Collins v. State

• Decision Date: 14 October 1983
• Docket Number: No. 82-2321,82-2321
• Citation: 438 So.2d 1036
• Parties: Norman Gene COLLINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1036

438 So.2d 1036

Norman Gene COLLINS, Appellant, v. STATE of Florida, Appellee.

No. 82-2321.

District Court of Appeal of Florida Second District.

Oct. 14, 1983.

Jerry Hill, Public Defender, Bartow, Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.

RYDER, Judge.

Norman Gene Collins challenges his conviction for burglary of a structure and grand theft in the second degree. He urges four grounds for reversal, one of which is that the circumstantial evidence against him was insufficient as a matter of law. Because we agree and reverse as to this ground, we need not address the other grounds raised.

The charges against appellant and his codefendant, Alvin T. Scott, arose from a burglary of a Winn-Dixie store. The crux of the state's argument was that appellant aided and abetted in transporting Scott to the store, acting as a lookout, helping "case" the building prior to the burglary, and returning to the scene to help Scott escape.

A review of the evidence presented at trial is necessary for a complete understanding of the instant case. Gary Jarvie, a security guard on duty for Ernie Haire Ford, observed a silver-colored vehicle drive into the parking lot and stop in front of the Winn-Dixie store across Florida Avenue at approximately 1:40 a.m. Jarvie had seen the same car about one-half hour earlier going up and down the street between the two businesses. A black man with a crowbar in his hand exited the car, pried open one of the Winn-Dixie doors, entered, and began putting something into white garbage bags. The vehicle, which had left the scene while the prying took place but returned about thirty seconds before the police arrived, departed from the premises again. Police arrested Scott at the scene, confiscated two garbage bags filled with cartons of cigarettes, and placed a radio alert for the vehicle.

In response to the alert, a police officer initiated a traffic stop of a car and driver which fit the description given and which appeared to be leaving the burglary scene. Appellant, driver of the vehicle, jumped out of the car, asked why he had been stopped, and then stated that he was "just going out for some milk." When witness Jarvie arrived and identified appellant and his vehicle as the ones he had seen at the Winn-Dixie, appellant was arrested. The vehicle, an Oldsmobile, had a single trunk key inserted into the lock, a rope tied on the inside of the trunk hanging outside, and clear windows.

At trial Jarvie testified repeatedly that the car he had seen was a large silver Continental or Cadillac with tinted windows driven by a black man. Furthermore, he testified that because the parking lot was unlit and the vehicle windows were tinted, he could not say for sure that appellant's vehicle or appellant was the same vehicle and driver he saw in front of the Winn-Dixie store.

At the close of the state's case-in-chief, defense counsel moved for a judgment of acquittal based in part upon the ground that no evidence had been presented to indicate appellant's involvement beyond his alleged presence at the scene. The trial court denied the motion.

Although the automobile appellant was driving arguably fits the description of the vehicle which dropped off Scott at the Winn-Dixie, and appellant exhibited somewhat questionable behavior when stopped by the police, we agree with defense counsel's argument that there was no evidence of any relationship between appellant and Scott to indicate that appellant knew Scott was aware of Scott's activities, or did...