T.W. v. State

• Decision Date: 03 October 2012
• Docket Number: No. 4D11–2121.,4D11–2121.
• Citation: 98 So.3d 238
• Parties: T.W., a Child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

98 So.3d 238

T.W., a Child, Appellant,
v.
STATE of Florida, Appellee.

No. 4D11–2121.

District Court of Appeal of Florida,
Fourth District.

Oct. 3, 2012.

[98 So.3d 239]

Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant

[98 So.3d 240]

Attorney General, West Palm Beach, for appellee.

CIKLIN, J.
Introduction

T.W. appeals the trial court's denial of a motion for dismissal of the charges against him for burglary and injuring a police dog. We conclude that the burglary conviction should have been dismissed because there was no evidence that T.W. intended to aid in the burglary or that he committed any act in furtherance of the burglary. We further hold that the evidence was insufficient to find that the police dog suffered “great bodily harm” under section 843.19(2), Florida Statutes (2010), as a result of his encounter with T.W. and reverse that conviction as well. We also remand for a new disposition hearing for T.W.'s remaining charge, resisting arrest without violence.

Background

The state filed a petition for delinquency on November 5, 2010, accusing T.W. of committing burglary of a conveyance, injuring a police dog, and resisting arrest without violence,¹ based on events occurring on September 26, 2010. On May 20, 2011, the matter proceeded to a non-jury trial.

Deputy Michael Henken, of the Broward County Sheriff's Office, testified that he was on routine patrol around 1:00 a.m. in a marked law enforcement vehicle. He was slowly driving through a neighborhood and patrolling the homes in the area when he came upon two or three young males in and around a Ford Explorer sports utility vehicle (“SUV”), which was parked on the side of the road. As he drove past, he saw that one of the males was actually inside the SUV. He said that another male, T.W., was standing by the passenger door of the SUV with a “stunned” look on his face. Deputy Henken rolled his car past the SUV, stopped, put it in reverse, and returned to the SUV. As he did so, the males scattered on foot. Deputy Henken was unable to catch up to any of the fleeing individuals and thus called for K–9 and helicopter backup.

Next, Deputy Emmanuel Koutsofios testified that he is a K–9 handler whose primary job consists of locating fleeing suspects. He is trained to recognize if a police dog is in pain or injured. He arrived at the scene in response to a request to locate the burglary suspects who had fled. After issuing the standard canine warning,² he released his police dog, Rocky, to find the suspects.

Rocky, remaining tethered to a fifteen-foot leash, detected someone near the side of a house. Deputy Koutsofios took Rocky to the backyard of the house, where he issued more police warnings. Deputy Koutsofios then heard the sounds of screaming and scuffling in the backyard near a pool pump and some bushes. He turned on his flashlight and saw T.W. on the ground kicking Rocky, who had detained T.W. by biting his leg. Deputy Koutsofios saw T.W. kick Rocky “several” times with his free leg but could not provide an estimated number of kicks. T.W. reportedly kicked Rocky throughout the dog's entire facial area.

Deputy Koutsofios testified that he yelled at T.W. multiple times to stop kicking Rocky so the deputy could pull him

[98 So.3d 241]

back, but T.W. did not comply, started to stand up, and then began punching Rocky “numerous times” with a closed fist. Deputy Koutsofios heard Rocky yelp, which he found unusual because Rocky had been hit previously while working but had never before made a similar sound. The deputy also testified that Rocky is trained to “bite and hold” in these situations and will only release a suspect upon command or if the dog's defensive instincts force him to do so. Rocky released T.W.'s leg and began biting at T.W.'s hand, which was being used to strike Rocky in the face. Deputy Koutsofios indicated that Rocky is trained to tolerate high levels of pain, so the fact that Rocky yelped and released T.W. was significant.

Deputy Koutsofios then apprehended T.W., forced him to the ground, removed Rocky, and called for assistance. Deputy Koutsofios noticed that Rocky had blood around the white fur under his chin (most of Rocky's fur is black). According to the deputy, Rocky “had blood coming from his nose down his mouth and it was all where the white part is and it was on the pool deck as well.”

Deputy Koutsofios's supervisors instructed him to keep a watchful eye on Rocky for the evening and let him rest. The supervisor indicated that it was not necessary to bring Rocky to a veterinarian or make arrangements to have x-rays taken. The deputy kept Rocky in the living room of his house and vigilantly observed Rocky during the night. At the time of the trial, Deputy Koutsofios said that Rocky was doing fine.

On cross-examination, Deputy Koutsofios testified that Rocky was eighty-five pounds and T.W. was a thirteen-year-old child weighing approximately 120 pounds. The deputy indicated that Rocky bit T.W.'s left lower leg so severely that he broke it. The deputy acknowledged that T.W. was bleeding from the bite and some of the blood on the pool deck might have been T.W.'s. Deputy Koutsofios also testified that Rocky suffered no permanent injury as a result of his...