Waldron v. State
| Decision Date | 25 April 2008 |
| Docket Number | No. 2D07-2007.,2D07-2007. |
| Citation | 979 So.2d 449 |
| Court | Florida District Court of Appeals |
| Parties | Scott Adrian WALDRON, Appellant, v. STATE of Florida, Appellee. |
James Marion Moorman, Public Defender, and Dan Hallenberg, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
Scott Adrian Waldron appeals his conviction for burglary of a structure and petit theft, contending that the trial court erred by instructing the jury on the inference arising from the unexplained possession of recently stolen property. Because there was insufficient evidence produced by the State at trial to merit this instruction, we reverse and remand for a new trial.
On February 1, 2006, the building that once housed Walker Memorial Hospital was empty and closed to the public. Its windows were boarded up and some of its doors were welded shut. Its caretaker was checking up on the building and, after entering it, he heard suspicious sounds. He called law enforcement and several officers arrived about fifteen minutes later. When some officers and the caretaker investigated further, they found inside the building two bags of tools, including cutters for bolts and wire, and rolled copper wire and tubing on the floor. The caretaker had been inside the building the day before and had not seen any tools or copper items pulled from the walls at that time.1
One of the officers was checking the rear of the building and came upon Mr. Waldron walking on a sidewalk that separated the building from the nearby lake only about a hundred yards away. Mr. Waldron was carrying two fishing poles that the officer noticed were broken and that had lines that were not properly attached. Mr. Waldron's hands were dirty and he had what appeared to be a fresh cut on one. In response to questioning Mr. Waldron looked nervous and said he had been fishing in the nearby lake, and his hands were dirty because he had been digging for worms. Mr. Waldron admitted to the officer that he had been inside the building and looked around but denied that he had attempted to steal anything.
The copper wiring that was pulled from the walls and ceiling of the building had been encased in a black material that, when handled, left a black, sticky, grimy substance on one's hand. The officer interviewing Mr. Waldron also noticed a similar substance on Mr. Waldron's hands. At trial, Mr. Waldron denied that he had such substance on his hands. There was undisputed evidence at trial that copper was a valuable commodity, then selling for several dollars a pound.
Over objection from defense counsel, the trial court gave the jury the standard instruction on proof of possession of stolen property, which is based on section 812.022(2), Florida Statutes (2005).2 The instruction tells the jury:
Proof of unexplained possession by an accused of property recently stolen by means of a burglary may justify a conviction of burglary with intent to steal that property if the circumstances of the burglary and of the possession of the stolen property, when considered in the light of all evidence in the case, convince you beyond a reasonable doubt that the defendant committed the burglary.
Fla. Std. Jury Instr. (Crim.) 13.1. At the jury charge conference, the State convinced the trial court to give the instruction by arguing that the evidence showed that Mr. Waldron was in constructive possession of the recently stolen property. The State relied on Holcomb v. State, 946 So.2d 633 (Fla. 4th DCA 2007) ().
Our supreme court has held that this instruction is permissible and not a comment on the evidence. Walker v. State, 896 So.2d 712 (Fla.2005). Because a person's possession of the recently stolen property involves the fruits of the burglary, the possession is "inextricably intertwined with the crime itself." Id. at 719. Unexplained possession of stolen property is sufficient to support a burglary conviction when it occurs as an adjunct to theft. Francis v. State, 808 So.2d 110, 134 (Fla. 2001).
Because it was advanced by the State and relied upon by the trial court, we review Holcomb, 946 So.2d 633. It is, however, distinguishable on its facts, and the trial court ought not to have relied upon it. Mr. Holcomb was found seated behind the steering wheel of a pickup truck in a part of a marina that was not open to the public. When a security guard tried to confront a second man seen exiting a boat, the second man got into the cab of Mr. Holcomb's truck. The two attempted to flee but their flight ended when a locked gate barred their exit from the marina. The second man fled, leaving Mr. Holcomb to be arrested and ultimately charged with burglary and the theft of the recently stolen items located in the bed of his pickup truck. Id. at 633-34.
Here, the evidence is materially different from that in Holcomb. Unlike Mr. Holcomb, who had the stolen items in the bed of the pickup truck he was driving, Mr. Waldron only had fishing poles in his possession poles that were not claimed to be stolen. Mr. Waldron was outside the building in which the stolen items were discovered, but no evidence was presented that he could exercise dominion and control over those items so far from his reach. Neither did the evidence suggest that Mr. Waldron had dominion and control over the building where the items were located. Although the State correctly relied on Holcomb for the proposition that evidence of constructive possession as well as of actual possession warrants the challenged instruction, the trial court erred in acceding to the State's request for the instruction in the face of the deficiency in the State's evidence.
Approximately one year before Mr. Waldron's trial, in Bronson v. State, 926 So.2d 480 (Fla. 2d DCA 2006), this court discussed when the instruction regarding the inference arising from the possession of recently stolen property should be given. Our record does not disclose that either party brought this case to the trial court's attention.
"To receive the benefit of the statutory inference, the State must establish, pursuant to section 812.022(2), that a defendant had `possession of property recently stolen.' " Id. at 483. Bronson makes clear that to establish the requisite possession, the State must carry the burden of a two-prong evidentiary...
To continue reading
Request your trial
-
Midgette v. State
...presence nearby while someone else possesses stolen property is also not sufficient to create the inference of guilt. Waldron v. State, 979 So.2d 449 (Fla. 2d DCA 2008) (holding presence outside of burglary location, even with nervous behavior and dirty hands, did not support inference); Br......
-
The trial (conduct of trial, jury instructions, verdict)
...his hands similar to that which resulted from handling the wire. The evidence is insufficient to give the instruction. Waldron v. State, 979 So. 2d 449 (Fla. 2d DCA 2008) Defendant and co-defendant were tried together for armed robbery and several aggravated assaults occur-ring during a ban......
-
Crimes
...his hands similar to that which resulted from handling the wire. The evidence is insufficient to give the instruction. Waldron v. State, 979 So. 2d 449 (Fla. 2d DCA 2008) Defendant cannot be convicted of both armed burglary of a dwelling and attempted home invasion robbery for a single entr......