Arroyo v. State, 96-2974

• Decision Date: 24 December 1997
• Docket Number: No. 96-2974,96-2974
• Citation: 705 So.2d 54
• Parties: 23 Fla. L. Weekly D53 Catalina ARROYO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 54

705 So.2d 54

23 Fla. L. Weekly D53

Catalina ARROYO, Appellant, v. STATE of Florida, Appellee.

No. 96-2974.

District Court of Appeal of Florida Fourth District.

Dec. 24, 1997.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Barbra Amron Weisberg, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, Judge.

The appellant was convicted of three counts of interference with the custody of a minor, in violation of section 787.03(1), Florida Statutes (1993), for taking her three minor children from the custody of their foster parent. The appellant's theory of defense was that she did not participate in the taking of her children from their custodian. Because we find that the state's evidence was not inconsistent with the appellant's hypothesis of innocence, the appellant's motion for judgment of acquittal should have been granted.

The three children of appellant, Catalina, and her husband, Primo, were adjudicated dependent in juvenile proceedings. The children were placed in foster care in 1991, where Catalina and Primo could visit them. ¹ In order to obtain reunification with their children, the parents were required to complete tasks under a performance agreement with HRS. A short time before the date of the children's disappearance, the parents went before the court to request a longer visit with the children for the purpose of taking them to a restaurant for their older son's birthday. The court granted this request.

On the appointed day, Primo and Catalina drove to the park where the foster mother delivered the children to their care. They agreed that they would return the children by 7 p.m. that night, and drove off with the children in the car. When they had not returned to the park by 8 p.m., the foster mother called the police.

Instead of going to the birthday dinner at the restaurant, Primo headed for Mexico. His son testified that during the trip, Primo did all of the driving. He paid for all of the gas and food for the family. Although the son never heard his parents talking throughout the trip, he admitted that Primo was generally the dominant figure--that he "kind of ran the show" in the family. The foster mother, on the other hand, did not observe any dominance of one parent over the other in her dealings with them.

The police investigated the disappearance of the family and contacted the employers of Catalina and Primo. Catalina's employer was not a witness at the trial, and the investigating officer testified only that the police had asked her employer to contact them if Catalina showed up at work. ² When the police went to Catalina and Primo's home, they found that nothing appeared out of place. The parties' clothes and personal effects were all still there, as though they had left on the spur of the moment, according to the police.

While an extensive search for the children was ongoing, the family stayed in Mexico but later moved to Texas for Primo to find work. During their stay in Texas, the parents were arrested on the Florida warrants for interference with the custody of their children, at which time they were returned to Florida.

After the state rested, Catalina moved for judgment of acquittal, which was denied. We do not recount fully the evidence which she offered in her defense by way of her husband's testimony, since the " 'jury should never have been given the case because appellant's motions for directed verdict should have been granted.' " Willis v. State, 497 So.2d 947, 948 (Fla. 1st DCA 1986)(quoting Davis v. State, 436 So.2d 196, 198 (Fla. 4th DCA 1983)). ³ The jury found her not guilty of three counts of removing a minor from the state or concealing a minor contrary to the court order, but she was found guilty of three counts of interference with custody.

In moving for a judgment of acquittal, the defendant admits all facts in evidence and every conclusion favorable to the State which may be reasonably inferred therefrom. See State v. Law, 559 So.2d 187, 188 (Fla.1989). Circumstantial evidence can support a conviction only if it is consistent with guilt and inconsistent with any reasonable hypothesis of innocence. See id. The state is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence that is inconsistent with the defendant's theory of events. See id. at 189. If the state does not offer evidence that is inconsistent with the defendant's hypothesis of innocence, then the state's evidence would be insufficient as a matter of law. See id. at 188-89.

The jury convicted Catalina of interference with custody, in violation of section 787.03(1), which provides, in pertinent part:

Whoever, without lawful authority, knowingly or recklessly takes or entices, or aids, abets, hires, or otherwise procures another to take or entice, any child 17 years of age or under or any incompetent person from the custody of his parent, his guardian, a public agency having the lawful charge of the child or incompetent person, or any other lawful custodian commits the offense of interference with custody and shall be guilty of a felony of the third degree....

Catalina argues that the only theory to support her conviction for interference with custody is that she aided and abetted her husband in taking or enticing the children from their lawful custodian. However, the state contends that she could be held liable as a principal and may have planned the whole disappearance. The proof necessary to convict under either theory is the same:

If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if she had done all the things the other person did if: (1) the defendant had a conscious intent that the criminal act be done and (2) the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person ... to actually commit the crime.

Fla.Std.Jury Instr. (Crim.) 3.01, [p. 32a]; see Willis, 497 So.2d at 947; G.C. v. State, 407 So.2d 639 (Fla. 3d DCA 1981).

With respect to the intent element, " '[w]here there is no direct evidence of intent, the circumstantial evidence relied upon to show such an intent must be such as to preclude every reasonable inference that the defendant did not intend to participate in the criminal activity.' " In the Interest of A.R., 460 So.2d 1024, 1024-25 (Fla. 4th DCA 1984)(quoting A.Y.G. v. State, 414 So.2d 1158, 1158-59 (Fla. 3d DCA 1982)). In addition, the act or word necessary to assist or encourage the commission of the offense must be indicative of participation in the criminal activity and must not equally support a hypothesis of innocence.

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