Shores v. State, 99-1149.

• Decision Date: 05 January 2000
• Docket Number: No. 99-1149.,99-1149.
• Citation: 756 So.2d 114
• Parties: Michael Louis SHORES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

756 So.2d 114

Michael Louis SHORES, Appellant, v. STATE of Florida, Appellee.

No. 99-1149.

District Court of Appeal of Florida, Fourth District.

January 5, 2000.

Richard L. Jorandby, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

KLEIN, J.

Appellant was convicted of burglary of a dwelling. The only evidence linking him to the burglary was one of his fingerprints on a box of ammunition in a drawer which had been ransacked by the burglar. We conclude that the trial court should have granted a judgment of acquittal.

The state's evidence reflected that a home had been burglarized and things taken from the living room and each of two bedrooms. In one of the bedrooms a drawer in a night stand had been left open, and the items contained in the drawer had been moved around by the burglar. A box of ammunition in the drawer, which the victim had purchased approximately two months earlier, contained a fingerprint of the appellant. There was no other evidence connecting appellant to the burglary. The victim was not sure, but thought he had purchased the ammunition at a Sports Authority. There was no evidence as to the freshness of the fingerprint, nor any testimony from a fingerprint expert.

In C.E. v. State, 665 So.2d 1097, 1098 (Fla. 4th DCA 1996), this court reversed a conviction based solely on fingerprint evidence found on a vehicle which had been burglarized. We began our opinion by stating:

Circumstantial evidence may support a conviction only if it is consistent with guilt and inconsistent with any reasonable hypothesis of innocence. State v. Law, 559 So.2d 187, 188 (Fla.1989). Where fingerprint evidence found at the scene is relied upon to establish identity, the evidence must be such that the print could have been made only when the crime was committed. Tirko v. State, 138 So.2d 388, 389 (Fla. 3d DCA 1962). Tirko was relied on by this court in Knight v. State, 294 So.2d 387, 389 (Fla. 4th DCA), cert. denied, 303 So.2d 29 (Fla.1974); see also Williams v. State, 247 So.2d 425, 426 (Fla.1971)

(fingerprint evidence showed only that defendant had been at crime scene, not when he was there). If the state fails to show that the fingerprints could only have been made at the time the crime was committed, the defendant is entitled to a judgment of acquittal.

In C.E., the vehicle was a police crime scene van which, when parked, was in a place accessible to the public. In addition, it was dispatched throughout the county on a daily basis. The defendant's fingerprints were only on the exterior of a window which had been broken in the burglary.

Defendant's hypothesis of innocence in C.E. was that he could have innocently leaned against the van on another occasion when the vehicle was out and about, and the state did not prove that his prints were made at the time the crime was committed. Relying on the cases cited in the quote, we concluded that the circumstantial evidence was not inconsistent with appellant's hypothesis of innocence and that the conviction had to be reversed. In the present case there was no testimony given as to how appellant's fingerprint got on the box of ammunition; however, his lawyer suggested in opening statement and argument that appellant could have touched the box of ammunition before the victim purchased it.

The Florida case most factually similar is Leonard v. State, 731 So.2d 712 (Fla. 2d DCA), rev. denied, 735 So.2d 1286 (Fla. 1999) in which, after a burglary and other crimes, the defendant's fingerprints were found on a candy bar wrapper in the victim's bedroom. Other candy bars of the same type were contained in a box in the victim's refrigerator. The defendant's girlfriend testified that she and the defendant had often shopped at the same supermarket used by the victim, and that the defendant would often pick up candy boxes, intending to purchase them for her children, but would sometimes have to return them if he did not have enough money. Although there was other evidence connecting appellant...