Fox v. State

469 So. 2d 800, 10 Fla. L. Weekly 946
CourtDistrict Court of Appeal of Florida
DecidedApril 11, 1985
DocketAU-258
StatusPublished
Cited by9 cases

This text of 469 So. 2d 800 (Fox 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
Fox v. State, 469 So. 2d 800, 10 Fla. L. Weekly 946 (Fla. Ct. App. 1985).

Opinion

469 So.2d 800 (1985)

Caroline Ann FOX, Appellant,
v.
STATE of Florida, Appellee.

No. AU-258.

District Court of Appeal of Florida, First District.

April 11, 1985.
Rehearing Denied June 4, 1985.

Larry D. Simpson, of Davis, Judkins & Simpson, Tallahassee, for appellant.

Wallace Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Caroline Ann Fox appeals an order adjudging her guilty of robbery, in violation of section 812.13, Florida Statutes (1981), contending that the evidence was legally insufficient to prove beyond a reasonable doubt that she was guilty as charged. We agree and reverse.

The evidence, viewed most favorably to the state's position, proves the following events. About 5:00 a.m. on April 12, 1983, Fox, accompanied by her friend and codefendant, Griffin, drove a small automobile *801 owned by her employer to a Tallahassee twenty-four convenience store. She went inside, bought a bag of Bugle potato chips and a bottle of Tab, joked with the clerk, and then walked out of the store. Some five to ten minutes later, a regular customer named Jones came to the store and purchased a snack. When he arrived, he observed Fox's car parked in front, headed toward the store. When he left, her car had been moved to the side of the store near a dumpster, headed away from the storefront. Fox was in the driver's seat, while Griffin was standing behind the dumpster and appeared to be relieving his bladder. From her location, Fox could not see into the store. Jones encountered difficulty starting his car and returned to the store for help. The clerk went outside with Jones and noticed that Fox and Griffin were now leaning against the fender of Fox's car. Griffin, observing the efforts to pushstart Jones's car, came over to help while Fox stayed at her car. After Jones's car started, the clerk walked back inside the store, followed by Griffin. Griffin then walked to a cooler at the back of the store, stooped down for about thirty seconds, and returned to the clerk standing at the cash register: Holding one hand behind his back, Griffin said that he would shoot the clerk unless he gave Griffin the money in the cash register. No gun was displayed by Griffin. After receiving money from the clerk, Griffin directed him to lie on the floor, and the clerk did so. Approximately fifteen seconds later, the clerk heard a car engine start and deduced that the car properly left the parking lot headed north. The clerk did not hear tires squealing or any other indication of a hasty departure by Fox.

Later that morning, the manager of another convenience store located seven miles away was listening to his police scanner and heard a report of a robbery and the description of the robber. A few minutes later, Griffin entered this store and bought a drink with a dollar bill he pulled from a "big pile of bills" taken out of his pocket. Fox remained in the car. The manager recognized Griffin from the police description and, after Griffin left, notified the sheriff's office. In a short time, Fox and Griffin were stopped and arrested by a deputy. Neither resisted arrest. Fox produced her driver's license and received permission to call her employer, whose car she was driving. Griffin was searched, and some money was found in his boot, including a bill marked by the convenience store for security purposes. There was no indication that any money was found on Fox. Fox still had her bag of Bugle potato chips and Tab. No gun was found in the car or on either Fox or Griffin. The two were taken to the convenience store Griffin had robbed, and the clerk identified them as "the people that [sic] had robbed him earlier."

Fox and Griffin were tried together on the robbery charge, and both were convicted as principals in the first degree. Since Fox was not an actual perpetrator of the robbery, the state necessarily proceeded against her upon the theory that one who "aids, abets, counsels, hires, or otherwise procures such offense to be committed" is a principal in the first degree. § 777.011, Fla. Stat. (1981). To sustain Fox's conviction as an aider and abetter, the state must have proven beyond a reasonable doubt that a robbery was committed, that Fox aided in the commission of it, and that Fox had the specific intent to participate in the crime. Pack v. State, 381 So.2d 1199, 1200 (Fla. 2d DCA 1980). In the absence of direct evidence, the state must necessarily rely on circumstantial evidence to prove her knowledge and intent to participate, and such evidence, to be legally sufficient, must be both consistent with guilt and inconsistent with any reasonable hypothesis of innocence. Gains v. State, 417 So.2d 719, 722-723 (Fla. 1st DCA 1982), pet. for rev. denied, 426 So.2d 26 (Fla. 1983); Williams v. State, 206 So.2d 446 (Fla. 4th DCA 1968).

In Gains, supra, this court reversed the conviction of Joseph Williams for aiding and abetting an armed robbery because the circumstantial evidence merely placed him in an automobile outside the scene of the *802 robbery and did not show that he had seen his three companions carrying guns, or had heard them discussing the crime prior to its commission, or had acted as a lookout for the trio, or attempted to elude the police until after his companions informed him of the robbery. Such evidence, we held, was inadequate to prove the element of intent necessary to support the conviction, stating:

The guilt of an aider or abettor, of course, can be established by circumstantial evidence; however, that evidence must be both consistent with guilt and inconsistent with any reasonable hypothesis of innocence. Williams v. State, 206 So.2d 446 (Fla. 4th DCA 1968); Davis v. State, 90 So.2d 629 (Fla. 1956). Here, it is apparent that Joseph Williams was not an active participant in the robbery. Rather, the prosecution's theory implicitly rests on the assumption that he was the `wheelman' for the crime. The evidence that, as the driver of the car, he was a knowing participant in the crime is circumstantial and thus more is needed than a suspicion or belief that under the circumstances, he knew what was occurring. Espinoza v. State, 183 So.2d 560 (Fla. 3d DCA 1966). The mere fact that he fled from the scene after the crime `does not exclude the reasonable inference that (he) had no knowledge of the crime until it actually occurred, and thus that he did not intend to assist in its commission.' J.H. v. State, 370 So.2d 1219, 1220 (Fla. 3d DCA 1979). Applying these standards to the facts elicited by the prosecution, we find that Joseph Williams' conviction cannot be sustained on the basis of circumstantial evidence. Considered in a light most favorable to the state's case, the evidence merely places Joseph Williams in the automobile outside the scene of the crime. There is no evidence that he had seen his companions carrying guns [see Williams v. State, 206 So.2d at 449] or that he had heard them discussing the crime prior to its inception. There is no evidence that he could see into the bank and thereby have ascertained the apparent intentions of his companions. There is no showing that he acted as a lookout for the trio. See Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980). Further, he drove out of the parking lot at normal speeds while obeying traffic signals. He did not attempt to elude the police until, as we can fairly infer from the evidence, his companions informed him of something. Pack, supra. Moreover, upon being apprehended, he did nothing to resist arrest.

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Cite This Page — Counsel Stack

Bluebook (online)
469 So. 2d 800, 10 Fla. L. Weekly 946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fox-v-state-fladistctapp-1985.