Paese v. State

381 So.3d 4

Katina PAESE, Petitioner,

v.STATE of Florida, Respondent.

No. 4D2023-1103

District Court of Appeal of Florida, Fourth District.

[February 28, 2024]

Petition for Writ of Prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Edward H. Merrigan, Jr., Judge; L.T. Case No. 20-011120CF10A.

Kenneth David Padowitz and Joshua Padowitz of Kenneth Padowitz, P.A., Fort Lauderdale, for Petitioner.

Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner, Senior Assistant Attorney General, West Palm Beach, for Respondent.

Artau, J.

This case presents us with the question of whether a high-rise condominium dweller may, consistent with Florida’s Stand Your Ground ("SYG") law, use non-deadly force to prevent or terminate the tortious interference with her personal property.

The State charged Katina Paese ("Paese") with felony battery on a code inspector.¹ Prior to trial, Paese moved to dismiss the charge on grounds that the circumstances of the incident presented a prima facie case of a justifiable use of non-deadly force pursuant to the SYG law. In support of her motion, Paese argued that the SYG law gave her the statutory right to use non-deadly force against the code inspector and three other men involved in the incident because they "were wrongfully interfering with her personal property [by] physically and visually intruding into her private condominium unit." She also argued that the State could not overcome "her prima facie claim of self-defense immunity from criminal prosecution" pursuant to section 776.032(4), Florida Statutes (2020), which places the "burden of proof by clear and convincing evidence" on the State.

Likewise, Paese argues in the petition she filed here that this case "stands at the intersection" of our SYG jurisprudence and her right to privacy. She specifically contends, as she did in the trial court, that the code inspector’s unauthorized "visual search" of the "interior spaces" of her unit justified her use of non-deadly force to prevent or terminate the "taking of photographs" of "the interior of her home." She further argues that the State failed to prove by clear and convincing evidence that the non-deadly force she employed to terminate the encounter was objectively unreasonable.

We agree with Paese’s arguments. We therefore conclude that Paese is entitled to immunity from prosecution because her use of non-deadly force to prevent or terminate the tortious interference with her personal property was consistent with the level of authorized force permitted by the SYG law.

Background

At the time of the incident at issue, Paese was a resident of a high-rise condominium complex. One of the condominium’s elevators opens into Paese’s private unit with a key fob that provides her with exclusive access. The evidence presented at the immunity hearing established that the incident at the heart of this case began when she threw a roll of duct tape into the interior of the elevator after four men used a "master" key fob to override her exclusive access by stopping on her floor and opening the elevator door that separates the elevator’s interior from Paese’s unit. Paese threw the roll of tape from a place comfortably within the interior of her unit and in the direction of the four men who were standing in the open elevator as the elevator rested at the private landing for her unit.

When Paese first observed the four men in the open elevator, one of them had extended his arm into an area described as a "foyer" to hold the elevator door open. That individual was the condominium’s property manager whom Paese knew. Paese did not know the other three men.

Thereafter, Paese saw one of the four men raise his cell phone to begin taking photographs of the interior of her unit. That man was the code inspector alleged to be Paese’s victim.

It is undisputed that Paese’s alleged victim was not in a uniform signifying his status as a code inspector. It is also undisputed that the alleged victim never showed Paese his code inspector’s badge at any point during the incident, nor did he verbally identify himself to her as being a code inspector.

Paese testified that she was "shocked" when she saw the four men, none of whom she was expecting at that time, in the open elevator. In fact, immediately prior to their arrival, Paese had expressly told a building security officer, who was calling on the property manager’s behalf to request Paese’s consent for access to her unit, that it was not a good time for the property manager to bring anyone up to her unit. In other words, Paese did not consent and had instead notified the men not to come to her unit before they suddenly appeared in the open elevator at the threshold of her unit taking pictures of the interior of her home despite the undisputed fact that she never gave permission for any of the men to open the elevator door at the private landing that provides exclusive access to her unit.

Paese explained her reaction upon seeing the four men as follows:

Well, I was very upset, because I clearly told them that they were not allowed to come up to my unit, and they’re not supposed to, and [the property manager] clearly overrode the security to come up and used a master fob, to override the security to come up to my unit. …. That’s the only way you can get up there. … So I was very mad, I was very upset with him, and I said how dare you come up here without my permission. …. He overrode the security to come up to my unit without my permission. I never gave him permission to come up and that is a rule in our building. You do not come up without a unit owner’s permission.

….

I’m yelling at them to leave. I said leave, get out of here, get out of here, how dare you come up here to my unit, how dare you come up here. How dare you come up here. I said you don’t have permission to come up to my unit, leave, leave, stop taking photos of me, stoptaking photos. And they wouldn’t stop and they wouldn’t leave.

As the alleged victim himself admitted, none of the men pressed the elevator button to leave after Paese demanded that they do so, nor did the property manager remove his arm that extended into Paese’s foyer to keep the elevator door open to her unit.

Paese then approached the open door of the elevator and continued demanding that the men leave. When they did not, Paese reached into the elevator and swatted the alleged victim’s cell phone out of his hand, knocking it to the elevator’s floor. At that point, the property manager removed his extended arm as a barrier to the elevator door closing and ended the encounter. This constituted the extent of any physical contact between Paese and the alleged victim during the entirety of the incident. The code inspector suffered no physical injuries in the incident.

Paese testified that her key fob provides her exclusive access to her unit. In addition, she testified that the key fob does not provide her with access to any other unit or foyer. As Paese explained, "it’s only programmed for my side of the elevator, on my floor, that’s it." Paese testified that she, therefore, considers her key fob "to be the key to open the door to [her] private residence."

An assistant property manager who was not involved in the incident testified for the State. She described the area into which the elevator opens at Paese’s unit as a "foyer," which she considered "a limited common element." However, the assistant property manager did not provide any documents establishing the legal status of the foyer, and the State did not introduce any such documents into evidence.

Paese testified that nobody in the building has a right to access her foyer or the rest of her unit without her permission. Paese also described the foyer as "a little area" in her private unit for her exclusive use:

Everyone in my stack with that particular style of condo, with the private elevators, everybody decorates their vestibules, put[s] shoes, furniture, plants, your own tile, you’re responsible for the painting, the light fixture in there that’s [sic] you pay for that electricity, all of it is custom to however you want to make it…. It’s just a little area.

Contrary to Paese’s testimony, the assistant property manager testified that "anyone in the building can access her foyer" with his or her key fob. The assistant property manager also testified that a secondary door was supposed to be in between the foyer and the rest of Paese’s unit. However, the three men who accompanied the code enforcement officer at the time of the incident were aware that Paese’s secondary door was missing because of ongoing planned renovations. Indeed, the reason they brought the code enforcement officer to Paese’s unit was to document the missing secondary door. Thus, the four men used a master key fob to override Paese’s exclusive access and open the elevator door into Paese’s unit knowing full well that it would provide them with unobstructed access to the interior of the unit, including the personal property of Paese and her family located not only in the foyer area, but also in the rest of her unit.²

Less than a week after the immunity hearing, but before the trial court ruled on Paese’s motion to dismiss, defense counsel moved to reopen the proof for the purpose of presenting additional evidence showing that Paese’s key fob provides elevator access to only her unit, as she testified, contrary to the assistant property manager’s testimony that any resident’s key fob can provide access to any unit’s foyer in the building. The trial court denied defense counsel’s motion without comment.

Subsequently, after deposing both the property manager and the assistant property manager, defense counsel sought reconsideration of the trial court’s decision not to allow the requested reopening of the proof. In support of this motion, defense counsel presented the trial court with excerpts from the assistant property manager’s deposition in which she recanted her testimony...