R.R.W. v. State, 2D04-5367.

• Decision Date: 30 September 2005
• Docket Number: No. 2D04-5367.,2D04-5367.
• Citation: 915 So.2d 633
• Parties: R.R.W., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 633

915 So.2d 633

R.R.W., Appellant, v. STATE of Florida, Appellee.

No. 2D04-5367.

District Court of Appeal of Florida, Second District.

September 30, 2005.

James Marion Moorman, Public Defender, and A. Anne Owens, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

R.R.W. appeals from an order placing him on probation but withholding adjudication for delinquent acts of criminal mischief and trespass. We affirm the disposition as to trespass but reverse as to criminal mischief because the circumstantial evidence against R.R.W. was legally insufficient to sustain the charge.

In an amended petition for delinquency, the State charged R.R.W. with a violation of section 806.13, Florida Statutes (2003), for causing damage greater than $200 to a vehicle belonging to A.C.E. Distributors. Robert Johnson, the owner of A.C.E., testified at trial that two "classic" Volkswagens, one yellow and one blue and both more than twenty-five years old, were stored along with some other automobiles in a double-enclosed compound surrounded by a six-foot fence topped with barbed wire. Robert Johnson first noticed the damage to the two Volkswagens on June 4, 2004. In particular, the roof and hood of both cars, as well as the headlights of the yellow Volkswagen, had been damaged. Robert Johnson estimated the cost to repair the blue Volkswagen's roof at $300. The vehicle, which had been purchased in 1994 at a cost of $1000, had been stored in the compound since the day of acquisition. Unfortunately, he did not know who had caused the damage nor when it had occurred. However, he did complain that his property had been sustaining ongoing damage during the preceding three years, most of which he attributed to his neighbors, the Summerall family. He did not know R.R.W.

Paul Johnson, a longtime neighbor who is not related to Robert Johnson and whose backyard parallels A.C.E.'s, also testified in court. The Summeralls live between the properties owned by the two Johnsons. On June 4, 2004, Paul Johnson told a deputy called to the scene that he had seen one of the Summerall boys inside the A.C.E. backyard. Although he had not seen R.R.W. on A.C.E.'s property on that date, he told the deputy that he had observed both boys playing inside the fenced property. At trial, he clarified that this incident had occurred earlier that year; he was "almost sure it was in January." At that time he saw both boys playing on the two cars, and he thought that R.R.W. was on top of the blue Volkswagen. However, he was not close enough to the Volkswagens to observe whether they had been damaged.

A deputy sheriff who had responded to the complaint on June 4, 2004, testified that she observed that the roof of one Volkswagen was dented but she could not recall the color of the car. The dent was consistent with the kind of damage one might expect if someone had stood on the vehicle's roof. She further testified that her report did not reflect that the complaining witness had given her a specific time when R.R.W. had allegedly damaged the car.

Following the denial of his motion for judgment of dismissal on the ground that the State had failed to prove a prima facie case, R.R.W. testified that he had never been on the A.C.E. property, had never gone through the fence, and had never stood on top of the Volkswagen. The trial court found that R.R.W. had committed both offenses, withheld adjudication of guilt, and placed R.R.W. on consecutive one-year terms of probation.

The court erred because the evidence presented failed to establish that R.R.W. caused the damage to the blue Volkswagen. To commit the crime of criminal mischief a person must willfully and maliciously...