J.B. v. State, 4D12–1156.

• Decision Date: 05 March 2014
• Docket Number: No. 4D12–1156.,4D12–1156.
• Citation: 166 So.3d 813
• Parties: J.B., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

166 So.3d 813

J.B., a child, Appellant

v.STATE of Florida, Appellee.

No. 4D12–1156.

District Court of Appeal of Florida, Fourth District.

March 5, 2014.

Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

WARNER, J.

We grant appellant's motion for rehearing, vacate our prior opinion, and substitute the following in its place.

A juvenile appeals her adjudication for petit theft. She claims that the court erred in allowing a store security officer to testify as to another officer's statement that the appellant had committed a theft of store merchandise. We agree with the appellant that this was inadmissible hearsay. Further, because this was the only evidence of theft, the appellant's confession was likewise inadmissible because the state failed to prove the corpus delicti of the crime. For these reasons, we reverse.

Appellant, J.B., was charged with petit theft of “fashion jewelry” from JCPenney, in violation of section 812.014(1)(a) and (3)(a), Florida Statutes (2011). At the trial on the charge, the state notified the court that neither the store manager nor the store security officer, who allegedly witnessed the theft, was available to testify, as they no longer worked for the store. The state then called the arresting officer, who testified that he had been called to the store to investigate a shoplifting incident involving a girl taking a bracelet. He arrested J.B. based on an affidavit from the unavailable store security officer. The arresting officer had not personally witnessed the theft.

A current security officer at JCPenney testified, over a hearsay objection, that the absent security officer told him that J.B. had put a bracelet on her wrist and left the store. The testifying officer went with his co-worker to approach J.B., who was standing just outside the store. They took her to a back office and called their manager. There, they filled out a form for J.B. to sign which was an “acknowledgment of guilt.”

When the state moved to introduce the form, J.B. objected on the grounds of corpus delicti. She argued that there was no evidence, other than hearsay, of the crime of theft, because neither the arresting officer nor the testifying store security officer had seen the theft. The court denied the motion. On cross-examination, the store security officer admitted that the acknowledgment of guilt form was not signed by J.B. but only by his co-worker, the absent store security officer. Furthermore, he could not recall exactly what occurred in the filling out of the acknowledgment form.

After presentation of the evidence, the defense moved for a judgment of dismissal, which was denied. The court found J.B. guilty, withheld adjudication, and issued a stern judicial warning. J.B. appeals.

Although “[t]he standard of review for admissibility of evidence is abuse of discretion[,] ... a trial court's discretion is limited by the rules of evidence” and “[w]hether or not [a] statement is hearsay is a legal question subject to de novo review.” Padgett v. State, 73 So.3d 902, 904 (Fla. 4th DCA 2011) (quoting Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001), and K.V. v. State, 832 So.2d 264, 265–66 (Fla. 4th DCA 2002) ).

The store officer's recitation of his co-worker's statement that J.B. took the store bracelet is classic hearsay. It is “a statement, other than one made by the declarant while testifying at the trial ... offered in evidence to prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat. (2011). This hearsay statement was the only evidence of the theft, other than the alleged acknowledgment of guilt form, which was not signed by J.B. Thus, its admission was not harmless.

On appeal, however, the state seeks to justify the hearsay statement's admission as necessary to establish a logical sequence of events in the investigation of the theft. We reject this rationale, as we did of similarly prejudicial testimony in Saintilus v. State, 869 So.2d 1280 (Fla. 4th DCA 2004). There, we held that the trial court erred in allowing two detectives to testify that: (1) in interviewing witnesses, a detective learned the nickname of a suspect; and (2) someone from the police told a detective that the defendant had that nickname. Id. at 1281–82. We admonished the state for the use of rank hearsay:

In spite of substantial authority condemning this attempt to adduce prejudicial hearsay, the state often persists in offering this kind of hearsay to explain the “state of mind” of the officer who heard the hearsay, or to explain a logical sequence of events during the investigation leading up to an arrest. This type of testimony occurs with the persistence of venial sin. The state's insistence on attempting to adduce this particular brand of hearsay requires trial judges to be constantly on their guard against it.

... The only purpose of this testimony was to admit these hearsay statements to link defendant to the crimes, even though such hearsay is clearly inadmissible.

Id. at 1282 (emphasis added); see also State v. Baird, 572 So.2d 904, 908 (Fla.1990) (finding evidence introduced to show logical sequence of events should not have been admitted and noting “the inherently prejudicial effect of an out-of-court statement that the defendant engaged in the criminal activity for which he is being tried”); K.V., 832 So.2d at 266 (finding erroneous admission of hearsay statement was not harmless error where “the statement is clearly incriminating and was presented by the only witness identifying [the defendant] as the perpetrator”). Just as in Saintilus, the only purpose of the evidence was to link J.B. to the crime. It was not necessary to prove a logical sequence of events. It was hearsay and inadmissible.

Without the hearsay statement of the absent security officer, the state also failed to prove the corpus delicti of the petit theft prior to introducing J.B.'s alleged confession through the acknowledgment of guilt form. The trial court's admission of a confession over a corpus delicti objection is reviewed for an abuse of discretion. Bribiesca–Tafolla v. State, 93 So.3d 364, 366–67 (Fla. 4th DCA 2012).

The state must present evidence of the corpus delicti of a crime, namely the legal elements necessary to show a crime was committed, before the defendant's confession to that crime may be admitted. State v. Allen, 335 So.2d 823, 825 (Fla.1976) (“A person's confession to a crime is not sufficient evidence of a criminal act where no independent direct or circumstantial evidence exists to substantiate the occurrence of a crime.”).

This court addressed the doctrine of corpus delicti in Snell v. State, 939 So.2d 1175 (Fla. 4th DCA 2006) :

“Ordinarily, proof of the corpus delicti of the crime charged is required before a confession or admission against interest may be received in

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