Swanson v. State, 97-3777

• Decision Date: 22 July 1998
• Docket Number: No. 97-3777,97-3777
• Parties: 23 Fla. L. Weekly D1711 Edward A. SWANSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1097

713 So.2d 1097

23 Fla. L. Weekly D1711

Edward A. SWANSON, Appellant, v. STATE of Florida, Appellee.

No. 97-3777.

District Court of Appeal of Florida,

Fourth District.

July 22, 1998.

Richard L. Jorandby, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Rochelle L. Kirdy, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, Judge.

Edward Swanson (appellant) appeals the judgment and sentence entered against him. Following a jury trial, appellant was convicted of grand theft of an all-terrain vehicle (ATV). He argues that the evidence against him was insufficient as a matter of law and that the trial court erred in failing to grant his motion for judgment of acquittal. We disagree and affirm.

The evidence showed that during the early morning hours of January 9, 1997, Thomas Beert was awakened by his wife, who, while caring for their newborn baby, heard a car outside their house. Beert looked out his bedroom window and saw a van with its lights on moving slowly in front of their house. He moved to another room for a better view and observed someone pushing a four-wheeler belonging to his neighbor, Wade Lowery, in front of the van. The van's headlights were shining directly on the person pushing the ATV. Beert quickly ran downstairs and got in his truck. However, by the time he arrived, the van was gone and the ATV was abandoned approximately forty feet away and pushed between two pine trees. ¹ Beert drove around searching for the van but did not see it or observe anything else unusual.

As Beert was returning home, he saw Sgt. Johnson on patrol and flagged him down. He reported seeing two people trying to steal his neighbor's ATV. While he was talking to the deputy, Beert spotted the van and took off after it. Sgt. Johnson and another back up deputy followed behind and stopped the van at a nearby Chevron gas station. Beert identified the person who exited the passenger side of the van, Dewey Hood, as the same person whom he observed pushing the ATV. At trial, he identified appellant as the person he saw exit the driver's side of the van when ordered to do so by the deputies at the gas station.

Lowery, the owner of the ATV, testified that the vehicle was a 1986 200 TRX four-wheeler in "perfect" condition and worth "probably around fifteen hundred" dollars. He said he had parked the vehicle in his driveway the evening before and did not give anyone permission to take it or remove it from his driveway.

Deputy Younkin investigated the scene and testified that Lowery's house was located directly behind Beert's house. He observed tire tracks on the dew-covered grass indicating that the ATV was pushed from Lowery's house past Beert's house and then onto the asphalt.

The state called Dewey Hood as a witness. According to Hood, he and his uncle, the appellant, had been together that evening and were heading home on Interstate 95 when they decided to stop at a 24-hour Chevron gas station for cigarettes. While taking a shortcut through a residential area, they saw an ATV on the side of the road next to some garbage. Hood testified that he thought it was trash and asked appellant to slow down so he could get a better look at it. While appellant remained in the van, Hood got out and pushed the ATV some distance to see if it would move. The van was situated so that the headlights were shining on Hood and the ATV. Initially, Hood testified that the vehicle would not move after he shoved it a few feet. Concluding it was trash, he left it and got back in the van. When questioned further, he changed his testimony slightly and said that upon closely examining the ATV, he realized it was a good quality vehicle and, thus, discarded it between two pine trees. Afterwards, he got back in the van and appellant drove them away to the nearby Chevron station. He conceded that while he was on Lowery's street looking at the ATV, he saw a police officer drive by them.

At the conclusion of Hood's testimony, the state rested and the defense moved for a judgment of acquittal. The trial judge acknowledged that it was a "close call" but reserved ruling on the motion. Following the motion, appellant testified during the defense case. His testimony was consistent with Hood's. He said that when he saw that the ATV was "in perfect condition" he told Hood to "get your ass in here and let's go." At the close of all the evidence, the defense renewed its motion for judgment of acquittal.

The appellant's theory of defense was that neither he nor co-defendant Hood had any intent to steal the ATV; that he merely sat in his van while Hood investigated what he thought was an abandoned four-wheeler on the side of the road, and that Hood, upon realizing that its condition was inconsistent with abandonment, immediately left it alone. Appellant argues that there was insufficient evidence to prove that Hood intended to steal the ATV and that appellant intended to participate in the theft.

The state charged appellant with third-degree grand theft, in violation of section 812.014, Florida Statutes, which provides, in pertinent part:

(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit from the property.

(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

Based on the evidence presented, it is apparent that the state proceeded against appellant on the theory that he aided and abetted Hood in the theft or attempted theft of the ATV. To secure a conviction on an aider and abettor theory, the state must establish (1) that the defendant helped the person who actually committed the crime by doing or saying something that caused, encouraged, incited or otherwise assisted that person to commit the crime; and (2) that the defendant intended to participate in the crime. See Sikes v. State, 711 So.2d 250 (Fla. 4th DCA 1998); Evans v. State, 643 So.2d 1204 (Fla. 1st DCA 1994); Staten v. State, 519 So.2d 622 (Fla.1988).

Mere knowledge that an offense is being committed or mere presence at the scene is not sufficient to establish participation. See Arroyo v. State, 705 So.2d 54 (Fla. 4th DCA 1997); C.O'D v. State, 696 So.2d 492 (Fla. 4th DCA 1997); West v. State, 585 So.2d 439 (Fla. 4th DCA 1991); Valdez v. State, 504 So.2d 9 (Fla. 2d DCA 1986). It is axiomatic that before an accused may be convicted as an aider and abettor, "it must be shown not only that he assisted the actual perpetrator but that he intended to participate in the crime." Willis v. State, 497 So.2d 947 (Fla. 1st DCA 1986), citing Horton v. State, 442 So.2d 1064, 1065-1066 (Fla. 1st DCA 1983); G.C. v. State, 407 So.2d 639 (Fla. 3d DCA 1981).

In the case before us, appellant contends that the record is devoid of evidence that his companion, Hood, intended to commit theft of the ATV or that appellant aided and abetted Hood in the commission of the theft; that, at best, the evidence established that appellant was merely in the company of another who may have committed a theft.

First, with regard to proof of Hood's intent to "temporarily or permanently deprive" the owner of the ATV, appellant argues that the state adduced testimony from its own witness, Hood, which negated any criminal intent. Appellant asserts that Hood, called as a state witness, gave...