Opinion
No. 2D21-2660.
01-27-2023
N.D., III, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II , Public Defender, and Megan Olson , Assistant Public Defender, Bartow, for Appellant. Ashley Moody , Attorney General, Tallahassee, and Katherine Coombs Cline , Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II , Public Defender, and Megan Olson , Assistant Public Defender, Bartow, for Appellant.
Ashley Moody , Attorney General, Tallahassee, and Katherine Coombs Cline , Assistant Attorney General, Tampa, for Appellee.
SLEET, Judge.
N.D., III, challenges the trial court's disposition order finding him guilty of committing the delinquent act of burglary of an unoccupied conveyance, withholding adjudication, and placing him on juvenile probation for an indefinite period of time not to exceed his nineteenth birthday. Because the State's evidence was insufficient to support the determination of guilt, we reverse.
The allegations against N.D. stem from the burglary of a vehicle parked in an apartment complex. At trial, the vehicle's owner testified that she had parked the car in her apartment complex parking lot on the night in question and that on that night, she had left her credit card in or near the center console.
A second resident of the apartment complex testified that on the night of the incident, she was returning home from work at around 1 a.m. She further testified as follows:
A: As I was getting out of the car, as I was walking towards the building, I was observing a few teenagers walking — one of them was walking towards my directions [sic], the others just continued walking straight towards, like, the other end of the building.
Q. And could you describe what the three males looked like?
....
A. As far as facial recognition, no, I didn't — couldn't make out anyone's face.
Q. Could you describe what the — what the — the individuals that you saw, what they were wearing?
A. Hoodies and basketball shorts. I believe maybe sweats as well.
....
Q. And what genders did the — did they appear to be?
A. Appeared to be male.
Q. And what did you observe of the males in the hoodies wearing? I mean doing.
A. Basically, feeling on vehicles to see if the doors were unlocked.
Q. And did you observe the males — all three males doing that?
A. No, two of them. One of them was coming in my — towards me, towards my direction, because I turned around and walked back to my car.
Q. But did they appear that they were all together?
A. Yes.
The witness got back in her car and drove away but returned a few minutes later. At that time, she saw the juveniles near one of her neighbor's vehicles.
Q. And did you see three young males wearing hoodies in and around your neighbor's vehicle?
A. Yes, ma'am. Two of them were around the vehicle. Another was — the first one that was kind of, like, walking in my direction the first time I came in at that point was off, like, towards the sidewalk.
Q. And what did he appear to be doing?
A. Just standing there.
Q. But did — at that point, did they still appear to be together?
A. Yes.
Q. And the ones that you saw inside your neighbor's vehicle, can you describe what they were doing inside the vehicle?
A. It just appeared that they were in the trunk because the trunk was open and it looked like they were, like, rummaging through things and I saw things on the ground, like paper, the white box, plastic.
The witness called 911, and when officers arrived, they canvassed the parking lot on foot. They located three suspects who matched the description provided by the witness. Upon sight of the officers, the suspects ran, but they were apprehended on the third floor landing of a building within the apartment complex. N.D. was one of the individuals apprehended. The victim's credit card was discovered on the ground of the third-floor landing two to three feet away from where the three juveniles were apprehended.
The officers then brought the witness who had called 911 over to the building to identify the individuals they had apprehended. According to the arresting officer, "each of the juveniles was taken from the third [floor] landing individually in order for the witness to see them and attempt to make an identification." The witness testified that she was able to identify them "[b]y their clothing ... [j]ust by their clothing, and, like, their size, their build." But she could not recognize any faces because she "never really saw any of their faces." At no time did the witness identify which two individuals were rummaging through the victim's vehicle and which one was standing nearby.
At the disposition hearing, N.D. moved for judgment of dismissal, arguing that the State's evidence was insufficient to establish that he personally entered the victim's vehicle, personally possessed the victim's credit card, or acted as a principal in the commission of the burglary. The trial court denied the motion. Such was error.
"The standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case." C.S. v. State, 299 So.3d 514, 516 (Fla. 3d DCA 2020) (quoting A.P.R. v. State, 894 So.2d 282, 284 (Fla. 5th DCA 2005)). "While viewing the evidence in the light most favorable to the State, this court must determine `whether "a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt."'" Melton v. State, 317 So.3d 292, 297 (Fla. 2d DCA 2021) (quoting Bush v. State, 295 So.3d 179, 200 (Fla. 2020)).
Here, the delinquency petition alleged that N.D. had committed the delinquent act of burglary of a conveyance in violation of section 810.02, Florida Statutes (2019). As such, the State had to establish that N.D. (1) entered the conveyance (2) with an intent to commit a crime therein. See id. He also could be found "guilty as a principal if he was a participant in a common scheme to commit the crime." S.L.W. v. State, 288 So.3d 1262, 1264 (Fla. 2d DCA 2020). However, "[a]n aider and abettor `must have a conscious intent that the crime be done and must do some act or say some word which was intended to and d[id] incite, cause, encourage, assist[,] or advise another person to actually commit the crime.'" Id. (quoting A.D. v. State, 106 So.3d 67, 71 (Fla. 2d DCA 2013)). Of particular importance to the instant case, "[m]ere presence at the scene of the crime, knowledge of the crime, and even flight from the scene are insufficient to show that a defendant was an aider and abettor." Id. (quoting A.D., 106 So. 3d at 71).
Here, the State failed to establish which of the three individuals was N.D. The State presented no testimony as to whether he was one of the individuals seen pulling on car door handles and rummaging through the car's trunk or instead was the individual walking toward the witness and later standing nearby. As such, at best, the State established that N.D. stood nearby while two other juveniles pulled car handles and broke into a vehicle's trunk. Accordingly, we must analyze the evidence to determine whether it was sufficient to establish that the individual walking toward the witness and later standing on the sidewalk was acting as a principal. We conclude that it was not.
The witness's testimony, including her identification of N.D. as one of the three juveniles she saw that night, merely places him at the scene. And although the witness responded affirmatively when asked if it appeared to her that the three juveniles "were all together," the State failed to establish that N.D. performed one of the overt criminal acts witnessed or that he "d[id] some act or sa[id] some word which was intended to and d[id] incite, cause, encourage, assist[,] or advise" the other juveniles to commit the crime. S.L.W., 288 So. 3d at 1264 (quoting A.D., 106 So. 3d at 71). At best, the State proved N.D.'s "presence at the scene of the crime, knowledge of the crime, and ... flight from the scene." Id. (quoting A.D., 106 So. 3d at 71). Such evidence cannot support beyond a reasonable doubt the conclusion that N.D. was a principal to burglary. See id. Accordingly, it was error for the trial court to deny his motion for judgment of dismissal, and we must reverse the court's disposition order.
Reversed.
CASANUEVA and SMITH, JJ., Concur.