Rivers v. State, 2D10–3801.
| Decision Date | 31 October 2013 |
| Docket Number | No. 2D10–3801.,2D10–3801. |
| Citation | 124 So.3d 247 |
| Parties | Patrick RIVERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Howard L. Dimmig, II, Public Defender, and Katharine B. Heyward, Special Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Gina M. Girardot, Assistant Attorney General, Tampa, for Appellee.
Patrick Rivers was convicted and sentenced for multiple crimes arising from a string of car burglaries and a subsequent attempt to flee from police. He does not challenge his conviction or time-served sentence for obstructing or opposing an officer without violence, and we affirm this conviction without further comment. In his appeal of the remaining convictions we affirm in part, reverse in part, and remand for a new trial on one charge.
In addition to obstructing an officer without violence,1 Rivers was charged with and convicted of three counts of burglary of an unoccupied conveyance,2 one count of attempted burglary of an unoccupied conveyance,3 two counts of grand theft,4 one count of grand theft of a motor vehicle,5 and fleeing to elude at high speed. 6 Rivers argues that the trial court erred in denying his motion for judgments of acquittal (JOA) on the seven burglary and theft charges. He also challenges jury instructions in regard to those charges and to the fleeing-to-elude charge.
Testimony by the State's witnesses provided a timeline of the incidents giving rise to Rivers' charges. At 7:00 or 7:15 a.m. on May 4, 2009, a Ford Thunderbird pulled up to a home. A man exited the car and tried to break into a truck with a crowbar, setting off the truck's alarm. A neighbor observed these events through her window. She yelled for her husband, who ran outside, and she called 911. She saw the man climb back into the Thunderbird, which then sped away. The truck's owner also heard the alarm and corroborated the time of the attempted break-in. He did not see anyone try to enter the truck, but later inspection showed that the truck's door had been popped and that the lock had been pushed in.
The neighbor who saw the man with the crowbar could not identify him or anyone else in the Thunderbird, which had tinted windows. She did not say whether the man she saw was the driver or a passenger. Her husband also did not say who was driving or how many people were riding in the car. But he noted its license plate number before it left. When the police arrived ten or fifteen minutes later, he gave them the tag number.
A deputy sheriff was dispatched to the scene at 7:28 a.m. She testified that law enforcement traced the tag number to the Thunderbird's owner, who was unaware that her car had been stolen. She had last seen the car in a parking lot at 3:00 p.m. on the day before, and she had not given anyone permission to take it. Shortly after the deputy's arrival at the scene, she issued a be-on-the-lookout report for the stolen Thunderbird.
Between 8:00 and 8:10 a.m., two women had their purses stolen from their cars, which were parked at a school. Both women had escorted their children to the school and returned to find their car windows broken and their purses missing.
At approximately 8:30 a.m., a Florida Highway Patrol trooper received a “LoJack hit,” which alerted him that a stolen vehicle was within three miles of his location. Within the next minute, the trooper spied the stolen Thunderbird when it pulled out in front of him. The trooper activated his lights and siren, and he pursued the car when it failed to stop. For the next fifteen to thirty minutes, the trooper followed the stolen car. The Thunderbird went onto and off of the interstate, moving at high speed; it jumped concrete medians on the city streets; and at times, it went the wrong way against the direction of traffic. The stolen Thunderbird rear-ended one car as it exited the interstate, but it drove away from this accident. It eventually hit a second vehicle, and this crash ended the chase. The trooper saw four men jump out of the Thunderbird and run off. He noted the clothes worn by the driver, and he gave chase on foot. With the assistance of a K–9 dog, Rivers was found hiding under a tarp in a backyard shed. Another occupant of the car, Rufus McGhee, was found hiding under a mobile home. Two more young men were later identified and charged in these crimes.
After Rivers was in custody, the trooper identified him as the driver of the stolen car based on his clothing. He later identified Rivers in court as the driver. The two stolen purses were found on the rear floorboard of the Thunderbird. Of the fingerprints lifted from the stolen car, only one was identified—McGhee's fingerprint was on the rearview mirror.
After the State rested, defense counsel argued his JOA motion, raising the issues we discuss below. The trial court denied the motion. The defense then presented testimony by McGhee and the officer who found him. Although we recount this testimony, we note that it has no bearing on the question whether the trial court properly denied Rivers' JOA motion. “The State may not rely upon evidence presented during [appellant's] subsequent defense to supply essential missing links in the State's prima facie case to support the denial of the motion for judgment of acquittal.” Wagner v. State, 421 So.2d 826, 827 (Fla. 1st DCA 1982).
When McGhee testified on behalf of Rivers, he had already been convicted of offenses arising from this episode. McGhee's testimony contradicted the timeline established by the State's witnesses. According to McGhee, he stole the Thunderbird by himself at around 7:00 or 7:20 a.m. He said that he alone broke into the cars at the school and stole the women's purses, at around 7:50 or 8:00 that morning.He then picked up his younger brother, his friend Rivers, and another friend at about 8:15 a.m. McGhee testified that he told the others that he wanted to stop by a friend's house to pick up something. When they stopped, McGhee said he got out of the car with a screwdriver and tried to break into the truck. He fled when the alarm went off. McGhee claimed that he was driving the whole time and that law enforcement began pursuit within three to five minutes after the unsuccessful burglary of the truck. McGhee admitted in cross-examination that he had not previously said that he was the driver.
Defense counsel renewed the JOA motion, which the trial court again denied. The court then instructed the jury on the charged offenses and, over objection, on the law of principals and on the inferences arising from possession of recently stolen property and from proof of stealthy entry. The jury convicted Rivers of all counts as charged: attempted burglary of the truck; two burglaries and two grand thefts related to the purses stolen from the women's cars; a burglary and grand theft related to the stolen Thunderbird; fleeing to elude at high speed; and obstruction without violence.
We review the denial of the JOA motion de novo, taking the evidence and reasonable inferences therefrom in the light most favorable to the State. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). We note that the trooper's eyewitness testimony identifying Rivers as the driver of the car was direct evidence only of Rivers' guilt of fleeing to elude and obstruction; on the burglary and grand theft charges, the evidence of Rivers' guilt was entirely circumstantial. See Singleton v. State, 105 So.3d 542, 544 (Fla. 2d DCA 2012) . For this reason, on those charges our standard of review requires that we determine whether the evidence was sufficient to exclude Rivers' reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187, 188–89 (Fla.1989). As to this issue, the State's burden was not “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.” Id. at 189 (footnote and internal quotation marks omitted).
On appeal, the State concedes that the evidence was insufficient to support Rivers' conviction for attempted burglary, even as a principal. As the State notes, quoting Staten v. State, 519 So.2d 622, 624 (Fla.1988), “[i]n order to be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.” We agree that the State failed to introduce sufficient evidence of guilt on this charge, and we reverse the conviction for attempted burglary of the truck (count 5).
The State also concedes that it failed to introduce evidence of the stolen purses' value sufficient to support convictions for grand theft; it suggests that the convictions should be reduced to petit theft. But we conclude that the evidence was insufficient to prove Rivers' guilt for any theft or burglary involving the purses. There was no direct evidence of Rivers' participation in these crimes, and because the circumstantial evidence failed to show that Rivers was in possession of the stolen property, the State was not entitled to inferences of guilt arising from possession of recently stolen property.
When the four men fled the Thunderbird after the chase, they left two stolen purses on the rear floorboard. The State's evidence established that the purses were stolen about a half hour before the...
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