NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
J.A.H., ) ) Appellant, ) ) v. ) Case No. 2D17-4027 ) STATE OF FLORIDA, ) ) Appellee. ) )
Opinion filed June 26, 2019.
Appeal from the Circuit Court for Pinellas County; Kathleen T. Hessinger, Acting Circuit Judge.
Thomas Matthew McLaughlin, Clearwater, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
BLACK, Judge.
J.A.H. challenges the order withholding adjudication and placing him on
probation for one count of theft of a motor vehicle and three counts of burglary. He contends that the court erred in denying his motion for judgment of dismissal. We agree
and reverse and remand for dismissal of the petition for delinquency.
J.A.H. was charged with one count of conspiracy to commit burglary of a
conveyance, one count of theft of a motor vehicle, and five counts of burglary of a
conveyance. J.A.H. and two codefendants proceeded to an adjudicatory hearing. The
evidence at the hearing established that a vehicle was stolen on February 12, 2017, and
was not seen again until four days later, February 16, 2017, around 2:00 a.m. Officers
followed the vehicle, and when the vehicle stopped near an apartment complex, five
individuals exited the vehicle and ran. All five individuals were quickly apprehended,
one of whom was J.A.H. While in custody, J.A.H. admitted that he knew the vehicle
was stolen. But J.A.H. did not provide information about the burglaries, vehicle theft, or
where he had been seated in the vehicle.
In the stolen vehicle officers found a wallet, purse, watch, and sneakers,
none of which belonged to the vehicle's owner. At the adjudicatory hearing, the owners
of those items identified them and testified that the items had been in their respective
vehicles on the night of February 15, 2017. The owner of the wallet testified that on the
morning of February 16 she received a call from detectives advising that her wallet had
been found. She and her boyfriend then confirmed that their vehicles had been
burglarized.
Another burglary victim testified regarding security video of his residence.
The video showed five individuals burglarizing the victim's girlfriend's vehicle and
attempting to break into the victim's truck, both of which were parked outside of the
victim's residence. The victim testified that he could not determine the ethnicity of the
-2- individuals depicted in the video because he "did not have a clear video." He also
testified that he did not know any of the defendants by name or face. When asked if he
could identify the defendants using the video, the victim testified, "I believe from seeing
them now I can almost tell you which ones are which." However, when asked if he
would be able to identify the individuals in the video using a photo pack, the victim
responded "no."
The individuals in the video were not identified by clothing or other
description. The State presented no fingerprint or other evidence connecting J.A.H. to
either the burglarized vehicles or the stolen items.
After the State rested, J.A.H. moved for judgment of dismissal of the
charges. The court dismissed two of the burglary charges and the conspiracy charge.
As to the charges at issue on appeal, J.A.H. argued that the State had failed to present
sufficient evidence of the grand theft, based on Canady v. State, 813 So. 2d 161 (Fla.
2d DCA 2002), and had failed to present sufficient evidence of the burglaries where
there was no evidence of J.A.H.'s control over recently stolen property, relying on
Garcia v. State, 899 So. 2d 447 (Fla. 4th DCA 2005). The court denied the motion for
judgment of dismissal, found that J.A.H. had committed the crimes, withheld
adjudication, and placed J.A.H. on probation for an indefinite period not to exceed his
nineteenth birthday.
We review the denial of a motion for judgment of dismissal de novo.
M.D.S. v. State, 982 So. 2d 1282, 1284 (Fla. 2d DCA 2008). "In this circumstantial
evidence case, the State must not only prove the elements of the crime but also must
-3- present evidence inconsistent with any reasonable hypothesis of innocence." A.D.P. v.
State, 223 So. 3d 428, 430 (Fla. 2d DCA 2017) (citation omitted).
As to the motor vehicle theft charge, there was no evidence connecting
J.A.H. to the theft or establishing that J.A.H. had possession of the vehicle. See id. at
430-31. The law is clear that where the evidence established only that J.A.H. was a
passenger in the vehicle and knew the vehicle was stolen, judgment of dismissal was
required. See id. at 431 ("When the State fails to show that the accused exercised
dominion and control over the vehicle, such as when a person is merely a passenger, a
motor vehicle theft has not been established."); M.D.S., 982 So. 2d at 1284-85 (holding
that the failure to establish that the defendant exercised control over the stolen vehicle
required reversal); Canady, 813 So. 2d at 161 ("An individual who is a passenger in a
vehicle after the vehicle has been stolen, even with knowledge that it has been stolen,
cannot be convicted of grand theft." (citing Schlangen v. State, 735 So. 2d 581, 581
(Fla. 2d DCA 1999))); A.J.R. v. State, 726 So. 2d 326, 327 (Fla. 2d DCA 1999)
("Concerning the grand theft charge, . . . the evidence at best established that [A.J.R.]
was a passenger in a previously-stolen vehicle. This fact was insufficient to prove a
criminal intent to deprive or appropriate property, as required under the theft statute.");
cf. Rivers v. State, 124 So. 3d 247, 254 (Fla. 2d DCA 2013) ("The trooper's identification
of Rivers as the driver of the stolen [vehicle] established his possession of it [for
purposes of the grand theft of the vehicle].").
As to the burglaries, no evidence placed J.A.H. at the scene of the
burglaries or suggested that J.A.H. had possession of the stolen items; likewise, no
evidence indicated where J.A.H. had been sitting in the stolen vehicle in reference to
-4- those items.1 See Rivers, 124 So. 3d at 252 ("The State's evidence established that the
purses were stolen about a half hour before the trooper began pursuing the [stolen
vehicle] and that Rivers was in the driver's seat when the chase ended. But no
evidence placed the [stolen vehicle] in the vicinity of the school where the purses w[ere]
stolen, and no evidence showed that Rivers even knew the purses were in the car,
much less that he had dominion and control of them."). Further, although the State
repeatedly contended that the stolen vehicle was used in the burglaries of the other
vehicles, the only evidence supporting that theory was the presence of some of the
items in the stolen vehicle hours later.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
J.A.H., ) ) Appellant, ) ) v. ) Case No. 2D17-4027 ) STATE OF FLORIDA, ) ) Appellee. ) )
Opinion filed June 26, 2019.
Appeal from the Circuit Court for Pinellas County; Kathleen T. Hessinger, Acting Circuit Judge.
Thomas Matthew McLaughlin, Clearwater, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
BLACK, Judge.
J.A.H. challenges the order withholding adjudication and placing him on
probation for one count of theft of a motor vehicle and three counts of burglary. He contends that the court erred in denying his motion for judgment of dismissal. We agree
and reverse and remand for dismissal of the petition for delinquency.
J.A.H. was charged with one count of conspiracy to commit burglary of a
conveyance, one count of theft of a motor vehicle, and five counts of burglary of a
conveyance. J.A.H. and two codefendants proceeded to an adjudicatory hearing. The
evidence at the hearing established that a vehicle was stolen on February 12, 2017, and
was not seen again until four days later, February 16, 2017, around 2:00 a.m. Officers
followed the vehicle, and when the vehicle stopped near an apartment complex, five
individuals exited the vehicle and ran. All five individuals were quickly apprehended,
one of whom was J.A.H. While in custody, J.A.H. admitted that he knew the vehicle
was stolen. But J.A.H. did not provide information about the burglaries, vehicle theft, or
where he had been seated in the vehicle.
In the stolen vehicle officers found a wallet, purse, watch, and sneakers,
none of which belonged to the vehicle's owner. At the adjudicatory hearing, the owners
of those items identified them and testified that the items had been in their respective
vehicles on the night of February 15, 2017. The owner of the wallet testified that on the
morning of February 16 she received a call from detectives advising that her wallet had
been found. She and her boyfriend then confirmed that their vehicles had been
burglarized.
Another burglary victim testified regarding security video of his residence.
The video showed five individuals burglarizing the victim's girlfriend's vehicle and
attempting to break into the victim's truck, both of which were parked outside of the
victim's residence. The victim testified that he could not determine the ethnicity of the
-2- individuals depicted in the video because he "did not have a clear video." He also
testified that he did not know any of the defendants by name or face. When asked if he
could identify the defendants using the video, the victim testified, "I believe from seeing
them now I can almost tell you which ones are which." However, when asked if he
would be able to identify the individuals in the video using a photo pack, the victim
responded "no."
The individuals in the video were not identified by clothing or other
description. The State presented no fingerprint or other evidence connecting J.A.H. to
either the burglarized vehicles or the stolen items.
After the State rested, J.A.H. moved for judgment of dismissal of the
charges. The court dismissed two of the burglary charges and the conspiracy charge.
As to the charges at issue on appeal, J.A.H. argued that the State had failed to present
sufficient evidence of the grand theft, based on Canady v. State, 813 So. 2d 161 (Fla.
2d DCA 2002), and had failed to present sufficient evidence of the burglaries where
there was no evidence of J.A.H.'s control over recently stolen property, relying on
Garcia v. State, 899 So. 2d 447 (Fla. 4th DCA 2005). The court denied the motion for
judgment of dismissal, found that J.A.H. had committed the crimes, withheld
adjudication, and placed J.A.H. on probation for an indefinite period not to exceed his
nineteenth birthday.
We review the denial of a motion for judgment of dismissal de novo.
M.D.S. v. State, 982 So. 2d 1282, 1284 (Fla. 2d DCA 2008). "In this circumstantial
evidence case, the State must not only prove the elements of the crime but also must
-3- present evidence inconsistent with any reasonable hypothesis of innocence." A.D.P. v.
State, 223 So. 3d 428, 430 (Fla. 2d DCA 2017) (citation omitted).
As to the motor vehicle theft charge, there was no evidence connecting
J.A.H. to the theft or establishing that J.A.H. had possession of the vehicle. See id. at
430-31. The law is clear that where the evidence established only that J.A.H. was a
passenger in the vehicle and knew the vehicle was stolen, judgment of dismissal was
required. See id. at 431 ("When the State fails to show that the accused exercised
dominion and control over the vehicle, such as when a person is merely a passenger, a
motor vehicle theft has not been established."); M.D.S., 982 So. 2d at 1284-85 (holding
that the failure to establish that the defendant exercised control over the stolen vehicle
required reversal); Canady, 813 So. 2d at 161 ("An individual who is a passenger in a
vehicle after the vehicle has been stolen, even with knowledge that it has been stolen,
cannot be convicted of grand theft." (citing Schlangen v. State, 735 So. 2d 581, 581
(Fla. 2d DCA 1999))); A.J.R. v. State, 726 So. 2d 326, 327 (Fla. 2d DCA 1999)
("Concerning the grand theft charge, . . . the evidence at best established that [A.J.R.]
was a passenger in a previously-stolen vehicle. This fact was insufficient to prove a
criminal intent to deprive or appropriate property, as required under the theft statute.");
cf. Rivers v. State, 124 So. 3d 247, 254 (Fla. 2d DCA 2013) ("The trooper's identification
of Rivers as the driver of the stolen [vehicle] established his possession of it [for
purposes of the grand theft of the vehicle].").
As to the burglaries, no evidence placed J.A.H. at the scene of the
burglaries or suggested that J.A.H. had possession of the stolen items; likewise, no
evidence indicated where J.A.H. had been sitting in the stolen vehicle in reference to
-4- those items.1 See Rivers, 124 So. 3d at 252 ("The State's evidence established that the
purses were stolen about a half hour before the trooper began pursuing the [stolen
vehicle] and that Rivers was in the driver's seat when the chase ended. But no
evidence placed the [stolen vehicle] in the vicinity of the school where the purses w[ere]
stolen, and no evidence showed that Rivers even knew the purses were in the car,
much less that he had dominion and control of them."). Further, although the State
repeatedly contended that the stolen vehicle was used in the burglaries of the other
vehicles, the only evidence supporting that theory was the presence of some of the
items in the stolen vehicle hours later. The security video showed the individuals on
foot, not in a vehicle. The presence of the stolen items in the vehicle is insufficient
evidence that J.A.H. burglarized the other vehicles. See id. The State is not entitled to
the inference of guilt of theft and burglary based on the presence of the stolen property
because J.A.H. was not the sole occupant of the vehicle and the State did not establish
that J.A.H. exercised control over the property. See M.D.S., 982 So. 2d at 1285
(reversing where "the State did not present sufficient evidence to prove that M.D.S.
possessed the [stolen vehicle]"); Bronson v. State, 926 So. 2d 480, 484 (Fla. 2d DCA
2006) (discussing requirement that possession of the stolen property must be
"conscious and substantial" and "both personal and exclusive").
1We note that even had the security video and testimony placed J.A.H. at the scene of the burglary, "[m]ere knowledge that an offense is being committed and mere presence at the scene of the crime are insufficient to establish participation in the offense." See Garcia, 899 So. 2d at 450.
-5- Accordingly, the trial court erred when it denied the motion for judgment of
dismissal. We reverse the order withholding adjudication and placing J.A.H. on
probation and remand with instructions to dismiss the delinquency petition.
Reversed and remanded.
SALARIO and ROTHSTEIN-YOUAKIM, JJ., Concur.
-6-