D.A. v. State

• Decision Date: 11 June 1985
• Docket Number: No. 83-1646,83-1646
• Citation: 10 Fla. L. Weekly 1446,471 So.2d 147
• Parties: 10 Fla. L. Weekly 1446 D.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 147

471 So.2d 147

10 Fla. L. Weekly 1446

D.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.

No. 83-1646.

District Court of Appeal of Florida Third District.

June 11, 1985.

Bennett H. Brummer, Pub. Defender, and Robin H. Greene, Asst. Pub. Defender, for appellant.

Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.

Before HUBBART, NESBITT and JORGENSON, JJ.

HUBBART, Judge.

The respondent juvenile D.A. appeals an adjudication of delinquency for the offense of loitering and prowling [§ 856.021, Fla.Stat. (1983) ], entered below after a non-jury trial. He contends on appeal that the essential elements of the offense were not established below and that the court erred in denying his motion for judgment of acquittal at trial. We agree and reverse.

I

The facts of this case are as follows. On April 29, 1983, Officer David Bosworth of the Miami Police Department was on duty in a patrol car in the Overtown area of Miami. At 3:15 p.m., he received a call over his police radio to investigate a "disturbance" at 500 N.W. 5th Street. Upon arriving on the scene, Officer Bosworth discovered no disturbance but saw a white van parked in an alley in front of a vacant lot at this address. The houses bordering the alley were fully fenced so that there was no way of entry from these houses into the alley. Standing in front of the van was the respondent D.A. and an adult male. As Officer Bosworth backed up his patrol car and looked down the alley, the respondent D.A. and the adult male ran. Officer Bosworth then drove down the alley and observed three other people running away from inside one of the fenced yards along the alley. Officer Bosworth then radioed a description of the respondent D.A. and the adult male companion. He returned to the van and discovered that its ignition had been "punched" so that a screwdriver could be used to start it instead of a key; thick blue tape had been placed over the name "Tropical Provision Company" on the truck's side door; and extra tape was found on the hood and on the ground. Officer Bosworth was informed over his police radio that this van had been stolen that morning from Tropical Provision Company at 845 N.W. 71 Street in Miami.

Officer Mary Reed of the Miami Police Department was also on patrol car duty at this time. She received over her police radio a description from Officer Bosworth of the two people who were seen fleeing from the above-described alley. She proceeded directly to the scene and observed the respondent D.A. coming from behind one of the houses on the corner of N.W. 5th Avenue and 4th Street, about a half block from the spot where Officer Bosworth had first seen the two persons in question in the alley. The respondent D.A. looked at Officer Reed and turned to walk away. At that point, Officer Reed asked the respondent to stop and he did so. Officer Bosworth then arrived on the scene and identified the respondent. Efforts to speak to the respondent proved essentially futile as the officers spoke only English and the respondent, who spoke only Spanish, indicated that he could not understand them. Officer Bosworth then arrested the defendant for grand theft of the van and for loitering and prowling.

The state charged the respondent D.A. with loitering and prowling through a delinquency petition filed before the circuit court. The delinquency petition reads in pertinent part as follows:

"This child, on or about April 29, 1983, in Dade County, Florida, did unlawfully loiter and prowl at a place located at or near 433 N.W. 4th Street, Dade County, Florida, at approximately 3:15 P.M., in a manner not usual for law abiding individuals under circumstances that warrant a justifiable concern for the safety of the persons or property in the vicinity, to wit: STANDING BY A STOLEN MOTOR VEHICLE, ENTERING THE YARD OF A RESIDENCE NOT HIS OWN, RUNNING FROM THE AREA BETWEEN HOUSES AND/OR BEING UNABLE TO DISPELL [SIC] OFFICERS ALARM FOR THE SAFETY OF PERSONS AND/OR PROPERTY IN THE AREA, in violation of 856.021 Florida Statutes."

The respondent entered a denial and was tried before the court without a jury. At the trial, the above facts were established through the only two witnesses who testified: Officer Bosworth and Officer Reed. The respondent, through counsel, moved for a judgment of acquittal at the close of all the evidence arguing in some detail that the state had failed to establish a prima facie case of loitering and prowling. The trial court denied the motion and adjudicated the respondent delinquent. This appeal follows.

II

The offense of loitering and prowling, as proscribed by Section 856.021, Florida Statutes (1983), has two distinct elements which the state must establish at trial: "(1) The defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals; (2) such loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity." State v. Ecker, 311 So.2d 104, 106 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975). "Proof of both elements is essential in order to establish a violation of the statute," State v. Ecker, supra at 110, and each element must be proved beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

A

As to the first element, it must be established that the defendant engaged in incipient criminal behavior which law-abiding people do not usually engage in due to the time, place, or manner of the conduct involved. The gist of this element is aberrant and suspicious criminal conduct which comes close to, but falls short of, the actual commission or attempted commission of a substantive crime. It does not, however, involve behavior which constitutes no threat of immediate, future criminal activity. See Model Penal Code § 250.6 comment at 388-91 (1980).

In this connection, the statute is forward-looking, rather than backward-looking in nature. Its purpose is to punish a certain type of incipient criminal behavior before it ripens into the commission or attempted commission of a substantive criminal act. As the Florida Supreme Court stated in State v. Ecker, supra, "[t]he whole purpose of the statute is to provide law enforcement with a suitable tool to prevent crime ...," Id. at 110, and as stated in the comment to Section 250.6 of the Model Penal Code upon which the statute is patterned, State v. Ecker, supra at 107, "[t]his formulation limits the offense to its essential law enforcement rationale of justifying intervention to prevent incipient crime...." Model Penal Code § 250.6 comment at 391 (1980). Florida cases, in turn, sustaining loitering or prowling convictions have uniformly involved incipient crime situations which satisfy this element. For example, in Hardie v. State, 333 So.2d 13 (Fla.1976), the convicted defendant was observed at 2:55 a.m. rummaging through two separate cars at a closed gas station, but before he made any move to steal or attempt to steal the cars. In Bell v. State, 311 So.2d 104, 110-11 (Fla.), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975), the convicted defendant was found hiding in the bushes at a private dwelling at 1:20 a.m., but before he made any move to break into or attempt to break into the dwelling. In In re A.R., 460 So.2d 1024 (Fla. 4th DCA 1984), the adjudicated juvenile was observed on two occasions standing on the sidewalk in a high-crime area watching traffic at 10:00-11:00 p.m. while his companion entered fenced car lots, peeked into car windows and tried car doors, but before the juvenile made an overt act to aid and abet his companion in the commission of any burglary.

By way of contrast, however, this first element of the crime of loitering and prowling, i.e., unusual behavior, is not directed at suspicious after-the-fact criminal behavior which solely indicates involvement in a prior, already completed substantive criminal act. For example, in Patmore v. State, 383 So.2d 309 (Fla.2d DCA 1980), where a loitering conviction was reversed, the defendant was observed running from the police at 9:00 p.m. and, in the process, discarding a bag of marijuana on the street in the immediate vicinity of a recent armed robbery. His activity, the court concluded, was sufficient to justify a temporary investigative stop for robbery and to effect an arrest for possession of marijuana--all past and completed crimes--but insufficient to justify a conviction for loitering and prowling. The defendant's activity in no way pointed to the commission of future criminal activity. This is not to suggest, however, that the commission of a prior or on-going substantive crime necessarily negates the first element of the crime. For example, the defendant in Hardie had clearly committed a car burglary; the defendant in Bell had clearly committed a trespass; and the juvenile's companion in A.R. had clearly committed a burglary of the car lot--yet loitering and prowling convictions were upheld in each of these cases. It is only to point out that it is a sine qua non of the first element of this offense that the defendant's behavior must point to immediate future criminal activity and not refer exclusively to prior criminal activity as in Patmore.

By way of further contrast, this element is also not directed at non-aberrant, harmless behavior which, by its very nature, poses no threat of immediate future criminal activity. For example, in In re O.W., 423 So.2d 1029 (Fla. 4th DCA 1982), where a loitering and prowling adjudication was reversed, the police observed the juvenile, a 13-year-old boy, running with two companions from some bushes across a vacant field during school hours on a school day. When stopped, the boys stated they were skipping school. The court found, in effect, that the first element of the offense had not been established because...