Rosson v. State

• Decision Date: 17 September 1975
• Docket Number: Nos. 74--799,74--800,s. 74--799
• Citation: 319 So.2d 64
• Parties: Jessie ROSSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 64

319 So.2d 64

Jessie ROSSON, Appellant, v. STATE of Florida, Appellee.

Nos. 74--799, 74--800.

District Court of Appeal of Florida, Second District.

Sept. 17, 1975.

James A. Gardner, Public Defender, Sarasota, and Durand J. Adams, Asst. Public Defender, Bradenton, for appellant.

Robert L. Shevin, Atty. Gen., Tallahasse, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

GRIMES, Judge.

Appellant was charged by two informations with breaking and entering an automobile with intent to commit petit larceny. She was convicted on the theory that she aided and abetted Charles Johnson in the commission of the crimes.

At about 12:45 a.m. on November 2, 1973, Patrolman Davis was advised by a passing motorist of a break-in of a van which was in progress in the parking lot of the Omega Bar in Largo. Davis arrived on the scene in time to see Johnson leave the van and leap into a red Buick parked beside the van. The Buick sped away with the officer in pursuit. Near a wooded area Johnson stopped the car and fled on foot. He was captured a short time later by another officer. Appellant remained seated on the passenger side of the car and made no attempt to flee. She was arrested and read her rights. In response to the officer's questions, she said that Johnson was a hitchhiker she picked up. Upon being questioned further she admitted she did not usually allow hitchhikers to drive but had on this occasion. Appellant told the officer that Johnson had told her the van proken into was his. While appellant and Johnson were being booked at the county jail, appellant supplied Johnson's address when he was unable to remember it.

The police found various stolen items in the car in which appellant was riding. A spotlight, a paint chart, a wallet badge and a pair of sunglasses were on the floor of the front seat on the passenger side. Two radios were on the back seat. The paint chart and one radio had been stolen from the van. The other items were stolen from a Chevrolet automobile which was parked next to the van.

At the close of the state's case, appellant made a motion for directed verdict which was denied. Neither appellant nor Johnson testified. The jury found appellant guilty of both charges.

Appellant correctly argues that since the evidence of her participation was circumstantial, the proof must not only be consistent with guilt but inconsistent with any other reasonable hypothesis. Williams v. State, Fla.App.4th, 1968, 206 So.2d 446. A conviction of aiding and abetting a crime requires proof of intent to participate in the conduct of the principal. E.g., Owens v. State, Fla.App.2d, 1974, 289 So.2d 472. The proof of appellant's intent to participate in the burglaries was circumstantial. Nevertheless, we believe the evidence was sufficient to uphold the convictions.

There was direct evidence that appellant had permitted Johnson to drive either her car or one under her control. Appellant's act of supplying Johnson's address to the police makes it clear that he was more than a hitchhiker. The car was parked next to the van when Johnson was observed to be bending over into the van. When Johnson ran back to the car, appellant was seen to be sitting on the passenger's side. Johnson then jumped into the car and drove it away at a high speed and was only brought to a stop by reason of police pursuit. The stolen items were found in the car. Some of the stolen items were bulky and could hardly have been unnoticed. The spotlight from the Chevrolet was on the floorboard on appellant's side of the car. Appellant's explanation that Johnson had told her the van belonged to him would not explain why articles were taken from the Chevrolet. While Johnson was not actually seen removing any of the articles in appellant's presence, it is clear that the van had just been burglarized because its owner said that he hadn't even had a chance to have a drink when the police came in the bar and asked the customers to check their vehicles to see if anything had been taken. The circumstantial evidence was strong enough to preclude a reasonable hypothesis of innocence.

The cases of Douglas v. State, Fla.App.3rd, 1968, 214 So.2d 653, and Lockett v. State, Fla.App.4th, 1972, 262 So.2d 253, cited by appellant are close, but distinguishable on the facts. In each of these cases the crimes consisted of the taking of articles from Inside a house while the defendant remained outside in an automobile. In both cases even though the proof was consistent with guilt it was not inconsistent with any other reasonable hypothesis. In the case Sub judice, the crimes involved the taking of articles from Two cars which were parked in a line next to the automobile in which the appellant was sitting.

Affirmed.

BOARDMAN, J., concurs.

HOBSON, A.C.J., dissents with opinion.

HOBSON, Acting Chief Judge (dissenting).

I cannot agree with the majority that the cases of Douglas v. State and Lockett v. State, supra, are distinguishable on the facts from the facts of this case as...