N.G.S. v. State

• Decision Date: 17 May 2019
• Docket Number: Case No. 2D17-4650
• Citation: 272 So.3d 830
• Parties: N.G.S., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

272 So.3d 830

N.G.S., Appellant,

v.STATE of Florida, Appellee.

Case No. 2D17-4650

District Court of Appeal of Florida, Second District.

Opinion filed May 17, 2019

Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

SALARIO, Judge.

N.G.S. appeals from a juvenile disposition order finding that he committed the delinquent acts of being a delinquent in possession of a firearm and being a delinquent carrying a concealed weapon. The order withheld adjudication and required N.G.S. to serve fifteen days in a juvenile detention center and twelve months of probation. He argues that the trial court erred in admitting his confession that the gun belonged to him without independent evidence of the corpus delicti of either delinquent act and that the court's finding of delinquency and withheld adjudication on both counts violated double jeopardy. We find the corpus delicti issue dispositive and reverse.

I.

On June 16, 2017, around 10:00 p.m., Clearwater Police Detective Harry Dodson was in his car behind N.G.S.'s residence when he saw N.G.S. sitting in a car nearby with three other young men. Detective Dodson knew N.G.S. was on probation and had an 8:00 p.m. curfew. He approached the car. N.G.S., who was sitting in one of the back seats, opened the door and told the detective: "I'm sorry. I'm sorry. I'm sorry." The smell of marijuana smoke emanated from the car. Detective Dodson and another detective began getting everyone out. As Detective Dodson was about to take N.G.S. from the back seat, he noticed "just the edge" of a pistol grip—what he also described as "just the very back of the backstrap" of a gun—sticking out underneath the seat in front of N.G.S. Detective Dodson reached down and removed what turned out to be a Smith & Wesson 9 mm handgun from under the seat in front of N.G.S.

Detective Dodson removed N.G.S. from the car and read him the standard Miranda ¹ warnings. N.G.S. said he understood. N.G.S. then confessed that he got the gun in St. Petersburg and brought it into the car with him that night. The State later filed a delinquency petition alleging that N.G.S. committed two delinquent acts: (1) delinquent in possession of a firearm, see § 790.23(1)(b), Fla. Stat. (2016), and (2) delinquent carrying a concealed weapon, see id.

At the adjudicatory hearing, the State asked Detective Dodson to testify about N.G.S.'s admission that the gun was his. N.G.S. objected, arguing that because the State had failed to prove the corpus delicti of either delinquent act, the confession was not admissible. The nub of N.G.S.'s argument was that the State was required but failed to prove, independent of N.G.S.'s admission, either (1) that all of the young men in the car had been adjudicated delinquent of felony offenses and were under the age of twenty-four, such that no matter who possessed or carried the gun, the delinquent acts had been committed or (2) that N.G.S. himself possessed and carried the firearm. See § 790.23(1)(b). The court overruled the objection and admitted N.G.S.'s statements into evidence. Detective Dodson later testified that the other young men in the vehicle were ages fourteen, seventeen, and eighteen. There was no evidence, however, that any of them had ever been found to have committed a felony delinquent act.

N.G.S. moved for a judgment of dismissal again raising the corpus-delicti issue and arguing, in part, that without his confession the evidence was insufficient to support a finding of delinquency for either offense. The trial court denied that motion and entered a disposition order finding N.G.S. delinquent and withholding adjudication on both counts. This timely appeal follows.

II.

N.G.S. argues that the trial court erred by allowing his admission that the gun was his into evidence in the absence of sufficient evidence proving the corpus delicti of either delinquent act with which he is charged. Our review is for abuse of discretion. See Tanzi v. State, 964 So.2d 106, 116 (Fla. 2007) (reviewing ruling on corpus delicti determination for abuse of discretion); J.B. v. State, 166 So.3d 813, 816 (Fla. 4th DCA 2014) ("The trial court's admission of a confession over a corpus delicti objection is reviewed for an abuse of discretion.").

A.

Corpus delicti is an old common law rule still followed in Florida that, simply stated, holds that a defendant's confession is not admissible to prove his or her guilt unless the State also introduces direct or circumstantial evidence independent of the confession to prove the corpus delicti or, in English, the body of the crime. Shelden v. State, 38 So.3d 214, 216 (Fla. 2d DCA 2010) ; see also J.B. v. State, 705 So.2d 1376, 1378 (Fla. 1998) (rejecting argument that the rule should be abolished in Florida). The gist of the rule is that before it can have the defendant's confession admitted, the State must establish "(1) that a crime of the type charged was committed; and (2) that the crime was committed through the criminal agency of another." Franqui v. State, 699 So.2d 1312, 1317 (Fla. 1997) (citing State v. Allen, 335 So.2d 823, 825 (Fla. 1976) ). The stated reason for the rule is that no one should be convicted when a confession is all there is to prove that a crime actually took place. See Shelden, 38 So.3d at 216 ("[T]he State is [obligated] to demonstrate, by evidence other than the defendant's admission, that the crime was in fact committed."); see also Allen, 335 So.2d at 825 (requiring proof "that a crime has been committed" to ensure that "no person be convicted out of derangement, mistake or official fabrication").

The corpus delicti rule does not require that the State prove the identity of the person who committed the crime, except in those uncommon circumstances where proof of identity is necessary to show that a crime was committed at all. See A.P. v. State, 250 So.3d 799, 802 (Fla. 2d DCA 2018) (describing circumstances in which "the identity of the guilty party and the proof that a crime occurred" are so intertwined that proof of corpus delicti and guilty agency are the same (quoting Spanish v. State, 45 So.2d 753, 754 (Fla. 1950) )); State v. Walton, 42 So.3d 902, 906-07 (Fla. 2d DCA 2010) (stating that the defendant's identity as the driver may become a part of the corpus delicti where the evidence does not establish a crime without it). Nor does it require that the body of the crime be proved beyond a reasonable doubt. Shelden, 38 So.3d at 216. Rather, it requires that the State produce "substantial evidence," which need not be "uncontradicted or overwhelming," to prove that a crime has in fact happened. Allen, 335 So.2d at 825 (quoting Tucker v. State, 64 Fla. 518, 59 So. 941, 941 (1912) ).

So what is the corpus delicti in this case? Both offenses of which N.G.S. was found delinquent were based on section 790.23(1)(b), which provides in relevant part as follows:

(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:

....

(b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age.

As to the count for delinquent carrying a concealed weapon, the statute makes it unlawful for a delinquent to "carry a concealed weapon, including a tear gas gun or chemical weapon or device." Id. For the purposes of chapter 790, "concealed weapon" is defined as "any dirk, metallic knuckles, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person." § 790.001(3)(a). We have previously held that a firearm does not meet the definition of a "concealed weapon" under chapter 790. See Baldwin v. State, 857 So.2d 249, 251 (Fla. 2d DCA 2003). But see Wiggins v. State, 253 So.3d 1196 (Fla. 1st DCA 2018).

The corpus delicti for this offense, then, would at least include some evidence, separate from N.G.S.'s admission, that someone covered by the statute (i.e., a delinquent with the requisite prior delinquency finding) carried something that met the definition of concealed weapon. The State's evidence in this case, however, showed that the only potentially-unlawful item Detective Dodson recovered during his interaction with N.G.S. was a gun. Because a gun cannot be a "concealed weapon" under chapter 790, it follows that the State's evidence does not establish the corpus delicti for delinquent carrying a concealed weapon.

We turn now to the possession charge. As concerns a delinquent's unlawful possession of a firearm, our court has held that the body of the crime is "that a firearm was possessed by an individual who is prohibited by the statute from possessing it"—as relevant here, an individual under twenty-four who has been found to have committed a delinquent act that would be a felony if committed by an adult. See A.P., 250 So.3d at 801 ; see also J.J.J. v. State, 235 So.3d 1014, 1016-17 (Fla. 2d DCA 2017) (holding that the State failed to establish the corpus delicti of minor in possession of a firearm where the only evidence that a minor possessed a firearm was inadmissible).

In determining whether the State actually proved the corpus delicti of the possession count, this much is not in dispute:

there was no evidence that all of the occupants of the car in which the gun was found had previously been found to have committed delinquent acts that would have been felonies had they been committed by adults. If these were the facts and the State had sufficiently proved them, this would be a no-brainer affirmance. It is entirely logical to infer from the facts that someone in the...