A.D. v. State

• Citation: 106 So.3d 67
• Decision Date: 06 February 2013
• Docket Number: No. 2D11–222.,2D11–222.
• Parties: A.D., Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

106 So.3d 67

A.D., Appellant,
v.
STATE of Florida, Appellee.

No. 2D11–222.

District Court of Appeal of Florida,
Second District.

Feb. 6, 2013.

[106 So.3d 68]

Ita M. Neymotin, Regional Counsel, Second District, Robert D. Rosen and Joseph T. Sexton, Assistant Regional Counsels, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

[106 So.3d 69]

LaROSE, Judge.

A.D., a juvenile, appeals his adjudication and the disposition of probation for burglary of a conveyance, grand theft of a motor vehicle, petit theft, criminal mischief, and trespass. See§§ 810.02(4)(b), 812.014(2)(c)(6), 812.014(3)(a), 806.13, 810.09(2)(a), Fla. Stat. (2010). A.D. argues that the trial court erred in denying his motions for judgment of acquittal. We affirm the criminal mischief, petit theft, and trespass adjudications. We reverse the adjudications for burglary and grand theft because the State failed to rebut A.D.'s hypothesis of innocence. As a result, we also remand for a new disposition hearing.

A minivan was stolen late at night from the Delara family's property. The Delaras prominently displayed “private property” and “no trespassing” signs. Ms. Delara noticed their minivan's lights on. She and her father went outside and saw that the minivan had crashed through a closed gate and had driven off. They also found their four-wheel all-terrain vehicle (ATV) smashed against the gate near a broken mailbox.

A deputy saw the stolen minivan speeding and swerving on and off the road. It turned onto a dirt road, hit a culvert, rolled over, and landed on the passenger side. Three youths were inside singing and moving their arms to music and making lewd gestures towards the deputy. A.D. was one of the three.

According to M.P., A.D. and K.B. were spending the night at his house. They were walking by the Delara property when M.P. saw the ATV and wanted to ride it. Without the owners' permission, the three boys jumped over the fence onto the property.

M.P. drove the ATV into the fence; the fence fell on his leg. A.D. helped to extricate M.P. For his part, K.B. got in and started the van, drove it through the fence, picked up M.P. and A.D., and drove away. Neither M.P. nor A.D. told K.B. to stop.

I. Analysis

We review the denial of a motion for judgment of acquittal de novo. See I.M. v. State, 917 So.2d 927, 929 (Fla. 1st DCA 2005). A.D. argues that the evidence was insufficient to establish that he entered the property with the intent to commit a crime. He also argues that the State failed to show that he did more than trespass onto the property and later get into the already stolen van. A.D. contends that the circumstantial evidence did not exclude his reasonable hypothesis of innocence that his two codefendants acted independently when M.P. wrecked the ATV and K.B. stole the van. See State v. Law, 559 So.2d 187, 188 (Fla.1989).

II. Burglary and Grand Theft of a Motor Vehicle

A.D. argues that the State's evidence of grand theft and burglary was insufficient because K.B. took the van without A.D.'s knowledge or encouragement while A.D. was trying to remove the broken gate from M.P.'s leg. The State was required to show that A.D. aided and abetted K.B. in stealing the van. See Jacobs v. State, 396 So.2d 713, 716 (Fla.1981). Nothing in our record indicates that A.D. knew that K.B. planned to steal the van. In fact, M.P. and A.D. ran away after the ATV crash; they entered the van only after K.B. had already driven it from the property.

G.C. v. State is instructive. 560 So.2d 1186 (Fla. 3d DCA 1990), abrogation on other grounds recognized by S.W. v. State, 999 So.2d 701, 702 n. 1 (Fla. 3d DCA 2008). There, the (Fla. 3d DCA 2008). There, the Third District held that merely being a passenger in a vehicle known to be stolen

[106 So.3d 70]

is insufficient to support a theft charge. “Use alone ... is not enough”; theft requires the specific intent to deprive the owner of the property. Id. at 1187. “In the context of an automobile theft, [intent] would be shown, if not by aid or participation in the taking of the vehicle, then by some exercise of dominion and control over it afterwards.” Id. Because G.C. never took control of the vehicle, the court reversed his adjudication of delinquency for both theft and burglary. Id. at 1187–88.

Like G.C., A.D. entered the van after K.B. had driven it off the property. A.D. did not commit theft because he did not exercise dominion or control over the van at any point. See id. Additionally, A.D.'s after-the-crash behavior fails to establish participation in the theft. See Valdez v. State, 504 So.2d 9, 10 (Fla. 2d DCA 1986). Thus, the State failed to present evidence inconsistent with A.D.'s hypothesis of innocence that, after trespassing on the Delaras' property and helping M.P., he became frightened and fled, subsequently making the bad decision to enter the stolen van. The trial court should have granted A.D's motion on the grand theft charge. See Law, 559 So.2d at 189 (“[I]f the state does not offer evidence which is inconsistent with the defendant's hypothesis, ‘the evidence [would be] such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law.’ ” (alteration in original) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974))).

The State also charged A.D. with burglary in connection with the van theft. Section 810.02(1)(b)(1), in relevant part, describes burglary as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter.” Indisputably, A.D. entered the van without the owner's permission. But the State still had to prove that A.D. intended to commit a crime in the van. See Drew v. State, 773 So.2d 46, 52 (Fla.2000) (“The language of the burglary statute, as drafted by the Legislature, requires both an entry and the requisite intent to commit a crime within the conveyance.”). Because the theft charge fails, so too must the burglary...