Tinker v. State, 2D99-4710.
| Decision Date | 11 April 2001 |
| Docket Number | No. 2D99-4710.,2D99-4710. |
| Citation | 784 So.2d 1198 |
| Parties | Darren TINKER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
Darren Tinker appeals his conviction for burglary of an occupied dwelling with a battery. It is asserted that the trial court's instruction concerning the offense of burglary with a battery was erroneous and the prosecutor misstated the law in his closing argument. We agree and reverse and remand for a new trial. Tinker and the victim had been in an "on again, off again" relationship. At the time of the offense, the two were not seeing each other. On the day in question, the victim arrived home from work to discover that Tinker was inside her apartment without her permission. She asked Tinker to leave, but he refused. The victim left the apartment for a short time, and when she returned, Tinker was still there. After repeatedly asking Tinker to leave, the victim eventually called the police. In the presence of the police officers, the victim told Tinker that she did not want him in her apartment. Before he left, the police officers required Tinker to sign a trespass warning which indicated he would be arrested if he returned to the property.
Tinker called the victim several times during the evening, asking her to renew their relationship. The victim refused and eventually left the telephone off the hook. She fell asleep and when she awoke, she found that Tinker was once again inside her apartment without permission. Tinker was sitting on the end table near the couch on which she was lying. He did not move, but told her she was beautiful. The victim could tell that Tinker had been drinking. The frightened victim ran from the living room into the bedroom to call the police, but the telephone was entangled in the blankets on her bed and she was unable to free it because she was struggling with Tinker. As she attempted to get away by running down the hallway, Tinker struck her in the back and she fell on her stomach. Tinker also pulled her hair to the extent that a "massive clump of hair" came out in his hand. The victim screamed. Tinker threatened her and told her to remain quiet. Eventually, after Tinker had pleaded with the victim to take him back and she had refused, he left the apartment. The victim then called the police and Tinker was taken into custody.
Tinker was charged with burglary with a battery in violation of section 810.02(2)(a), Florida Statutes (1997), for entering or remaining in the dwelling of the victim "with the intent to commit an offense therein, and during the course thereof did commit a battery upon [the victim] by actually and intentionally touching or striking, or causing bodily injury to [the victim]."
The trial in this case was conducted on September 16, 1999. During the jury instruction conference, the defense counsel noted that there were two ways to commit a burglary: (1) the perpetrator enters the premises without permission with an intent to commit an offense, or (2) after a consensual entry into the premises, the perpetrator remains in the building with an intent to commit an offense. Defense counsel argued that only the first manner of committing the offense should have been charged to the jury because Tinker did not have permission to be in the victim's apartment.
The State and the trial court disagreed and, over defense counsel's objection, the jury charge included the instruction that Tinker was guilty of burglary if "[a]t the time of the entering or remaining in [the victim's home], Defendant Darren Tinker had a fully formed conscious intent to commit the offense of Battery in that structure." The instruction was improper. The court did not differentiate the two manners of committing the offense of burglary but combined them. There was no evidence that the victim ever consented to Tinker's entry into her apartment. Therefore, as correctly pointed out by the defense counsel, the "remaining in" language should not have been included in the instruction....
To continue reading
Request your trial
-
Foster v. State
..."the `remaining in' clause should be limited to the defendant who surreptitiously remains." 776 So.2d at 240; see Tinker v. State, 784 So.2d 1198, 1200 (Fla. 2d DCA 2001); Valentine v. State, 774 So.2d 934, 937 (Fla. 5th DCA 2001). Abandoning its earlier interpretation of the statute,1 the ......
-
Brown v. State
...been misled and the instruction caused them to arrive at a conclusion that it otherwise would not have reached." Tinker v. State, 784 So.2d 1198, 1200 (Fla. 2d DCA 2001) (citing Wadman v. State, 750 So.2d 655, 658 (Fla. 4th DCA V. DISCUSSION A. Introduction No reported Florida case has cons......
-
Crain v. State
...and the instruction caused them to arrive at a conclusion that it otherwise would not have reached.’ ” (quoting Tinker v. State, 784 So.2d 1198, 1200 (Fla. 2d DCA 2001))). 3. The state moved a certified copy of Mr. Crain's driving record into evidence, which showed that his “driver's licens......
-
Johnson v. State
...the trial court most likely confused the jury about whether it should consider venue. Such an error was prejudicial. See Tinker v. State, 784 So.2d 1198, 1200 (Fla. 2d DCA 2001). The improper bolstering of Special Agent Lomonaco's credibility during the Appellant's cross-examination and dur......