Parker v. State, No. 4D99-1204.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: GROSS, J.
• Citation: 795 So.2d 1096
• Docket Number: No. 4D99-1204.
• Decision Date: 03 October 2001
• Parties: Kevin PARKER, Appellant, v. STATE of Florida, Appellee.

795 So.2d 1096

Kevin PARKER, Appellant,
v.
STATE of Florida, Appellee

No. 4D99-1204.

District Court of Appeal of Florida, Fourth District.

October 3, 2001.

795 So.2d 1097

Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant

Robert A. Butterworth, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

GROSS, J.

We grant the state's motion for rehearing, withdraw our previous opinion, and issue the following.

The primary issue in this case is whether the trial court erred in failing to grant Kevin Parker's motions for judgment of acquittal, such that he is entitled to be discharged for eleven felony offenses.¹ We find that the evidence was sufficient for the case to be submitted to the jury.

In moving for a judgment of acquittal, a defendant admits not only the facts in evidence, but admits every conclusion favorable to the state that a jury might fairly and reasonably infer from the evidence. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974); Green v. State, 706 So.2d

795 So.2d 1098

884, 885 (Fla. 4th DCA 1998). A trial court should not grant a motion for judgment of acquittal unless, when viewed in the light most favorable to the state, the evidence does not establish a prima facie case of the defendant's guilt. See Green, 706 So.2d at 885

In the light most favorable to the state, the evidence at trial demonstrated that appellant and Robert Rimmer were friends before the May 2, 1998 robbery. At the end of April or the beginning of May, appellant and Rimmer spoke to each other in a parking lot.

The day of the robbery, appellant drove up to the Audio Logic Store at the same time as Rimmer. Appellant parked in front of the store and entered it through the front door. Rimmer arrived in a different car and parked toward the back of the store.

In the lobby of the store, appellant encountered a customer, Kimberly Davis Burke, and her child. After talking briefly to the child, appellant left the lobby through the back door. The door led to Audio Logic's installation area where the robbery occurred.

A minute or two after appellant left through the back door, Rimmer entered the lobby through the same door. He told Davis Burke that her boyfriend wanted to talk to her in the installation area. When Davis Burke entered the installation area, she saw two customers and two employees laying on the floor with their hands duct taped behind their backs. She sat down on the floor and watched Rimmer and another male move boxes out of the store's inventory room into Rimmer's Ford Probe. The man helping Rimmer was not appellant. Davis Burke did not see appellant at any time while in the installation area. After Rimmer and the unidentified man finished loading Rimmer's car with boxes, Rimmer shot and killed the two store employees.

On May 7, 1998, Rimmer rented a storage unit and, along with an unidentified male, deposited the stolen merchandise there. The police entered the storage unit on May 14, 1998 and recovered the merchandise. Twenty-two fingerprints lifted from six of the boxes were identified as appellant's. The co-owner of Audio Logic testified that the boxes had been removed from locked display cases and from areas in the store not accessible to customers, such as the back inventory room. Appellant had never worked for an auto alarm or audio electronics company or for any of the companies manufacturing the kinds of items taken from Audio Logic, so this potential avenue of contact with the boxes was foreclosed by the evidence.

After Rimmer was arrested on May 10, 1998, he called appellant's girlfriend, with whom appellant stayed three or four times a week, and left the message, "Tell the people I'm all right, I'm all right."

The police arrested appellant in June, 1998. During his interrogation, appellant denied he had ever been in the inventory room or office area. Contrary to the testimony of Davis Burke, he claimed he left the store not through the back door in the lobby, but through the front door. He asserted that he then walked around back to the installation area, saw "something going down," and immediately left.

When told that the police had lifted his fingerprints from the retrieved boxes, appellant stated the prints were not his and that someone must have put them there. At trial, appellant did not testify or offer any witnesses. His statement to the police was his only version of the facts in evidence.

To convict appellant as an aider and abettor, the state had to show that he (1) assisted the actual perpetrator by doing something that caused, encouraged, assisted, or incited the perpetrator to actually

795 So.2d 1099

commit the crime; and (2) intended to participate in the crime. See Wyatt v. State, 755 So.2d 671, 673 (Fla. 4th DCA 1999); Swanson v. State, 713 So.2d 1097, 1099-1100 (Fla. 4th DCA 1998). These elements of aiding and abetting may be proven by a combination of surrounding circumstances from which a jury can reasonably infer a defendant's guilt. See A.B.G. v. State, 586 So.2d 445, 447 (Fla. 1st DCA 1991)

The evidence was sufficient to justify the denial of the motion for judgment of acquittal. See Benedith v. State, 717 So.2d 472, 475 (Fla.1998). See also Leonard v. State, 731 So.2d 712, 718 (Fla. 2d DCA) (holding the trial court properly denied defendant's motion for judgment of acquittal, although defendant offered evidence as to how his fingerprints were placed on a candy box found at the scene of the crime) rev. denied, 735 So.2d 1286 (Fla.1999). This case is distinguishable from cases where a conviction is based on a fingerprint alone. For example, unlike Shores v. State, 756 So.2d 114, 116 (Fla. 4th DCA 2000), fingerprint evidence was not the only evidence linking appellant to the crime, nor were appellant's fingerprints found on objects "accessible to the public." Id.

Nor is this case controlled by those cases where the only evidence of guilt is a defendant's presence at the scene of the crime "at or near the time the crime occurred." Johnson v. State, 249 So.2d 452, 454 (Fla. 4th DCA 1971). This was not a case without fingerprint evidence, where the defendant could not be placed at the crime scene. Cf. Hall v. State, 500 So.2d 661, 662-63 (Fla. 1st DCA 1986) (reversing the trial court's denial of defendant's motion for judgment of acquittal where defendant could not be placed at the scene of the crime and was convicted solely on evidence that she lied about her whereabouts during the crime and had been seen with another principal in the crime prior to its commission).

Appellant contends in his initial brief that the reasonable hypothesis of his innocence was "that his fingerprints were placed on the property stolen from Audio Logic at a time other than during the crimes committed ... by co-defendant Robert Rimmer." However, the state introduced competent evidence at trial inconsistent with that theory. Appellant's own statement to the police refuted the hypothesis of innocence he offers on appeal; a detective testified to appellant's flat denial that the fingerprints were his and to his claim that someone else had put his prints on the boxes. The jury was entitled to reject such an unreasonable explanation of the presence of appellant's fingerprints.

In Lewis v. State, 777 So.2d 456, 458 (Fla. 4th DCA 2001), we reiterated the standard set forth in State v. Law, 559 So.2d 187 (Fla.1989), that the state is not required to "rebut conclusively every possible variation" of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events. Once that threshold burden is met, it is the jury's duty to determine whether the evidence is sufficient to support a conviction.

This case contrasts with those circumstantial evidence cases where the evidence at trial supported a defendant's reasonable hypothesis of innocence consistent with the state's evidence. Cf. Jaramillo v. State, 417 So.2d 257, 257 (Fla.1982) (finding that defendant's reasonable explanation as to how his fingerprints came to be on items in the victims' home was not inconsistent with the state's evidence); West v. State, 585 So.2d 439, 441 (Fla. 4th DCA 1991) (finding that the state's own evidence negated defendant's knowledge that a crime was about to be committed

795 So.2d 1100

rendering the state's circumstantial evidence insufficient to support a "guilty verdict for one not directly active in the crime"); Gale v. State, 726 So.2d 328, 330 (Fla. 2d DCA 1999) (finding that the defendant's reasonable theory of the events was not inconsistent with the state's evidence therefore the state did not meet its burden). In applying the law of circumstantial evidence under Law, a court should not concoct fictional hypotheses of innocence which contradict the defendant's implausible version of the facts in evidence. 559 So.2d at 188-89.

The state's case presented numerous factors pointing to appellant's guilt: his association with Rimmer, his arrival at the crime scene at the same time as Rimmer, the conflict between his testimony and that of Davis Burke about how he left the store, twenty-two of his fingerprints on six of the boxes of stolen property, and his lame explanation of his fingerprints on the boxes of stolen goods. There was more than enough smoke to let the jury decide if appellant was responsible for the fire.

Another issue on appeal...