R.N. v. State

• Decision Date: 07 November 2018
• Docket Number: No. 4D17-3554,4D17-3554
• Parties: R.N., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

257 So.3d 507

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

No. 4D17-3554

District Court of Appeal of Florida, Fourth District.

[November 7, 2018]

Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.

Kuntz, J.

A juvenile appeals the circuit court's order adjudicating him delinquent for intentional or knowing malicious harassment or interference with a police dog. The State charged the juvenile with violating section 843.19(4), Florida Statutes (2017), which provides that "[a]ny person who intentionally or knowingly maliciously harasses, teases, interferes with, or attempts to interfere with a police dog ... while the animal is in the performance of its duties commits" a second-degree misdemeanor. The issue presented is one of statutory interpretation. Is the statute directed to a person who maliciously harasses or teases a police dog? Or is it directed to a person who maliciously harasses or maliciously teases a police dog? Because we conclude the latter construction is the correct one, we vacate the adjudication of delinquency and remand for dismissal of the charge.

Background

Two officers and a K-9, Kona, responded to a vehicle accident involving the juvenile. Kona's handler instructed Kona to conduct an exterior narcotics search of the vehicle. Kona conducted the exterior search and alerted the handler to narcotic odor. Based

257 So.3d 509

on Kona's alert, the two officers conducted an interior search of the vehicle.

When the officers began the interior search of the vehicle, the juvenile "interrupted" them, "became loud and belligerent," and told them they "couldn't do that." One officer testified that the juvenile was "talking loud" and that he projected his voice in the direction of the dog. The other officer testified that the juvenile was "loud," "belligerent," and "disruptive." Neither officer could identify the exact words the juvenile used to distract Kona. And at no point was the juvenile closer than five to ten feet from Kona.

The officers warned the juvenile two times to stop distracting Kona, and they ultimately arrested the juvenile. Both officers testified they conducted the search with no further interruptions or distractions after they arrested the juvenile. The entire search lasted around five minutes.

The State charged the juvenile with violating section 843.19(4), Florida Statutes (2017). After the State rested, the juvenile moved for a judgment of dismissal:

Weighing the evidence most favorable to the State, the prosecutor failed to show that [Appellant] either maliciously - - maliciously harassed, teased, interfered or attempted to interfere with K-9 Kona, so we're asking the Court to enter an Order dismissing the petition for insufficiency of evidence.

The court denied the motion and later adjudicated the juvenile delinquent for violating section 843.19(4), Florida Statutes. The juvenile appeals.

Analysis

The juvenile argues the court erred in denying his motion for judgment of dismissal. We review the court's denial of a motion for judgment of dismissal in a juvenile case de novo. D.J.D. v. State , 143 So.3d 1115, 1118 (Fla. 4th DCA 2014) (citing A.R. v. State , 127 So.3d 650, 653 (Fla. 4th DCA 2013) ). And "[t]he construction and application of a statute is an issue of law subject to de novo review." Wiley v. State , 125 So.3d 235, 237 (Fla. 4th DCA 2013) (citing Boca Airport, Inc. v. Fla. Dep't of Revenue, 56 So.3d 140, 142 (Fla. 4th DCA 2011) ).

The juvenile asserts the State failed to establish that he acted "in a knowingly malicious manner towards the police dog." Section 843.19(4), Florida Statutes (2017), states:

Any person who intentionally or knowingly maliciously harasses, teases, interferes with, or attempts to interfere with a police dog, fire dog, SAR dog, or police horse while the animal is in the performance of its duties commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

§ 843.19(4), Fla. Stat. (emphasis added).

The police dog, Kona, was undeniably in the performance of its duties at the times in question. So the issue is limited to whether the juvenile had the requisite intent under the statute. That analysis revolves around the word "maliciously." First, what does it mean? Second, where does it apply? Finally, we apply these answers to the case before us.

i. The Definition of Malice in Section 843.19(4), Florida Statutes

"Maliciously" is not defined in the statute, so it "must be understood as a word of common usage having its plain and ordinary sense." See Seese v. State , 955 So.2d 1145, 1149 (Fla. 4th DCA 2007) (citing State v. Hagan , 387 So.2d 943, 945 (Fla. 1980) ; State v. Mitro , 700 So.2d 643, 645 (Fla. 1997) ).

In law, malice can be defined in two ways. Id. (citing

257 So.3d 510

Reed v. State , 837 So.2d 366, 368 (Fla. 2002) ). The first is legal malice, which "means ‘wrongfully, intentionally, without legal justification or excuse[.]’ " Id. (footnote omitted) (quoting Reed , 837 So.2d at 368 ). The second is actual malice, which "means ‘ill will, hatred, spite, an evil intent.’ " Id. (footnote omitted) (quoting Reed , 837 So.2d at 368 ).

We analyzed the proper application of malice in Seese . 955 So.2d at 1149-50. Seese involved the use of "maliciously" in section 784.048(4), Florida Statutes (2004). That statute provides: "Any person who, ... after any ... court-imposed prohibition of conduct toward the subject person ..., knowingly, willfully, maliciously, and repeatedly ... harasses ... another person commits the offense of aggravated stalking ...." § 784.048(4), Fla. Stat.

We explained that we take the text of the statute "as a whole." Seese , 955 So.2d at 1149. And "considering its context and the discernible purposes of the legislature, we conclude[d] that the plain meaning of the statutory term maliciou...