RASHIDA HAMILTON

v.

THE STATE OF FLORIDA

TRAWICK, J.

Rashida Hamilton (“Appellant”) brings this appeal to reverse the conviction and sentence for resisting an officer without violence. Appellant was charged with resisting an officer without violence, driving under the influence of alcohol/drugs, and driving while license suspended. During a pretrial hearing, the court agreed to sever the driving while license suspended count from the counts of driving under Page 1 of 7 I l [*2] the influence and resisting an officer without violence. During the same hearing, Appellant moved to suppress the racial slurs and profanity uttered by Appellant. The trial court denied Appellant’s motion to suppress, -finding that the slurs were relevant to proving impairment. The case proceeded to trial where it was the prosecution’s theory that Appellant was driving while impaired and that she knowingly gave the officer a false name after the stop. The prosecution presented evidence that upon approaching the vehicle, the police officer requested Appellant’s driver license. The prosecutor asked the officer to specifically testify about Appcllant’s responses to the request for her driver’s license. The officer testified that Appellant told him that the driver-’s license was “kind of suspended." The Appellant objected. The trial court overruled the objection. Theprosecution again questioned the officer about Appellanfs response to the request for her driver's license. The officer testified that she provided him with a falselname. In response to questions regarding Appcllant’s arrest, the officer testified that after she failed the road side tests, he arrested her. At that point, the officer testified that Appellant used profanity and racial comments directed at him. The prosecutor specifically requested that the officer explain verbatim the language used by Appellant. The officer testified that in response to his request that she blow into the mouth piece for the breath test, Appellant told him to “take my license cracker. Aint’ meaning blow fuck it.” He further testified that when he asked her to sign the implied consent form, Appellant replied that “I did cracker. I told you cracker you are fucking with the wrong nigga bitch.” in the closing arguments, the prosecutor highlighted the racial slurs by quoting them verbatim to the jury. The jury found Appellant not guilty of driving under the influence and guilty ofresisting an officer without violence. Page2of7 ' ' [*3] On appeal, Appellant argues that use of the racial slurs was inflammatory and unduly prejudicial, and beiieves that a Williams rule violation occurred during the trial when Appellant’s suspended license was mentioned twice. Appellee contends that the racial slurs were probative of impairment, whichwas a material element of the DUI charge. Appellee also maintains that the testimony pertaining to the suspended license was not erroneous, and even if it was, any error was harmless. This court agrees that the enoneous introduction of Williams rule evidence regarding Appellant’s suspended license was harmless. Pratt v. State, l_ So. 3d H69, 1171 (Fla. 4th DCA 2009). . However, there is merit to Appellanfs argument regarding the racial slurs. The trial court admitted the racial slurs to show impairment on the charge of driving under the influence and to show intent on the charge of resisting arrest without violence. The Florida Supreme Court strongly suggested that prosecutors should err on the side of caution by omitting racially offensive statements and that trial courts consider the danger that the prejudicial effect of the evidence will substantially outweigh the probative value of the evidence. Jones v. Slate, 748 So. 2d I012, 1023 (Fla. 1999). In Jones, the Court indicated that in limited instances the use of racial slurs may be directly material to the issues presented. Id. Cases where the verbatim admission of racial slurs may be permissible typically involve specific intent crimes. Asay v. Stale, 769 So. 2d 974 (Fla. 2000); Bell v. State, 768 So. 2d 22 (Fla. lst DCA 2000); Clinton v. State, 970 So. 2d 412 (Fla. 4th DCA 2007). As to impairment, a general jury verdict based on a legally inadequate theory of prosecution cannot stand. Fitzpatrick v. State, 859 So. 2d 486, 490 (Fla. 2003). Driving under the influence is a general intent crime. Lamore v. Stale, 983 So. 2d 665, 669 (Fla. 5th DCA Page 3 of7 l i [*4] 2008). A person’s subjective intent to cause a particular result is inelevant to general intent crimes because the law infers a presumption that the person intended the result. Hentz v. State, 62 So. 3d I184, (Fla. 4th DCA 2011). The elements of the general intent crime of driving under the influence are driving, being under the influence, and being impaired. Hoffman v. State, 743 So. 2d 130, 131 (Fla. 4th DCA 1999). Impairment can be established by describing the demeanor and conduct of the person. Id. Circumstantial evidence of impairment may consist of an alcoholic odor emanating from the driver, evidence of the drivcr’s physical impairment, or evidence of an erratic driving pattern and other related and relevant evidence. Tyner v. State, 805 So. 2d 862, 865 (Fla. 2d DCA 2001). Thus, it was error for the trial court to have admitted the racial slurs to show the intent of the Appellee when specific intent was not an clement of the charge ofdriving under the influence. - Appellee argues, that the Appellant resisted arrest without violence by providing the police officer with a false name, and that the use of racial slurs helped to establish Appel1ant’s intent to commit this offense. The introduction of these slurs in this context was prejudicial error. Mindful of the warning ofthe Supreme Court in Jones, and after reviewing this record, we find that the prejudicial effect of admitting verbatim racial slurs to circumstantially prove intent was outweighed by any probative value the slurs might have. It was simply not necessary to have the officer repeat such slursverbatim during his testimony. MCI Exp., Inc. v. Ford Motor C0. , 832 S0. 2d 795, 800 (Fla. 3d DCA 2002)(the Third District Appellate Court commented that because the racial epithet “cculd easily have been rephrased without altering thc meaning of the sentence, or detracting from its ostensible relevance, any probative value was outweighed by the prejudice that resulted from having the jury hear it”). Thus, referencing the fact that the Appellee may have insulted the officer, or even a general reference to racial slurs having been Page 4 of 7 I [*5] made toward the officer would have been sufficient to accomplish the purpose for which the slurs were admitted. However, when a verbatim recitation of racial slurs is made, the provocative effects of these slurs must be considered. The impact that such language may have on any listener, including jurors, cannot be understated. Such terminology comes from the deep underbelly of our nation’s long history of racial hatred and intolerance. The effects of such language on a listener can range from no affect to ambivalence to shock to rage. Given the dangers associated with the admission of such evidence and how a juror might react to its use, the use of racial slurs used in a verbatim manner should only be used in the most limited of circumstances. Jones, 748 S0. 2d at 1023. This is not one of those circumstances, particularly where, as here, there is other evidence to establish the Appellant’s intent, such as the fact that Appellant provided a false identity to the arresting officer. Having made this determination, we also find that the prosecution faiied to prove beyond a reasonabie doubt that the error of the verbatim admission of the verbal slurs did not contribute to the guilty verdict. State v. DtGuili0, 491 So. 2d 1129, 1135 (Fla. 1986); Wicklow v. Slate, 43 So. 3d 85, 88-89 (Fla. 4th DCA 2010); Guerrero v. State, 125 So. 3d 81, 816 (Fla. 4th DCA 2013). _ The conviction entered by the trial court is hereby reversed. This case is remanded to the trial court for proceedings consistent with this opinion.

REVERSED.

BERNSTEIN, J., concurs. CUBTO, J., dissenting. I respectfully dissent.

t I [*6] Typically, racial slurs or racial epithets are inadmissible, due to their prejudicial nature, unless the probative value outweighs any prejudice that may result from introducing them into evidence. MCI Exp., Inc. v. Ford Motor C0., 832 So. 2d 795, 800 (Fla. 3d DCA 2002). A racial slur or ethnic epithet is admissible if it is relevant to show defendant’s state of mind as an element of the crime charged. Guerrero v. State, 125 So. 3d 811, 815 (Fla. 4th DCA 2013). Relevant evidence is that which tends to prove or disprove a material fact. Id, at 814. In determining relevance, the court views the element of the crime charged and whether the evidence tends to prove or disprove a material fact. Id. To convict a defendant of resisting without violence, the prosecutor must prove the following elements: (i) the officer was engaged in the lawful execution of a legal duty; and (2) the actions of the defendant obstructed, resisted, or opposed the officer in the performance of that legal duty. S.L. v. State, 96 So. 3d I080, 1084- 85 (Fla; 3d DCA 2012). _ During the hearing, Appellant argued for the exclusion ofthe racial slurs and profanity as the statements occurred without the benefit of Miranda, that it was done during implied consent, the statements prejudicial value outweighed the probative value of the statements, and the statements were hearsay. The trial court, without benefit ofprosecutorial argument, ruled that the statements were not hearsay, and that the statements were relevant to “somebody’s behavior and if it is resisting without violence is especially relevant to show the animosity and behavior of the individual and not resisting and I guess opposing, obstructing, and but it’s not unfairly prejudicial so therefore the Court is denying your request.” . The officer was engaged in the lawful cxccution of a legal duty, a stop; and Appellant’s statements obstructed, resisted, or opposed the officer in the performance ofthat legal duty. S.L. v. State, 96 So. 3d at 1084-85. As such, the probative value of Appellant’s statements

l I | l | I [*7] vle 1v i I I E i outweighed the prejudice that may have resulted from their introduction into evidence. Guerrero v. Stare, 125 S0. 3d at 815. » Page 7 of 7 | | i