K.H. v. State

265 So. 3d 684
CourtDistrict Court of Appeal of Florida
DecidedFebruary 22, 2019
DocketCase No. 2D17-4376
StatusPublished

This text of 265 So. 3d 684 (K.H. 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
K.H. v. State, 265 So. 3d 684 (Fla. Ct. App. 2019).

Opinion

CASANUEVA, Judge.

K.H., a juvenile, appeals the trial court's disposition order, which found that K.H. had committed the delinquent act of resisting an officer without violence. The trial court withheld adjudication and placed K.H. on probation. K.H. asserts that the trial court erred by failing to grant her motion for judgment of dismissal because the State failed to prove the officer was engaged in the lawful execution of a legal duty. We find her argument meritorious and reverse.

I. FACTS

On September 12, 2016, an officer with the Tampa Police Department responded to a call for service regarding a trespass at a gas station. The report received by the officer alleged that two Hispanic females were panhandling but failed to provide any other information, such as the age, height, weight, or clothing of the females. There was no testimony as to the identity of the caller.

Upon arriving at the gas station, the officer saw two females; one was later determined to be K.H. As he approached, the females walked away. The officer ordered them to stop; they did not. Rather, they continued walking around the side of the building. Again, the officer ordered the two to stop. Instead, K.H. departed by running away. Another officer testified to his involvement in helping to locate K.H. after she ran.

Upon this evidence, the trial court concluded the officer was engaged in the performance of a legal duty and denied the motion for judgment of dismissal. The adjudicatory hearing proceeded, and the trial court found that K.H. committed the delinquent act of resisting an officer without violence.

II. DISCUSSION

We review the denial of a motion for judgment of dismissal de novo. E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003). A conclusion that an act of delinquency *687was committed is to be sustained where, viewing the evidence in the light most favorable to the State, a rational trier of fact could find that the elements of the delinquent act have been established beyond a reasonable doubt. Id. Where the State's proof fails to establish a prima facie case of the delinquent act, a judgment of dismissal is proper. Id.

To establish the offense of resisting an officer without violence, "the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty." C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla. 2009) ; see also § 843.02, Fla. Stat. (2016). The mere act of flight alone does not constitute a criminal offense and generally is insufficient to form the basis of a resisting without violence charge. C.E.L., 24 So.3d at 1186. "[W]hen flight is the act of resistance, an individual who flees must know of the officer's intent to detain him, and the officer must be justified in making the stop at the point when the act of resistance occurs." Id. at 1188 (emphasis added).

To be justified in making the stop, the officer must possess a reasonable suspicion of criminal activity when the suspect is ordered to stop. M.R. v. State, 198 So.3d 1023, 1025 (Fla. 2d DCA 2016). That is, there must be a "reasonable and well-founded suspicion that criminal activity has occurred or is about to occur." Id.

In M.R., an officer on patrol observed M.R. and three other juveniles riding bicycles in an apartment complex. 198 So.3d at 1024. After seeing the officer's vehicle, the juveniles rode behind a building. This conduct caused the officer to become suspicious. Although he went behind the building on foot, he did not see the juveniles. However, as he was returning to his vehicle, the officer observed M.R. riding away and directed him to stop. M.R. did not stop, and he was later adjudicated delinquent for resisting an officer without violence. Id.

In reversing the adjudication of delinquency, this court observed in M.R. that "the officer must be justified in making the stop at the point when the command to stop is issued." Id. at 1025 (citing C.E.L., 24 So.3d at 1186 ). Under the facts presented, this court concluded that the evidence failed to establish that the officer had a reasonable suspicion of criminal activity at the time he ordered M.R. to stop. Id. Therefore, the evidence failed to establish the necessary element that the officer was engaged in the performance of a legal duty when M.R. was ordered to stop. Id.

In T.P. v. State, 224 So.3d 792, 793 (Fla. 2d DCA 2017), an officer responding to a call of loitering or prowling spotted T.P. about a quarter of a mile away from the reported location of the incident. The officer testified that T.P. matched the BOLO description of a light-skinned black male wearing shorts and a shirt. When told to stop, T.P. took flight and was charged with resisting an officer without violence. Id.

The State argued at trial that the officer had reasonable suspicion to detain T.P. based on the call about someone looking in windows. Id. at 794. We disagreed, finding "the officer observed no suspicious activity prior to ordering T.P. to stop.

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Related

Baptiste v. State
995 So. 2d 285 (Supreme Court of Florida, 2008)
M.R. v. State
198 So. 3d 1023 (District Court of Appeal of Florida, 2016)
T.P. v. State
224 So. 3d 792 (District Court of Appeal of Florida, 2017)
C.E.L. v. State
24 So. 3d 1181 (Supreme Court of Florida, 2009)
D.T. v. State
87 So. 3d 1235 (District Court of Appeal of Florida, 2012)
Lawshea v. State
99 So. 3d 603 (District Court of Appeal of Florida, 2012)
E.A.B. v. State
851 So. 2d 308 (District Court of Appeal of Florida, 2003)
Rochell v. State
934 So. 2d 586 (District Court of Appeal of Florida, 2006)

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Bluebook (online)
265 So. 3d 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kh-v-state-fladistctapp-2019.