[align=left]
- 23 -

supported by competent, substantial evidence." Reynolds v. State, 934 So. 2d 1128, 1145 (Fla. 2006) (citing Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002)). "If, after viewing the evidence in a light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Id. at 1145.



We conclude that the evidence was sufficient in this case. Nunn identified Hojan as the shooter in a photo lineup at the hospital and also in court. Bolt cutters were found in the back seat of Hojan's truck, and a forensic expert testified at trial that those same bolt cutters had cut two of the locks at the Waffle House. Hojan confessed to murdering the victims and shooting Nunn, and in those confessions, he demonstrated an in-depth knowledge of the crime and the crime scene. Other evidence also linked Hojan to the crime, including a bag of change and money orders found in Hojan's parents' house and testimony that the bullet casings and some of the bullets fired at the victims came from a gun linked to Hojan. Based on this accumulation of evidence, there was competent, substantial evidence supporting the jury's verdicts. Accordingly, we conclude that sufficient evidence supports Hojan's murder convictions.


Proportionality


"In conducting its proportionality review, this Court must compare the totality of the circumstances in a particular case with other capital cases to







- 24 -

determine whether death is warranted in the instant case." Rimmer v. State, 825 So. 2d 304, 331 (Fla. 2002) (citing Bates v. State, 750 So. 2d 6 (Fla. 1999)).


Absent some demonstrated error, this Court "accept[s] the trial court's findings on the aggravating and mitigating circumstances and consider[s] the totality of the circumstances of the case in comparing it to other capital cases." Rodgers v. State, 948 So. 2d 655, 670 (Fla. 2006).


We conclude that Hojan's death sentence is proportional. The trial court found that six aggravators applied in this case: (1) Hojan committed a prior capital felony--the contemporaneous murders and attempted murder, Sentencing Order at 3; (2) Hojan committed the murders in the course of an armed kidnapping, id. at 3- 4; (3) the murders were committed to avoid arrest, id. at 4; (4) the murders were committed for financial gain, id. at 5; (5) the murders were HAC, id. at 6-8; and (6) the murders were CCP, id. at 8. One statutory mitigator applied, that Hojan had no significant prior history of criminal activity, but it was undercut by the contemporaneous crimes. Id. at 11-12. The two nonstatutory mitigators found were: (1) Hojan was a good son, parent, and provider, id. at 15; and (2) he showed good behavior while incarcerated and during the proceedings, id. at 15. The trial court gave each aggravator "great weight" individually and gave each mitigator "little weight" individually.







- 25 -

This Court has found to be proportional death sentences that were similar in terms of aggravators versus mitigators, as well as sentences that involved fewer aggravators and more mitigators. In Ibar v. State, 938 So. 2d 451, 458 (Fla. 2006), two individuals beat one victim for over twenty minutes and then murdered all three victims by shooting them in the backs of their heads and in their backs. The trial court found five aggravating factors:




(1) Ibar was previously convicted of another felony involving the use or threat of violence to the person; (2) the capital felony was committed while Ibar was engaged in the commission of a robbery or burglary; (3) the capital felony was committed for the purposes of avoiding or preventing lawful arrest; (4) the capital felony was especially heinous, atrocious, or cruel; and (5) the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.


Id. The trial court also found two statutory mitigating factors (Ibar had no significant prior criminal history and his age of twenty-two) and nine nonstatutory mitigating factors. Id. at 459.5 We held that Ibar's death sentence was












5. The nine nonstatutory mitigators were:





(1) Ibar was a good and respectful young adult; was a good, obedient and caring child; committed good deeds and had good characteristics; had a loving relationship with his mother; is a caring person (considered collectively and given medium weight); (2) Ibar is a good worker (given minimal weight); (3) Ibar can be rehabilitated in prison, is unlikely to endanger other prison inmates, and would make a peaceful adjustment to prison life (given very little weight); (4) Ibar was a good friend (given minimal weight); (5) Ibar exhibited good courtroom behavior and a good attitude (given minimal weight); (6) Ibar is religious (given minimal weight); (7) Ibar's family and friends







- 26 -

proportional. Hojan's death sentence is similarly aggravated when compared to Ibar's, but Hojan's sentence involved less mitigation. Thus, Ibar demonstrates that Hojan's death sentence is proportional.


Similarly, in Ocha, this Court held that a death sentence resulting from a strangulation murder was proportional. 826 So. 2d at 965-66. Ocha involved the prior violent felony aggravator (from a prior robbery and attempted murder) and the HAC aggravator, weighed against fifteen nonstatutory mitigators stemming from Ocha's background. Id. at 960. Ocha also involved a waiver of the defendant's right to present mitigating evidence. Id. at 961. This Court not only concluded that Ocha's death sentence was proportional, it stated that "[c]learly, this case presents a murder which is among the most aggravated and least mitigated reviewed by this Court." Id. at 966. Hojan's sentence is more aggravated and less mitigated than Ocha's death sentence, and thus Ocha also demonstrates that Hojan's death sentence is proportional. Accordingly, based on a





care for and love him and he married his fiancé while in jail (given minimal weight); (8) Ibar comes from a good family (given minimal weight); and (9) Ibar expressed remorse (given minimal weight).


Id. at 459.







- 27 -

comparison of Hojan's death sentence to other similar death sentences, we conclude that Hojan's death sentence is proportional.6


CONCLUSION


For the forgoing reasons, we deny relief on all of Hojan's asserted claims, conclude that sufficient evidence exists to support Hojan's death sentence, find Hojan's death sentence to be proportional, and thus affirm Hojan's convictions and death sentence.


It is so ordered.


WELLS, LEWIS, CANADY, and POLSTON, JJ., concur.


PARIENTE, J., concurs in result only with an opinion, in which QUINCE, C.J., concurs.


LABARGA, J., did not participate.


NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.


PARIENTE, J., concurring in result only.



I agree with the majority's decision to affirm Hojan's convictions and death sentences. I concur in result only because of my concerns regarding the majority's treatment of the merits of the excited utterance issue and its harmless error analysis. I thus write to address the issue of whether the victim's responses to












6. To the extent that Hojan raises various other issues in the portion of his reply brief addressing proportionality, we deny relief on those issues because Hojan raised and we addressed them elsewhere in his appeal, and they do not alter the result of the proportionality analysis.







- 28 -

police questioning constitute excited utterances and emphasize that the harmless error test is not one based on whether there is "overwhelming" evidence.



The objectionable statements were the victim's responses to leading questions by police during an interrogation. Although the majority states that we have "previously found statements given in question-and-answer exchanges by officers under similarly stressful statements to be excited utterances," citing to Henyard v. State, 689 So. 2d 239 (Fla. 1996), Henyard involved a very different set of circumstances where there was no indication that there was an interrogation as here:


When the officer arrived, he found Ms. Lewis, who was hysterical but coherent. At trial, the officer was permitted to recount statements Ms.


Lewis made to him on the front porch immediately after his arrival. The police officer testified that Ms. Lewis told him she had been raped and shot, identified her assailants as two young black males who fit the description of Henyard and Smalls, and said they had taken her children. Given these circumstances, we find that Ms.


Lewis was still experiencing the trauma of the events she had just survived when she spoke to the officer and her statements were properly admitted under the excited utterance exception to the hearsay rule.


Id. at 251.



As the district courts of appeal have observed, "[s]tatements made in response to police questioning are, by definition, not excited utterances." Strong v. State, 947 So. 2d 552, 556-57 (Fla. 3d DCA 2006); see also




J.A.S. v. State, 920 So. 2d 759, 763 (Fla. 2d DCA 2006); Blandenburg v. State, 890 So. 2d 267, 272 (Fla.







- 29 -

1st DCA 2004). That is because for the most part answers to an interrogation require reflection. Here, the transcript reflects that Officer Donnelly conducted an interrogation while the victim was in an emergency vehicle after being shot.


Certainly the victim would have been under the stress of having been shot, but the responses at issue were elicited during a series of questions concerning the identity and role of the participants in the crime, and the responses were one-word responses consisting of "Yeah," "Uh-huh," and "the Mexican."



I concur with the result reached by the majority, however, because I agree with the bottom line that the admission of this testimony was harmless error beyond a reasonable doubt. Yet, it is always helpful to remember that the harmless error test is not one of "overwhelming" evidence:


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 itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. This rather truncated summary is not comprehensive but it does serve to warn of the more common errors which must be avoided.


DiGuilio, 491 So. 2d at 1139.








- 30 -

In this case, when considering the brief reference to "the Mexican" as the shooter, compared with the other admissible and essentially identical testimony about the victim's identification of the defendant as the shooter, together with the defendant's own confession, it is clear that the error in this case was harmless beyond a reasonable doubt because there is no reasonable possibility that the admission of this evidence affected the jury's verdict as to Hojan's guilt.


QUINCE, C.J., concurs.



An Appeal from the Circuit Court in and for Broward County,


Paul L. Backman, Judge ­ Case No. 02CF10B


John G. George of John G. George, P.A., Fort Lauderdale, Florida, for Appellant

Bill McCollum, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, Florida, for Appellee
[/align]