GEOVANI GRAS

v.

THE STATE OF FLORIDA

H Carlos I. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for torney, and Sarah Lobel, Assistant State Attorney, Appellant. . Katherine Fernandez Rundle, State At for Appellee. _ _ Before CARDONNE ELY, vi _d , I.I. A "We~""”" I / FY’ “ ' ' for VJ; Q l urt’s denial of a motion

CARDONNE ELY, J.

i The appellant, Geovani Gras, seeks review of the trial co ' judgment ofacquittal on the charge ofresisting an officer without violence in violation ofsection -We reverse, finding that the trial court erred in denying the motion 843.02, Florida Statutes. Page 1 of4 [*2] where Mr. Gras was involved in a consensual encounter with police when he purportedly gavefalse information and there is noevidence that the officer’s duty was actually obstructed. ‘ On ‘September 21,- 2010, Gras was working at a hotdog stand when an automobile accident occurred nearby. When questioned by an officer investigating the accident, Gras stated that he did not see the collision because he was talking on his cell phone at the time. When the offioer further inquired as to whether Gras knew any ofthe parties involved in the accident, Gras replied that he did not. Officers assumed that Gras did in fact know one of the drivers when it was later discovered that Gras lived one block away from her and that the hotdog stand was registered to that driven On this basis, Appellant was subsequently charged with providing false information in an officiai police report in violation of section 319.067, Florida Statutes, and resisting an officer without violence in violation ofsection 843.02, Florida Statutes. , The case proceeded to trial and the court granted the defense’s motion for judgment of acquittal on the false information charge, but denied the motion as to the charge of resisting an officer without violence. The trial court reasoned that the right to end a consensual police encounter and walk away did not translate into a right to lie to the police during the course of a police investigation. Under the facts at bar, we disagree. Section 843.02, Florida Statutes (2010), provides that “[w]hoever shall resist, obstruct or oppose any officer . . . in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree . . . .” § 843.02, Fla. Stat. (2005). In order to sustain a conviction under the statute, the State must show “(1) that the officer was engaged in the lawful execution of a legal duty; and (2) that the defendant’s action constituted obstruction or resistance of that lawfiil duty.” 1.M. v. State, 960 So. 2d 813, 815 (Fla. 3d DCA 2007). In D.G. v. State, V Page 2 of4 [*3] 661 So. 2d 75, 76 (Fla. 2d DCA 1995), the court summarized the following general proposition applicable to section 843.02, based on Florida case law: ' If a police officer is not engaged in executing process on a person, is not legally detaining thatperson, or has not asked the personfor assistance with an ongoing emergency that presents a serious threat ofimminent harm toperson orproperty, the person’s words alone can rarely, if ever, rise to the level of an obstruction. Thus, obstructive conduct rather than offensive words are normally required to support a conviction under this statute. _ at (emphasis added). . g V In this case, the State failed to show that Gras obstructed the accident investigation. Gras maintained that he had not seen the accident because he was on his cell phone at the time, and no evidence was introduced to suggest that his statement had any bearing whatsoever on the investigation of who was at fault in the accident. The State argues that whether or not Gras knew the parties in the accident was relevant to establish whether he was a biased witness in the investigation. The fact that Gras was not a witness in the first place is fatal to this rationale. g Burdess v. State, 724 So. 2d 604, 604 (Fla. 5th DCA 1.998) (reversing a conviction where “[t]herc was no testimony that the officer was impeded in any way by the giving of the original false information”). - Furthermore, Gras was not under arrest or otherwise lawfully detained at the time he purportedly gave the false statement. The entire encounter was consensual; therefore, these facts are simply insufficient to support a conviction for resisting an officer without violence. m Sauz v. State, 2'? So. 3d 226, 228 (Fla. 2d DCA 2010) (holding that a defendant denying his identity and providing false information to a police officer investigating a crime involving the defendant did not support a conviction for resisting an officer without violence, because the defendant was not lawfully detained by the officer or subject to a Tegy stop at the time); W.W. v. State 993 So. Fournier v State 2d 1182 (Fla. 4th DCA 2008); "/31 So. 2a 75, 77 (Fla. 2a DCA 1999). Thus, Page 38 of4, [*4] . . ‘- ' . Appellant is entitled to reversal and a judgment of acquittal on the charge of resisting without violence. V *

REVERSED.

. VENZBR and MARIN, JJ., CONCUR. Page 4 of4 ¥ ._ .._iA__. .. _ l \