DR v. State, 98-2982.

• Decision Date: 05 May 1999
• Docket Number: No. 98-2982.,98-2982.
• Citation: 734 So.2d 455
• Parties: D.R., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

734 So.2d 455

D.R., a child, Appellant, v. STATE of Florida, Appellee.

No. 98-2982.

District Court of Appeal of Florida, First District.

May 5, 1999.

Nancy A. Daniels, Public Defender; and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; and Karla D. Ellis, Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, J.

Seventeen-year-old D.R. appeals the ruling of the trial court adjudicating him delinquent for the offenses of burglary of a dwelling (Count One) and grand theft (Count Two), and committing him to a Level 6 boot camp. D.R.'s theory of defense in Count One was that he believed he had consent to enter the dwelling, which was Eric Brandon's trailer. Challenging the adjudication in Count One, D.R. submits that once he offered evidence to establish consent to enter the trailer as an affirmative defense to burglary, the burden shifted to the State to disprove the consent defense beyond a reasonable doubt, and the State failed to satisfy its burden. Hansman v. State, 679 So.2d 1216 (Fla. 4th DCA 1996); Coleman v. State, 592 So.2d 300 (Fla. 2d DCA 1991) (owner of residence's testimony was sufficiently ambiguous on subject of consent to preclude burglary conviction of Coleman, who had entered residence to flush cocaine down toilet; owner testified that her teenage son may have given permission after Coleman sought his permission to enter, and that, in pretrial deposition, owner herself had indicated having given him permission). We agree that the State failed to meet its burden in Count One. As to Count Two, D.R. contends that the State failed to present competent evidence to show that he committed grand theft, and that the conviction cannot rest solely on a prior, unsworn inconsistent statement of a witness who subsequently recanted. Green v. State, 667 So.2d 789 (Fla. 1st DCA), approved as to that issue, 667 So.2d 756 (Fla.1995) (prior inconsistent statement of recanting alleged victim of child sexual abuse was insufficient, by itself without proper corroborating evidence, to sustain conviction, even if repeated by victim on multiple occasions); State v. Moore, 485 So.2d 1279, 1281 (Fla.1986) ("[I]n a criminal prosecution a prior inconsistent statement standing alone is insufficient to prove guilt beyond a reasonable doubt."). We agree that the State's evidence failed to link D.R. to the grand theft beyond a reasonable doubt. Accordingly, we reverse the adjudication of delinquency as to both counts and remand with directions that D.R. be discharged from both offenses.

Count One of the amended petition alleged that between September 20-24, 1997, D.R. "did unlawfully enter or remain in a structure," the dwelling of Eric Brandon on Lot 12, "with intent to commit the offense of theft or some offense therein." The pertinent sections of the burglary statute state:

810.02 Burglary.___

(1) "Burglary means entering or remaining in 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 or remain.

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(3) Burglary is a felony of the second degree .... if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:

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(b) Dwelling, and there is not another person in the dwelling at the time the offender enters or remains;

§ 810.02, Fla. Stat. (1997). The three essential elements of burglary of a dwelling are 1) knowing entry into a dwelling, 2) knowledge that such entry is without permission, and 3) criminal intent to commit an offense within the dwelling. T.S.J. v. State, 439 So.2d 966, 967 (Fla. 1st DCA 1983).

D.R. admitted the first element, "knowing entry." The period of time in question here is Saturday the 20th through Wednesday the 24th. Eric Brandon testified that he left his trailer on Friday the 19th and returned on Monday the 22nd, when he discovered that his $800 stereo, a $30 cellular phone, and some jewelry were missing from the residence. He said the window in Brandon's son's bedroom had been forced open and the screen forced through; the inside metal was forced in an upward direction. Brandon said the window space had not been broken, nor were the items missing, when he last visited the place on Friday the 19th. Prior to this incident, a teenager named Marcus had introduced Brandon to D.R., who needed a place to stay. Initially, D.R. was allowed to stay in the back seat of Brandon's car because Brandon did not want him in the house with Brandon's wife and son. However, after Brandon's car was repossessed, he let D.R. stay on the family couch in the residence for a couple of days right before the power was cut off and the Brandons moved out.

Brandon testified that on Friday the 19th he told D.R.: "Everything's cut off. I can't stay here with a four-month-old son, so I'm going to have to move back to my place in Quincy." Brandon offered to drop off D.R. somewhere. but D.R. said he preferred to walk up the road to his friend Andrew's house. Brandon told D.R. that they were leaving on that day and that D.R. should try to get back with them on Monday, when they would be around. Brandon testified that at that point, he and his family locked up the residence and left for the weekend. The lights had been cut off in the trailer. Brandon testified that D.R. knew they were moving out and were planning to come back to get the rest of their belongings because their small car could not carry many of their personal items. Brandon agreed that it is a fair statement that D.R. was not permitted to be in the residence after the power was turned off and it was locked up. Of the stolen property, only the cellular phone was returned to Brandon.

Brandon testified further that upon returning to the trailer on Monday the 22nd, he had talked to the neighbors to find out what had happened. Other than Marcus and Andrew, D.R. was about the only person who knew the Brandons were away that weekend. Brandon had asked Marcus to inquire of Andrew whether D.R. knew anything about the break-in. Andrew returned the cellular phone to Brandon on that same Monday.

On cross-examination, Brandon denied that D.R. had ever lived with him, but he admitted telling the police that he had known D.R. briefly, that D.R. had stayed on the couch for a couple of days, and that D.R. had been allowed to get some food if he was hungry. On redirect, Brandon, who had never asked D.R. for money in exchange for staying in the residence, said that he had let D.R. stay there out of the goodness of his heart. D.R. had spent two of the four days in the back seat of Brandon's car.

Mary Rae Keene, the Brandons' neighbor on Lot 13, testified that she had met D.R. when he was "staying with" or "living with" Brandon. After the power and water were cut off, Keene observed D.R. going in and out of the door of Brandon's trailer during the weekend in question. She said that D.R. had stayed in the residence by himself but that she had seen another boy visit the premises. A pizza delivery guy came by the residence during that period of time too. Another automobile pulled up as well, but darkness prevented Keene from observing what was happening then. After she became aware of the report of a burglary, Keene told the police what she had seen. Keene neither saw D.R. go through the window of the trailer nor observed him carrying out anything.

At the end of the State's case, defense counsel moved for a judgment of acquittal on both counts. Regarding Count One, counsel argued that the State had not made a prima facie case of burglary of the dwelling. The motion was denied, and the defense presented its case. D.R., who was 15 years old at the time of the offenses, testified that after Marcus introduced him to 18-year-old Brandon, D.R. had lived with Brandon and his 16-year-old wife and their baby for about two weeks. Prior to that, D.R. had run away from Disc Village, where he had been placed by virtue of his family's wishes rather than because of a sanction related to any delinquency. D.R. said that on one occasion, "Rick" (Brandon) had locked his house keys in the residence and had asked D.R. to go through the window of the baby's room to open up the place. The screen already was ripped because it was an old trailer, and the screen was not connected to the window. Brandon first had stuck his hand inside, turned something, and opened the window, but he was too large to fit through the window space. Accordingly, he asked D.R. to crawl through the window and open the front door.

D.R. testified that on Friday the 19th, Brandon said he was planning to move out and was going to stay at Brandon's mother's place because the lights in the trailer had been cut off. After this conversation with Brandon, D.R. talked to his own mother, after which he decided to return to the trailer and eat supper. D.R. testified: "[A]t that point, I didn't know if I was going to be coming back or not." It was his understanding that he could come back to the trailer to get his clothes. D.R. testified that Brandon had told him that Brandon would be going there during the weekend to move his stuff, and that D.R. could come in and get his clothes in the back part of the residence whenever he wanted to on that weekend. On Saturday the 20th, D.R. and a friend went to the trailer to move D.R.'s own belongings. D.R. said Brandon had left the front door unlocked. D.R. testified that he went in and got his clothes, and "that's it." He denied taking anything other than his clothes from the trailer. Furthermore, he denied knowing anything about the stereo or the cellular phone, and he said he had not given the cellular phone to Andrew. D.R. indicated that he had waited at the trailer for Brandon for a while but that he never saw Brandon...