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Bonine v. State3/28/2002
ce was sufficient. United States v. Townsend, 924 F.2d 1385, 1414 (1991). 502 U.S. at 59, 112 S.Ct. at 474.
In sum, a guilty verdict will be upheld if the jury was presented with two legitimate theories of guilt, although the evidence on one theory was insufficient. See, e.g., Mungin (jury was instructed that it could find defendant guilty of first degree murder based on either premeditation or felony murder; conviction upheld based on felony murder since evidence was sufficient to support that ground even though evidence was insufficient to support premeditation and judge erred in instructing the jury on this ground).
However, reversals are required where the jury may have convicted the defendant on a legally improper theory. See, e.g., Tricarico (defendant was entitled to new trial after conviction for first degree murder based on either premeditation or felony murder even though premeditation was supported by the evidence; felony murder theory was invalid as it was predicated on attempted trafficking in cocaine which at the time was not a predicate crime for felony murder and jury did not specify its basis for the verdict) ; Mosely (conviction for attempted manslaughter reversed where jury instructed that it could find the defendant guilty based on his intentional act or culpable negligence and culpable negligence was not a basis for an attempted manslaughter conviction).
This case involves a legal error rather than insufficiency of the proof. In Tyner v. State, 805 So.2d 862 (Fla. 2d DCA 2001), the second district explained that there are two alternate ways to prove the commission of DUI offenses: actual impairment or a presence of a statutory blood alcohol level. Actual impairment may be established in two ways. One way is by proof of circumstances without resort to blood alcohol levels. This proof would consist of evidence such as the driver's behavior, erratic manner of driving and the odor of alcohol.
The other way to prove actual impairment is by use of the implied consent law and blood alcohol test to create the statutory presumption that the driver was impaired.
Here the jury was instructed that it could presume Bonine was impaired based on his test results. This instruction was erroneous as a matter of law and not because of any deficiency in the proof at trial. It is unknown whether the jurors followed their instructions and presumed Bonine to be impaired or whether they determined that from the evidence. Since one of the ways to prove the offense was legally inadequate, Bonine's conviction must be reversed and the cause remanded for a new trial.
In McBride v. State, 2002 WL 236620 (Fla. 2d DCA Feb. 20, 2002), a case similar to the present one, the court held that the error in instructing the jury on the statutory presumptions of impairment was harmless. But McBride did not apply the legal error/insufficiency proof analysis discussed above. Rather, the court simply concluded that the error was harmless because of the "overwhelming" evidence of actual impairment presented by the state.
However, overwhelming evidence on one valid alternative ground or the harmless error test has no application to a case involving an invalid alternative ground, because no one can say which ground was relied on; ergo, the error is per se harmful. Wilhelm v. State, 568 So.2d 1 (Fla. 1990). As explained in State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986):
The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute i
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