MITCHEL ANDRE INSIGNARES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Mitchel Andre Insignares appealed his convictions for attempted first-degree murder, discharging a firearm in public, and criminal mischief. The Florida Third District Court of Appeal affirmed the first two convictions but reversed the criminal mischief conviction, finding that Insignares lacked the requisite specific intent to damage property where his true intention was to harm persons.
The motion to suppress show-up identifications was properly denied because the victims had reliable opportunity to view and accurately identify Insignares with no irreparable likelihood of misidentification. The prosecutor's remarks did not warrant reversal given the overwhelming evidence of guilt. The criminal mischief conviction was reversed because Insignares lacked the requisite specific intent to damage property, as his true intention was to cause harm to persons.
[1] A show-up identification is permissible if it does not create an irreparable likelihood of misidentification, considering factors such as the witness's opportunity to vie…
[2] A defendant's voluntary consent to participate in a show-up identification negates a claim that the identification resulted from an illegal seizure.
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Join FLexlaw to unlock all legal intelligence“The factors to be considered in evaluating the likelihood of misidentification 'include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'”
Establishes the legal test for evaluating reliability of show-up identifications
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Join FLexlaw to unlock all legal intelligenceInsignares committed crimes that resulted in attempted first-degree murder and discharging a firearm in public charges. The victims were shown Insigna…
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PER CURIAM.
Mitchel Andre Insignares appeals his convictions for attempted first degree murder using a deadly weapon, discharging a firearm in public, and criminal mischief. We reverse the conviction for criminal mischief and affirm the remaining convictions.
Prior to trial, Insignares filed a motion to suppress the show-up identifications by the victims as unduly suggestive and any subsequent identifications as tainted. The trial court conducted an evidentiary hearing on the motion at which it heard testimony from the victims, two police detectives, Insignares, and Insignares’ mother. The trial court concluded that the victims had ample opportunity to observe Insig-nares during the commission of the crimes, gave accurate descriptions of the perpetrator, and were certain in their identification of Insignares as the perpetrator. No more than three to five hours elapsed between the crimes and the identifications. We find that the motion to suppress the show-up identifications was properly denied.
A show-up identification is not invalid if it does not give rise to an irreparable likelihood of misidentification. “The factors to be considered in evaluating the likelihood of misidentification ‘include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ ” State v. Hernandez, 841 So. 2d 469, 472 (Fla. 3d DCA 2002); see also Henry v. State, 519 So. 2d 84, 86 (Fla. 4th DCA 1988) (out-of-court confrontation evidence is admissible if it possesses certain features of reliability).
At the evidentiary hearing, Insignares argued that his participation in the show-up identification was the result of an illegal seizure of his person. However, Insig-nares testified that he consented to going outside with the detective in order to clear up the matter. We agree with the trial court that Insignares voluntarily participated in the show-up identifications.
Neither do we find that the prosecutor’s remarks require reversal. See Cox v. State, 745 So. 2d 1127 (Fla. 3d DCA 1999) (even highly improper argument may not warrant reversal in view of overwhelming evidence of guilt). We therefore affirm Insignares’ convictions for attempted murder and discharging a firearm in public.
However, we reverse Insignares’ conviction for criminal mischief because he lacked the requisite intent. “The offense of criminal mischief requires that the actor possess the specific intent to damage the property of another.” In the Interest of J.G., 655 So. 2d 1284, 1285 (Fla. 4th DCA 1995). “The intent to damage the property of another does not arise by operation of law where the actor’s true intention is to cause harm to the person of another.” Id.
Affirmed in part, reversed in part.
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Sanchez v. State, 909 So. 2d 981 (Fla. 5th DCA 2005)…of criminal [*985] mischief: 1) the defendant injured or damaged specified property; 2) the property belonged to another; and 3) the injury or damage was inflicted willfully and maliciously. § 806.13, Fla. Stat. (2004); see also Insignares v. State, 847 So. 2d 1063, 1064 (Fla. 3d DCA 2003) (acknowledging that the offense of criminal mischief requires that the defendant intend to damage the property of another); C.B. v. State, 721 So. 2d 785 (Fla. 3d DCA 1998) (holding that damage to the property of another is…
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M.H. v. State, 936 So. 2d 1 (Fla. 3d DCA 2006)…will and malice toward a store clerk attempted to rob him, and in the process damaged the clerk’s telephone, there was insufficient evidence that the ill will or malice was in any way redirected from the clerk to the telephone); Insignares v. State, 847 So. 2d 1063 (Fla. 3d DCA 2003)(reversing conviction for criminal mischief based upon insufficient intent to damage the property of another; holding that “ ‘[t]he intent to damage the property of another does not arise by operation of law where the actor’s true…1 / 2
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H.F. v. State, 927 So. 2d 163 (Fla. 3d DCA 2006)…to acting with malice towards the victim. See Sanchez v. State, 909 So. 2d 981 (Fla. 5th DCA 2005) (acting with malice toward the person of the owner of the property is not enough to support a conviction for criminal mischief); Insignares v. State, 847 So. 2d 1063 (Fla. 3d DCA 2003); In Interest of J.G., 655 So. 2d 1284 (Fla. 4th DCA 1995); cf. M.H. v. State, No. 3D05-1357, — So. 2d -, 2006 WL 860974 (Fla. 3d DCA Apr. 5, 2006) (willfully driving a stolen scooter through a fence with knowledge that the scooter…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of J.G., 655 So. 2d 1284 (Fla. 4th DCA 1995)
- State v. Hernandez, 841 So. 2d 469 (Fla. 3d DCA 2002)
- Edwards v. Prudential-Bache Sec., Inc., 519 So. 2d 84 (Fla. 3d DCA 1988)
- Brigham v. State, 745 So. 2d 1127 (Fla. 1st DCA 1999)