Evans v. State, 93-2591

• Decision Date: 24 October 1994
• Docket Number: No. 93-2591,93-2591
• Citation: 643 So.2d 1204
• Parties: 19 Fla. L. Weekly D2279 Tracy Leon EVANS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1204

643 So.2d 1204

19 Fla. L. Weekly D2279

Tracy Leon EVANS, Appellant, v. STATE of Florida, Appellee.

No. 93-2591.

District Court of Appeal of Florida First District.

Oct. 24, 1994.

Nancy A. Daniels, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Sonya Roebuck Horbelt, Asst. Atty. Gen., Tallahassee, for appellee.

WEBSTER, Judge.

In this direct criminal appeal, appellant seeks review of convictions, based upon an aiding and abetting theory, for shooting into a building and criminal mischief. He argues that the trial court erroneously denied his motion for a judgment of acquittal as to both charges, because the evidence was legally insufficient to establish that he had aided or abetted the commission of either offense. We agree and, accordingly, reverse.

The only evidence presented at trial which tied appellant in any way to the offenses charged was a statement voluntarily given by appellant to law enforcement officers shortly after the offenses had been committed. No other evidence was offered which suggested any involvement by appellant in either offense.

Viewed in a light most favorable to the state, the evidence presented at trial consisted of the following. At about 9:15 p.m. on a Sunday evening, the victims' home and store were sprayed with bullets. (Some 57 rounds were later counted.) Miraculously, nobody was injured. Having heard the gunfire, a witness looked out and saw "a sporty" "step-side, new modeled Chevrolet pickup" which was "fancy colored," either "a teal blue or a teal green." All that the witness was able to say about the occupants of the truck was that there were at least three black people in the rear. Approximately an hour later, a truck matching the description given to law enforcement was stopped, some 14 or 15 miles from the site where the shooting had occurred. There were two black males in the rear of the truck, and three in the cab. The witness who had seen the truck earlier was brought to the site where it had been stopped, and positively identified it. The occupants of the truck were transported to a detention facility for questioning. After having been advised of his rights, appellant agreed to give a statement, a tape recording of which was played for the jury.

In his statement, appellant said that, earlier that day, Kelvin Godfrey had called him and told him that a friend of theirs had been beaten up by the owner of the store. He and Wendell Scott, who owned the truck, drove to Godfrey's house, to see the friend who had been beaten. When they arrived, the friend was not there. They settled in to watch a ball game on television. Godfrey and two other individuals, Tim Garrett and "a black guy we don't know," began discussing shooting out the windows of the store in retribution for the earlier beating of their friend. It seemed to appellant as though the other three had discussed such a plan earlier, before he and Scott had arrived. When the ball game ended, all five got into Scott's pickup. Scott was driving, and appellant was in the passenger seat. The other three individuals were all in the rear. They drove by the store, and one or more of the individuals in the rear fired at the store. Appellant was not paying too much attention, because he was listening to the radio. After the shooting, Scott drove back to Godfrey's house, where Godfrey, Garrett and the third person got out. Scott and appellant then left. The other three people in the truck when it was stopped had had nothing to do with the incident. Appellant was familiar with firearms because he had formerly been a correctional officer. However, he had not "touched a gun" since he had left that job.

To secure a conviction on an aider and abettor theory, the state must establish (1) that the defendant helped the person who actually committed the crime by doing or saying something that caused, encouraged, incited or otherwise assisted that person to commit the crime; and (2) that the defendant intended to participate in the crime. E.g., Howard v. State, 473 So.2d 841 (Fla. 1st DCA 1985). Given the evidence presented at trial, both the trial court and the jury were obliged to accept appellant's statement as true, because it was reasonable, unrebutted and unimpeached. E.g., Dudley v. State, 511 So.2d 1052 (Fla. 3d DCA 1987). In fact, but for appellant's statement, there was no evidence even placing appellant at the scene of the offenses.

We are unable to distinguish the facts of this case from those in C.P.P. v. State, 479 So.2d 858 (Fla. 1st DCA 1985). There, the appellant had been found to have committed the offenses of burglary and grand theft, based upon an aider and abettor theory, and adjudicated a delinquent child. On appeal, he argued that the evidence had been legally insufficient to establish his guilt. The court summarized the evidence as follows:

The evidence against appellant consists essentially of the testimony of a store manager stating that his store was burglarized, ... and appellant's confession, admitting his presence in an automobile at the store premises while two other persons left the car, and returned two and one-half hours later, placing four or five bags in the trunk. Appellant also admitted having prior knowledge that the two others intended to burglarize the store and take goods therefrom. Finally, he admitted that another person remained in the car for the purpose of serving as a lookout.

Id. at 859. Noting that " 'mere knowledge that an offense is being committed is not the same as participation with the requisite criminal intent,' " and that "presence at the scene of the offense and flight from the scene are insufficient to establish participation" (id.), the court reversed, holding that, as a matter of law, the state had failed to establish that the appellant was guilty, on an aider and abettor theory, of either offense.

Viewed in a light most favorable to the state (but accepting as true appellant's uncontradicted and unimpeached version of what transpired), the evidence presented at trial established that appellant knew, when he got into the truck, that one or more of the persons in the rear intended to shoot out the windows of the store; that one or more of the persons in the rear of the truck did shoot at the store as the truck drove by; and that appellant was a passenger in the cab of the truck when the shooting occurred. Based upon C.P.P. v. State, such evidence is legally insufficient to establish appellant's guilt on an aider and abettor theory, and his convictions must be set aside. Accordingly, appellant's convictions for shooting into a building and criminal mischief are reversed, and the case is remanded with directions that appellant be discharged.

REVERSED and REMANDED, with directions.

ALLEN, J., concurs.

LAWRENCE, J., dissents with written opinion.

LAWRENCE, Judge, dissenting.

I respectfully dissent, for I am of the view that the trial judge did not err in refusing to set aside the jury verdict finding Evans guilty. The controlling authority in this case is our decision in A.B.G. v. State, 586 So.2d 445 (Fla. 1st DCA 1991), dismissed, 605 So.2d 1261 (Fla.1992). The facts recited in that case are as follows:

The only witness at the adjudicatory hearing was a security officer at an Albertson's store in Jacksonville, Florida. He testified that on October 25, 1990, he saw four boys, including the appellant, enter the store. The group proceeded directly to the condom section.

Three of the boys, including the appellant, stood elbow-to-elbow directly in front of the condoms. The other two boys began removing boxes of condoms from the display. One of the boys broke open a box of two condoms, removed them from the box, and placed them in the inside pocket of his jacket. The boy who stood immediately next to appellant put two boxes into the right front pocket of his jacket. Appellant (at least four or five times) looked down at the condoms, then to the front of the store and to the rear of the store. Appellant's actions were continuous, occurring both before and after the other boys stuffed the condoms into their pockets. Appellant and the other boys also conversed during the theft. The fourth boy stood behind the other three and also looked to the front and back of the store.

The boys walked together to the front of the store and past the cash register without paying for the merchandise. As they attempted to exit the store, they were confronted by the...