Sanchez v. State

• Decision Date: 03 May 2019
• Docket Number: Case No. 2D17-258
• Citation: 270 So.3d 515
• Parties: Gerardo SANCHEZ, Sr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

270 So.3d 515

Gerardo SANCHEZ, Sr., Appellant,

v.STATE of Florida, Appellee.

Case No. 2D17-258

District Court of Appeal of Florida, Second District.

Opinion filed May 3, 2019

Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Gerardo Sanchez, Sr., appeals his convictions and sentences for one count of burglary of a structure, one count of possession of burglary tools, one count of unlawful use of a two-way communications device, one count of attempted burglary, and one count of first-degree misdemeanor criminal mischief. Because the State's evidence was legally insufficient to sustain the convictions for unlawful use of a two-way communications device and first-degree misdemeanor criminal mischief, we reverse those convictions. We affirm the remaining convictions without further comment. And because the reversals necessitate resentencing, we remand for resentencing before a different judge.

Old Polk City Road Walgreens

At around 3:00 a.m. on January 14, 2015, a Polk County sheriff's deputy parked at a church next to a Walgreens drug store that faced Old Polk City Road in Lakeland. As he worked on reports in his patrol car, the deputy heard noises coming from the back of the store. Going to investigate, he peered through the trees that separated him from the store parking lot and saw two individuals using what appeared to be a yellow pole to attempt to pry open the back emergency exit door of the store. The deputy quietly radioed for additional units to respond to the area.

Almost immediately thereafter, the two individuals ran away from the door and stood next to a dumpster in the Walgreens parking lot. Moments later, a black Mustang drove into the parking lot and stopped, and the two individuals jumped in. The car then sped away onto Grady Mock Road and then turned onto Socrum Loop Road. The deputy radioed the other units with a description of the car and the direction it had gone, and then he approached the back of the store. There, he discovered pry marks with yellow paint around them on the emergency exit door. He also heard a buzzing sound that he thought came from an alarm system.

Before he could investigate further, the deputy was notified that a black Mustang with three men inside had been stopped about a mile away. When he arrived at the traffic stop, the deputy identified the car and its occupants, one of whom was Sanchez, as being the men he had seen behind the Walgreens. The men were arrested, and the Mustang in which they had been riding was searched incident to their arrests. During that search, officers located three yellow gloves, some tools, and clothing in the main part of the trunk and a set of hand-held walkie-talkies and additional power tools inside the compartment designed to hold the spare tire. Some time later, a deputy walking the route the Mustang had taken from the store found a single yellow glove and two yellow crowbars lying in the roadway. Upon questioning, the occupants of the car denied any involvement with any activities at the store.

While the police investigation was in progress, Walgreens' alarm company contacted the assistant store manager and asked her to respond to the store. The assistant manager arrived and met with police on the scene. They accompanied the assistant manager into the store, and she determined that a wire to the alarm sensor on the emergency exit door had been cut. The door was damaged, but the perpetrators had not gained entry into the store.

Later on January 14, the store manager reviewed surveillance video from the day before and determined that three men matching the descriptions of the men stopped in the Mustang had been in the store shortly before 7:00 p.m. on January 13. While the surveillance cameras did not record all areas of the store, the recordings did show two of the men entering a hallway that leads to the restrooms and the emergency exit door. A Polk County sheriff's detective also viewed the surveillance video, and he testified that the men seen in the video were the same individuals in the Mustang who were arrested after the burglary.

Based on this investigation, the State charged Sanchez with one count of burglary, one count of possession of burglary tools, and one count of unlawful use of a two-way communications device.

Ariana Street Walgreens

At 11:00 p.m. on January 13, 2015, the store manager of the Walgreens on Ariana Street in Lakeland had trouble setting the alarm system when she was closing the store. The system indicated that a sensor on the back emergency exit door was not connecting. The manager walked to the emergency exit doors, looked at the sensor, and did not see anything wrong. She walked outside to look at the back door itself and did not observe anything out of the ordinary. She then bypassed that sensor, set the rest of the alarm system, and closed the store.

At 4:30 a.m. the next morning, the manager received a call asking her to respond to the store. When she arrived, she discovered that the back emergency exit door had been damaged by what appeared to be pry marks surrounded by yellow paint. The investigating police officer later discovered that a wire to the alarm sensor on the back emergency exit door had been cut—damage the manager had not noticed the evening before.

Later that day, the manager reviewed surveillance video from the store security cameras, which showed three men entering the store shortly after 7:30 p.m. on January 13, walking generally toward the rear of the store, and then returning to exit through the front doors. Because the number of cameras in the store was limited, there was no surveillance footage showing exactly where the men went after they entered the store. But the manager testified that the video showed the men heading in the general direction of the restrooms, which are in the back of the store by the emergency exit door.

The manager turned the video footage over to the police detective who was investigating the incident. The police also collected both the alarm sensor and some paint chips from the emergency exit door. The manager testified that while the emergency exit door was damaged, the door had not been repaired because it was still usable. Nevertheless, upon questioning by the State about the cost to replace the door, the manager testified, "My guess would be around 1500 or 2000. It's a steel door, you know, very expensive door, very hard to get into.... So that would be my guess." The State offered no other evidence concerning the cost to replace and/or repair the damage to the door.

The Polk County sheriff's detective assigned to investigate the Old Polk City Road store case was also assigned to the Ariana Street store case, and he reviewed the surveillance footage from both stores. He testified that the men seen entering the Ariana Street store at approximately 7:30 p.m. on January 13 were the same men who were seen entering the Old Polk City Road store at approximately 7:00 p.m. on January 13 and who were arrested after the burglary at that store in the early morning hours of January 14.¹

Based on this investigation, the State charged Sanchez with one count of attempted burglary and one count of criminal mischief.

Defense Case

At trial, Sanchez testified that he was traveling with his son and another man from Orlando to Tampa in the early morning hours of January 14. He testified that they exited the highway to try to find food and got lost. He testified that he worked installing drywall and fiberglass and that the tools in the car were used for his work. He denied ever being in either the Ariana Street store or the Old Polk City Road store and denied attempting to break into either one.

At the close of the State's case, Sanchez moved for a judgment of acquittal as to the charges arising out of the Ariana Street store, specifically arguing as to the criminal mischief charge that the State had failed to offer competent evidence concerning the value of the damage to the emergency exit doors. As to the charges arising from the Old Polk City Road store, Sanchez argued that the State had failed to prove a burglary, had failed to prove that the tools found in the Mustang constituted burglary tools, and had failed to prove that the walkie-talkies found in the trunk were used in the commission of any offense. Despite these arguments, the trial court denied Sanchez's motions for judgment of acquittal, and the jury found Sanchez guilty as charged on all counts.

In this appeal, Sanchez does not challenge his convictions for burglary and possession of burglary tools arising from the events at the Old Polk City Road store. However, he has challenged the sufficiency of the evidence to support the remainder of the convictions. We reject his argument that the evidence was insufficient to sustain his conviction for attempted burglary of the Ariana Street store. See McDuffie v. State, 970 So.2d 312, 330 (Fla. 2007) ("The [S]tate 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 becomes the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt." (quoting Orme v. State, 677 So.2d 258, 262 (Fla. 1996) )). However, we reverse Sanchez's remaining two convictions and remand for resentencing.

I. Unlawful Use of a Two-Way Communications Device

First, Sanchez contends that the trial court erred by denying his motion for judgment of acquittal on the charge of unlawful use of a two-way communications device because the State presented no evidence that the walkie-talkies found in the Mustang's trunk were used in any way in the commission...