for the injuries (V3, T.74). The court ruled the checks received before the deposition would be admissible as they were intertwined with the entire facts and circumstances of the case (V3, T.74).

During the hearing on the motion in limine, counsel asserted the state's witness should be precluded from testifying as to any dollar amount the Appellant received prior to the time, he allegedly made the false statements in a deposition, which lead to the instant charges (V2, R243).

According to the state, the charges emerged after the defendant had the 2006 accident and applied for workers= compensation benefits. In his deposition of February 14, 2006, the Appellant made fraudulent statements that he had been involved in prior accidents which he failed to disclose in the current case (worker's compensation case). Moreover, he had been treated by several doctors (V2, R248249). The state further argued that it would be requesting a special jury instruction citing section 440.09(4)(b), Fla. Stat. (2006), which states that where a judge of compensation, administrative law judge, court, or jury find an individual has committed fraud they are not entitled to receive any benefits. (V2, R278). Under the state=s reading of the latter statute, the Appellant=s fraudulent statements precluded him from receiving any benefits, including those initially paid (V2, R278).[1] Defense counsel disagreed arguing those benefits received before any fraudulent statements were not contemplated by the statute (V2, R279).

SUMMARY OF THE ARGUMENT

The trial court did not abuse its discretion by allowing the state to introduce evidence he had been received workers= compensation before making the fraudulent statements, which lead to the instant offense. Even if the court erred [not conceded], the error was harmless, as the evidence presented focused on whether the Appellant made false statements. A special jury instruction given to the jury did not change the elements the state was required to prove, in order for the jury to convict Appellant of workers= compensation fraud. The Appellant is not entitled to reversal.

ARGUMENT

ISSUE I

THE TRIAL COURT PROPERLY ALLOWED THE STATE TO PRESENT EVIDENCE OF ALL THE PAYMENTS APPELLANT RECEIVED FROM WORKERS= COMPENSATION.

Appellant maintains, as he did below, the state was not entitled to present evidence he had received workers= compensation checks for his injury before making his alleged fraudulent statements, because those payments were legitimately received. The state=s position, however, was that under the workers= compensation statutes, the jury should be able to consider all payments.

"The trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion." Heath v. State, 648 So. 2d 660, 664 (Fla. 1994); Ray v. State, 755 So. 2d 604, 610 (Fla. 2000); Zack v. State, 753 So. 2d 9, 25 (Fla. 2000); Cole v. State, 701 So. 2d 845 (Fla. 1997); General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997) (stating that all evidentiary rulings are reviewed for Aabuse of discretion@). A review of the instant record reveals no abuse.

According to the affidavit issued with the arrest warrant, the Appellant was involved in an accident on July 20, 2005 (V1, R3-6). As a result of the accident, the Appellant received a total of $112,221.99 from his worker=s insurance company, as part of his employ by Sun West PEO of Florida (V1, R3). The affidavit further stated Appellant failed to disclose he had been involved in other motor vehicle accidents in which he had suffered some injury and received treatment (V1, R4). Had the Appellant been truthful from the beginning, Athe monies paid may have been reduced.@ AMs. Ferguson advised the pre-existing injury would have been taken into account to determine the amount Appellant sustained in the July 2005 accident@ (V1, R5).

Counsel for First Commercial, Ms. Ferguson testified that after conducting the Appellant=s deposition in February 2006, there were several statements made by the Appellant, which caused her concern. Those statements indicated the Appellant had never been involved in an automobile accident, for which he had sustained injury or been treated. Moreover, he failed to answer truthfully regarding prior insurance claims for the two earlier automobile accidents.

Also, the Appellant denied having had any prior low back pain, or having received any treatment from a physician for low back pain, prior to the instant accident (V4, T.196). Though he had suffered a neck strain two years prior, Appellant maintained it came from bowling (V4, T.196-197). There was no left side shoulder pain, nor had he been treated for such, including shoulder to elbow pain (V4, T.197). Finally, he had not had any right leg thigh -to -ankle pain before the accident (V4, T.197).

The state alleged the offense encompassed the entire time period because the claim was for the same injuries. The fact the deposition occurred halfway through the time frame was of no consequence (V3, T.74). The state=s position was that once the Appellant committed fraud he was no longer entitled to any benefits, including those he had already received. A[T]o be barred from receiving workers' compensation benefits based on section 440.09(4), any false, fraudulent, incomplete or misleading statements must have been made in the case for which workers' compensation benefits are currently being sought.@Paulson v. Dixie County Emergency Medical Services, 936 So. 2d 1109,1111 (Fla. 1st DCA 2006).

In her testimony, Ms. Ferguson advised that once a petition is filed, a determination must be made whether the claim is compensable. Accordingly, discovery, including depositions are conducted to determine the extent of what the employer/carrier is responsible to pay. Specifically, it must be determined what the employer and carrier would be responsible to pay, as related to the accident (V4, T.246). If any fraud is found, that would affect the payments, as such benefits are forfeited (V4, T.246,248). Based on these facts, it is logical to conclude that the Appellant was not entitled to the amount of compensation he was receiving at the time of his deposition. Appellant maintains the admission of the evidence was prejudicial. Appellee disagrees.

First, Arelevant evidence is inherently prejudicial; however it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matters.@ State v. Andres, 552 So. 2d 1151, 1153 (Fla. 3d DCA 1989); Brown v. Sims, 538 So. 2d 901, 908 (Fla. 3d DCA 1989). Indeed, as our Supreme Court has pointed out on more than one occasion, Aalmost all evidence introduced by the State in a criminal prosecution is prejudicial to the defense.@ Griffin v. State, 639 So. 2d 966, 970 (Fla. 1994), cert.denied, 514 U.S. 1005, 115 S. Ct. 1317, 131 L. Ed. 2d 198 (1995).

Secondly, in the state=s view, these statutes ('' 440.09, and 440.105(f)) read together, preclude all past, present and future workers= compensation benefits arising out of an accident, where the claimant makes false or misleading statements in order to obtain benefits. Appellant was charged by amended information with workers= compensation fraud (second-degree felony) beginning July 1, 2005 through September 30, 2006 (V1, R53). Thus, the evidence was admissible to establish the entire context out of which the alleged criminal conduct arose. SeeSmith v. State, 365 So. 2d 704 (Fla. 1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). The evidence was relevant to allow the jury to understand the full sequence of events and to adequately explain Appellant=s deed. See, Jackson v. State, 947 So. 2d 480 (Fla. 3d DCA 2006)(Exclusion of testimony victim may have been a drug dealer was error: defendant, claiming self-defense, alleged the murder occurred after he bought drugs from the victim, who then became angry and attacked defendant with a knife, for rejecting his sexual advances).

Even if the trial court erred by allowing this evidence, any error was harmless. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986). The Appellant maintained the statements he made were not the result of fraud, but of either inability to recall, memory loss, or mistakes in recounting certain facts (V5, T.360-382). He directed the jury to each instance pointed out by the state as a misrepresentation or fraudulent statement, to explain why no fraud had occurred or was intended.

Attorney Karen Ferguson, however, had several concerns regarding the Appellant=s deposition testimony. First, the Appellant stated he had not been involved in any prior off the job accident or injury including a motor vehicle accident (V4, T.242). Second, the Appellant answered, ANo,@ when asked if he had any prior broken bones, sprains, strains, in the past (V4, T.242). Third, the Appellant answered, he had gone to a chiropractor in the past, but had not received any treatment (V4, T.242). He had a strain in his right shoulder and neck, but Dr. Donnelly, did not treat him (V4, T.243). According to the Appellant, he had not been treated by any other chiropractors, and also had not received any low back treatment or diagnostics (V4, T.243). He had also not made any claims with any other insurance companies (V4, T.246).

Three doctors testified the Appellant came to them for treatment during 1992, 1995, and 2004 (V4, T.258-259,261-262). One treated the defendant no less than 40 times, over a span of ten months, after the Appellant had been involved in a car accident. (V4, T.257). Another treated the Appellant over a period of months, a dozen times, following an automobile accident in 1995. (V4, T.284-285). In 2004, a third doctor recommended pain management, as opposed to surgery, for the Appellant, for pain he had been experiencing over a ten-year period (V4, T.276-277). The state maintained Appellant=s failure to disclose these pertinent facts of his medical history during the deposition supported a finding of workers= compensation fraud. These facts were sufficient for a jury to reasonably infer the Appellant had intentionally failed to reveal his prior medical history. The jury, by its verdict rejected Appellant=s assertion, he simply failed to remember, a significant medical history involving his back and neck. Haugabrook v. State, 827 So. 2d 1065, 1069 (Fla. 2d DCA 2002) (Unless it is grounded in credibility, an accused's explanation does not automatically entitle him or her to a judgment of acquittal). Consequently, this Court should find there is no reasonable probability the admission had an affect on the jury=s verdict.