Young v. State

• Citation: 141 So.3d 161
• Decision Date: 19 September 2013
• Docket Number: No. SC11–2151.,SC11–2151.
• Parties: Eric M. YOUNG, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

141 So.3d 161

Eric M. YOUNG, Petitioner,

v.STATE of Florida, Respondent.

No. SC11–2151.

Supreme Court of Florida.

Sept. 19, 2013.

James S. Purdy, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL; Kristen L. Davenport and Wesley Heidt, Assistant Attorneys General, Daytona Beach, FL, for Respondent.

QUINCE, J.

Eric M. Young was charged by information in Orange County with four offenses: burglary of a dwelling, robbery with a firearm, carjacking with a firearm and possession of a firearm by a convicted felon. A jury found Young guilty of the lesser included offenses of (1) burglary of a dwelling with an assault or battery with a dangerous weapon; (2) robbery with a weapon; and (3) carjacking with a dangerous weapon.¹ Young was sentenced to twenty years in prison for each conviction, to all run concurrently with the sentence that he was already serving for other unrelated crimes.

Young appealed his convictions to the Fifth District Court of Appeal, which affirmed his convictions for burglary of a dwelling and carjacking. Young v. State, 73 So.3d 825 (Fla. 5th DCA 2011). The Fifth District certified conflict with Munoz v. State, 937 So.2d 686 (Fla. 2d DCA 2006) on the issue of whether Florida's burglary statute requires a structure to be suitable for habitation, on the date of the offense, for the structure to meet the definition of a dwelling.²Id. We have jurisdiction. Seeart. V, § 3(b)(3), Fla. Const.

The Fifth and Second Districts disagree as to whether a structure undergoing substantial renovations constitutes a “dwelling” under section 810.011(2), Florida Statutes (2009). Young also seeks this Court's discretionary jurisdiction citing a conflict with the Third District's decision in Flores v. State, 853 So.2d 566 (Fla. 3d DCA 2003), as to whether a defendant can be convicted of carjacking where the force used in the robbery on the inside of the building is separate from the taking of the vehicle on the outside of the building. For the reasons that follow, we conclude that the building in question constitutes a dwelling under section 810.011(2), Florida Statutes (2009) and approve the Fifth District's denial of relief. We further conclude that Young's actions constitute a carjacking under section 812.133, Florida Statutes (2009). We disapprove the decision of the Second District in Munoz and the Third District in Flores to the extent that they are inconsistent with this opinion.

STATEMENT OF THE CASE AND FACTS

On October 1, 2009, Petitioner Eric M. Young was charged by information with four offenses: (1) burglary of a dwelling; (2) robbery with a firearm; (3) carjacking with a firearm; and (4) possession of a firearm by a convicted felon. The information alleged that, on September 6, 2009, Young entered a dwelling where the victim was located with the intent to commit an offense therein and that in the course of committing said offense, did make an assault or battery upon the victim, actually possessed a firearm or destructive device, and did carry, display, use, threaten to use or attempted to use a firearm, in violation of sections 810.02(1)(b) 1, 810.02(2)(a), 775.087(1) and 775.087(2), Florida Statutes (2009). The information further alleged that Young took certain property from the victim, in violation of sections 812.13(2)(a) and 775.087(2), Florida Statutes (2009); that he took the victim's motor vehicle by force, violence, assault or putting in fear, in violation of sections 812.133(1), 812.133(2)(a) and 775.087(2), Florida Statutes (2009); and that he did have in his care, custody, control or possession a firearm, after previously being convicted of a felony in violation of section 790.23, Florida Statutes (2009).

The victim testified at trial that he owns his own drywall texture business. At approximately 8:00 p.m. on the night of September 6, 2009, he was cutting drywall “in the kitchen/dining room/living room area” of a house that he had been hired to renovate. He stated that he had been working on the house for approximately a week and a half and that once he finished cutting the drywall that night, his task would be complete. No other workers were present in the house that night. While on the floor cutting drywall, the victim heard a voice and looked up to see a man walking toward him with a gun, saying “Don't look at me.” Young then said “Where's it at? Give it to me. You know where it's at.” Young proceeded to reach into the victim's pockets and removed the victim's cell phone, keys and wallet. The victim stated that there was an accomplice outside with his shirt pulled over his head who quickly walked in, looked around and walked out. The victim watched the perpetrators leave in the victim's truck and immediately ran to a neighboring house to call 911.

Patrol Officer Brandon Bottom of the Orlando Police Department testified at trial that on September 8, 2009, he attempted to pull over Young, who was driving the victim's white Ford truck, after he failed to stop at two stop signs. Young immediately accelerated to a high rate of speed but was eventually apprehended. Thereafter, the officer ran the license tag number of the truck and learned that the truck was reported stolen. Young was taken to jail.

Approximately four days after the robbery, the victim identified Young as the perpetrator in a photo lineup. That same day, the victim was able to retrieve his truck from the impound. The victim stated that when his truck was returned to him, it was in the same condition as the last time he saw it before the robbery, except that the truck previously had a quarter of a tank of gas and upon return, the gas tank was nearly empty. He also stated that all of his tools were accounted for and his wallet was also in the back seat of the car with all of the checks and credit cards still present. There were no unauthorized charges to the victim's credit cards and no money was missing from his bank account. The victim's cell phone was never recovered.

ANALYSIS

These facts present two issues to be resolved by this Court. The first issue is whether the trial court erred in finding Young guilty of burglary of a dwelling where the building in question was undergoing renovations and, arguably, not suitable for lodging. This is the subject of the certified conflict between the decision under review and the Second District's decision in Munoz v. State, 937 So.2d 686 (Fla. 2d DCA 2006). The second issue is whether the trial court erred in finding Young guilty of carjacking, where the force used in the robbery occurred inside of the building and the taking of the car occurred outside of the building. Young presented the carjacking issue to this court, citing express and direct conflict with the Third District's decision in Flores v. State, 853 So.2d 566 (Fla. 3d DCA 2003).

Fundamental Error

At the close of the State's case the defense moved for a judgment of acquittal, claiming that the State had not proven all of the elements needed for prima facie cases of burglary, robbery and carjacking. The defense did not elaborate on the basis for the motion in relation to the burglary and robbery charges, but went on to state that there was no evidence that the car was taken from the custody of the victim as required by the carjacking statute. In Brooks v. State, 762 So.2d 879, 895 (Fla.2000), this Court determined that a “technical and pro-forma” motion which requests a judgment of acquittal without further argument is “totally inadequate to preserve a sufficiency of the evidence claim for appellate review.” A defendant must preserve a claim of insufficiency of the evidence through a timely challenge in the trial court. F.B. v. State, 852 So.2d 226, 230 (Fla.2003). The motion or objection must be specific in order to preserve the claim for appellate review. Id. at 230 n. 2. A boilerplate objection or motion is inadequate. Id.

There are two exceptions to the requirement that a timely objection be made to the trial court: (1) where the defendant is sentenced to death; and (2) where the evidence is insufficient to show that a crime was committed at all. Id. at 230. As to the second exception, if the defendant is convicted of a crime where the evidence does not demonstrate that a crime has been committed at all, this constitutes a fundamental error, an error that “reaches to the foundation of the case and is equal to a denial of due process,” and therefore need not be preserved at trial. Id. at 230–31. Young claims that the fundamental error exception applies in this case. However, the evidence presented suggests, at the least, that Young committed a burglary of a structure. It is a question of fact for the jury whether the structure qualifies as a dwelling. As the evidence indicates that a crime was in fact committed by Young, Young's conviction cannot be said to be fundamental error. Therefore, any specific issue that Young would like to address on appeal must have been preserved at the trial level. Because Young did not specifically argue at trial that the building was not a “dwelling,” this claim was not properly preserved and has been waived. Further, as explained below, addressing the merits of this claim, Young has not established that the trial court erred.

Burglary of a Dwelling

Florida's burglary statute, section 810.011, defines dwelling as:

a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporaryor permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. However, during the time of a state of emergency ... the term includes such portions or remnants thereof as exist at the original site, regardless of absence of a wall or roof.

§ 810.011(2), Fla. Stat. (2007) (emphasis added). In Perkins v. State, 682 So.2d 1083, 1083 (Fla.1996), this Court...