Sorey v. State, 81-2465

• Decision Date: 28 September 1982
• Docket Number: No. 81-2465,81-2465
• Citation: 419 So.2d 810
• Parties: Albert SOREY, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 810

419 So.2d 810

Albert SOREY, Appellant, v. The STATE of Florida, Appellee.

No. 81-2465.

District Court of Appeal of Florida,

Third District.

Sept. 28, 1982.

Bennett H. Brummer, Public Defender and Michael L. Van Zamft, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

Sorey challenges his convictions for assorted crimes arising out of an armed holdup of a Burger King restaurant upon the essential ground that the sole evidence to establish the identity of Sorey as a perpetrator of the crimes was his fingerprints, which, he contends, were not shown by the State to have been made only at the time the crime was committed. Sorey separately challenges his convictions for kidnapping of the robbery victims, contending that the confinement of the victims, who were placed on the floor and bound with ropes, was merely incidental to, inherent in, and of no significance independent of the crime of robbery.

We quickly dispose of Sorey's challenge to the kidnapping convictions. The evidence shows that after the contents of the store safe had been removed, the four Burger King employees were made to lie on the floor of the restaurant where each had his hands tied behind his back and his feet tied together by Sorey and his confederate. The defendants departed and the bound victims were later found.

Sorey's act of tying the victims to facilitate his escape and lessen the risk of detection constitutes kidnapping, even applying the most stringent interpretation of Florida's kidnapping statute. See Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980), and its progeny, Carron v. State, 414 So.2d 288 (Fla. 2d DCA 1982); Simpkins v. State, 395 So.2d 625 (Fla. 1st DCA 1981); Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980); compare Gilley v. State, 412 So.2d 68 (Fla. 1st DCA 1982); Faison v. State, 399 So.2d 19 (Fla. 3d DCA 1981). In Harkins, the court held that tying the victim to the bed where he was sexually assaulted and stabbed to death was not incidental to and inherent in the sexual assault and murder and thus independently established the offense of kidnapping. ¹ Of course, under the broader view of the kidnapping statute which we espoused in Faison v. State, supra, Sorey's argument fares even worse. Accord, Dowdell v. State, 415 So.2d 144 (Fla. 1st DCA 1982) (requiring store manager at gunpoint to re-enter rear door of store and crawl to safe in front constitutes movement and confinement which served to lessen risk of detection and made out an offense under kidnapping statute).

We turn now to Sorey's argument that the circumstantial fingerprint evidence was insufficient to sustain the jury's finding of guilt and that he was entitled to a judgment of acquittal. The record reflects that one of the two robbers ordered the shift manager, Mr. Casebolt, to take him back to the safe located in a rear room, a non-public part of the restaurant. There the offender, his hands bared, reached into the safe, removed money and envelopes and placed them in a bag. Casebolt, in charge of the restaurant at the time of the robbery, testified that the envelopes contained instructions for gift certificate programs conducted by Burger King, were kept in the top compartment of the safe, had been there approximately two weeks, and, to the best of his knowledge, were inaccessible to the public. No manager from any other shift testified. Moments after the robbers left the restaurant a police officer in a patrol car spotted them. One had a bundle in his hand, which he threw down when the officer gave chase. Although the officer was unsuccessful in apprehending the robbers, the bag was recovered from a flowerbed some fifty feet from the Burger King and within an hour and a half of the robbery. One envelope found therein contained a fingerprint which matched Sorey's.

Sorey's basic thesis is that there were four persons who managed the Burger King on different shifts, each one with access to the safe, and that no testimony was elicited from the three managers who were absent when the crimes occurred to dispel the possibility that the envelope was removed from the safe and left out in the main and public part of the restaurant where a customer, perhaps Sorey, could have touched it. Thus, he says, the evidence does not exclude every reasonable hypothesis of innocence and is thereby insufficient for conviction.

Where, as here, fingerprint evidence is the sole evidence relied upon to establish that the defendant was the perpetrator of the crime, it is said that "the circumstances must be such that the print could have been made only at the time the crime was committed." ² Tirko v. State, 138 So.2d 388, 389 (Fla. 3d DCA 1962). The determination of whether the circumstances are such that the print could have been made only at the time the crime was committed is to be made by the fact-finder, Roberts v. State, 268 So.2d 578 (Fla. 3d DCA 1972), provided that the court, viewing the evidence in a light most favorable to the State, M. R. v. State, 399 So.2d 56 (Fla. 3d DCA 1981), has first determined that a reasonable-minded jury could find the guilt of the defendant beyond a reasonable doubt. In the Interest of G. B. S., 417 So.2d 1181 (Fla. 4th DCA 1982); Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974). Thus, in a case where fingerprint evidence is the sole evidence relied upon to establish the identity of the defendant as the perpetrator of the crime, the court, viewing the evidence most favorably to the State, must decide whether reasonable-minded jurors could find beyond a reasonable doubt that the fingerprints were made at the time the crime was committed. ³

Where the sole evidence linking a defendant to the crime is fingerprints found in a place or on a thing accessible to the general public and there is no other evidence to show that the prints were made at the time of the crime, see, e.g., Williams v. State, 247 So.2d 425 (Fla.1971), courts must conclude that a defendant is entitled to a judgment of acquittal. For example, in Ivey v. State, 176 So.2d 611 (Fla. 3d DCA 1965), evidence that the defendant's fingerprint was found on a glass jalousie on the front door of a store building was held insufficient to support a jury finding of guilt "because the print was in a public place and the record does not preclude that it might have been placed there sometime before the crime." Id. at 612. Moreover, when the place where the print is found is as accessible to the general public as a store front, the testimony of the store owner that he never saw the defendant at the store does not overcome the insufficiency. Ivey v. State, supra. See Dixon v. State, 216 So.2d 85 (Fla. 2d DCA 1968) (where a print is left in a place open to the public and there is no other evidence of identity, the courts must assume that a defendant was shopping rather than stealing). Similarly, in Wilkerson v. State, 232 So.2d 217 (Fla. 2d DCA 1970), fingerprints found on broken glass near and from the front glass door of a clothing shop which had been smashed in a burglary were insufficient to establish that the defendant committed the burglary. Since the front door was accessible to the general public, the prints might have been placed on the glass sometime before the glass was broken in the burglary. ⁴ , ⁵ And in A. V. P. v. State, 307 So.2d 468 (Fla. 1st DCA 1975), where the juvenile's fingerprints were on a soft drink bottle filled with gasoline and found in the vicinity of the arson, the assumption was indulged that the print could have been made at a time unconnected with the arson, presumably because a soft drink bottle is by its nature an object which may be discarded after use, and as such may bear the prints not only of a user, but any member of the public who may thereafter come upon it.

The hypothesis of innocence, that prints were made at a time other than the time of the crime, is then reasonable as a matter of law where the prints are found in a place or on a thing which is accessible to the general public and where there is no other evidence to show that the prints were made at the time of the crime. Where, however, the prints are located in a place, on an object, or on a particular part of an object to which the general public does not have access, the hypothesis that the print was not placed on the object at the time of the crime is not one which the court must declare reasonable as a matter of law, and it remains for the jury to determine its reasonableness. This is so because in the latter instance we need not assume that the defendant as a member of the general public placed his fingerprint at the place or on the object at a time other than the crime. Therefore, when the State proves that the print was found in a place or on a thing not accessible to the general public, such proof, standing alone, is legally sufficient, and the jury may infer from it that the print was made at the time of the crime. ⁶ See Dargans v. State, 259 So.2d 782 (Fla. 2d DCA 1972) (defendant's fingerprints found on bottom of beer carton which, on heels of break-in, was found outside of burglarized store; since bottom of the beer carton is normally inaccessible to store customers, evidence of the defendant's identity as the perpetrator of the break-in was sufficiently established) ⁷; Roberts v. State, supra (defendant's fingerprints found on kitchen doorjamb, cigarette lighter in bedroom, and windowsill in front bedroom were sufficient to establish that prints made at time of crime).

If, however, the defendant shows through testimony that he, unlike a member of the general public, had access to the place or object at a time other than the time of the crime so as to reasonably explain the existence of his prints, the version of events related by the defense must be accepted as true unless contradicted by other proof showing the...