A.D. v. State

106 So. 3d 67, 2013 Fla. App. LEXIS 1824, 2013 WL 439786
CourtDistrict Court of Appeal of Florida
DecidedFebruary 6, 2013
DocketNo. 2D11-222
StatusPublished
Cited by13 cases

This text of 106 So. 3d 67 (A.D. v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.D. v. State, 106 So. 3d 67, 2013 Fla. App. LEXIS 1824, 2013 WL 439786 (Fla. Ct. App. 2013).

Opinion

LaROSE, Judge.

A.D., a juvenile, appeals his adjudication and the disposition of probation for burglary of a conveyance, grand theft of a motor vehicle, petit theft, criminal mischief, and trespass. See §§ 810.02(4)(b), 812.014(2)(c)(6), 812.014(3)(a), 806.13, 810.09(2)(a), Fla. Stat. (2010). A.D. argues that the trial court erred in denying his motions for judgment of acquittal. We affirm the criminal mischief, petit theft, and trespass adjudications. We reverse the adjudications for burglary and grand theft because the State failed to rebut A.D.’s hypothesis of innocence. As a result, we also remand for a new disposition hearing.

A minivan was stolen late at night from the Delara family’s property. The Delaras prominently displayed “private property” and “no trespassing” signs. Ms. Delara noticed their minivan’s lights on. She and her father went outside and saw that the minivan had crashed through a closed gate and had driven off. They also found their four-wheel all-terrain vehicle (ATV) smashed against the gate near a broken mailbox.

A deputy saw the stolen minivan speeding and swerving on and off the road. It turned onto a dirt road, hit a culvert, rolled over, and landed on the passenger side. Three youths were inside singing and moving their arms to music and making lewd gestures towards the deputy. A.D. was one of the three.

According to M.P., A.D. and K.B. were spending the night at his house. They were walking by the Delara property when M.P. saw the ATV and wanted to ride it. Without the owners’ permission, the three boys jumped over the fence onto the property.

M.P. drove the ATV into the fence; the fence fell on his leg. A.D. helped to extricate M.P. For his part, K.B. got in and started the van, drove it through the fence, picked up M.P. and A.D., and drove away. Neither M.P. nor A.D. told K.B. to stop.

I. Analysis

We review the denial of a motion for judgment of acquittal de novo. See I.M. v. State, 917 So.2d 927, 929 (Fla. 1st DCA 2005). A.D. argues that the evidence was insufficient to establish that he entered the property with the intent to commit a crime. He also argues that the State failed to show that he did more than trespass onto the property and later get into the already stolen van. A.D. contends that the circumstantial evidence did not exclude his reasonable hypothesis of innocence that his two eodefendants acted independently when M.P. wrecked the ATV and K.B. stole the van. See State v. Law, 559 So.2d 187, 188 (Fla.1989).

II. Burglary and Grand Theft of a Motor Vehicle

A.D. argues that the State’s evidence of grand theft and burglary was insufficient because K.B. took the van without A.D.’s knowledge or encouragement while A.D. was trying to remove the broken gate from M.P.’s leg. The State was required to show that A.D. aided and abetted K.B. in stealing the van. See Jacobs v. State, 396 So.2d 713, 716 (Fla.1981). Nothing in our record indicates that A.D. knew that KB. planned to steal the van. In fact, M.P. and A.D. ran away after the ATV crash; they entered the van only after K.B. had already driven it from the property.

G.C. v. State is instructive. 560 So.2d 1186 (Fla. 3d DCA 1990), abrogation on other grounds recognized by S.W. v. State, 999 So.2d 701, 702 n. 1 (Fla. 3d DCA 2008). There, the (Fla. 3d DCA 2008). There, the Third District held that merely being a passenger in a vehicle known to be stolen [70]*70is insufficient to support a theft charge. “Use alone ... is not enough”; theft requires the specific intent to deprive the owner of the property. Id. at 1187. “In the context of an automobile theft, [intent] would be shown, if not by aid or participation in the taking of the vehicle, then by some exercise of dominion and control over it afterwards.” Id. Because G.C. never took control of the vehicle, the court reversed his adjudication of delinquency for both theft and burglary. Id. at 1187-88.

Like G.C., A.D. entered the van after K.B. had driven it off the property. A.D. did not commit theft because he did not exercise dominion or control over the van at any point. See id. Additionally, A.D.’s after-the-crash behavior fails to establish participation in the theft. See Valdez v. State, 504 So.2d 9, 10 (Fla. 2d DCA 1986). Thus, the State failed to present evidence inconsistent with A.D.’s hypothesis of innocence that, after trespassing on the Delar-as’ property and helping M.P., he became frightened and fled, subsequently making the bad decision to enter the stolen van. The trial court should have granted A.D’s motion on the grand theft charge. See Law, 559 So.2d at 189 (“[I]f the state does not offer evidence which is inconsistent with the defendant’s hypothesis, ‘the evidence [would be] such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law.’ ” (alteration in original) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974))).

The State also charged A.D. with burglary in connection with the van theft. Section 810.02(l)(b)(l), in relevant part, describes burglary as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter.” Indisputably, A.D. entered the van without the owner’s permission. But the State still had to prove that A.D. intended to commit a crime in the van. See Drew v. State, 773 So.2d 46, 52 (Fla.2000) (“The language of the burglary statute, as drafted by the Legislature, requires both an entry and the requisite intent to commit a crime within the conveyance.”). Because the theft charge fails, so too must the burglary charge to the extent it is based on an intent to steal the van. See G.C., 560 So.2d at 1188 (holding that because the theft charge against a juvenile passenger in a stolen vehicle failed, the burglary charge regarding the same vehicle must also fail).

To sustain the burglary charge, the State must have shown some other intent besides the theft. The State proposed that A.D. entered the van in furtherance of the ATV theft. Specifically, the State theorizes that once A.D. and M.P failed to make off with the ATV, the boys attempted to use the van to break through the gate so that they could then take the ATV. However, the evidence does not show that M.P. and A.D. knew what KB. was doing. Moreover, the fact that the boys did not retrieve the ATV contradicts the State’s theory. The trial court should have granted AD.’s motion in part, reducing the burglary charge to the lesser-included offense of trespass in a conveyance under section 810.08, Florida Statutes (2010). See D.L. v. State, 567 So.2d 5, 6 (Fla. 3d DCA 1990) (holding that a juvenile charged with burglary and theft of an automobile committed the lesser-included offense of trespass in conveyance when the State failed to show specific intent); G.C. v. State, 407 So.2d 639, 640 (Fla. 3d DCA 1981) (“Where two or more inferences must be drawn from the direct evidence, then pyramided to prove the offense, the evidence lacks the conclusive nature necessary to support a conviction.”).

[71]*71Accordingly, we reverse A.D.’s adjudications of delinquency for burglary and grand theft, remanding for the trial court to reduce the burglary adjudication to trespass in a conveyance.

III. Theft of the ATY

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Cite This Page — Counsel Stack

Bluebook (online)
106 So. 3d 67, 2013 Fla. App. LEXIS 1824, 2013 WL 439786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ad-v-state-fladistctapp-2013.