Opinion
Case No. 3D03-2255.
Opinion filed May 26, 2004.
An Appeal from the Circuit Court for Miami-Dade County, Lester Langer, Judge. Lower Tribunal No. 03-2262.
Bennett H. Brummer, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
Before RAMIREZ and SHEPHERD, JJ., and BARKDULL, THOMAS H., Jr., Senior Judge.
N.H. appeals an adjudicatory order in which the trial court withheld adjudication of delinquency and gave a judicial warning. We reverse the adjudicatory order because there is no evidence to support the underlying charge of resisting arrest without violence.
Several police officers testified at N.H.'s bench trial. The officers were on bike patrol near N.H.'s school during the evening hours when they heard a "yell . . . like a loud voice" coming from a female in the school's parking lot. The officers then observed N.H. run from the school's parking lot. When N.H. saw the officers, he changed his direction and bolted across a street through traffic. The officers pursued N.H. and instructed him to stop. N.H. initially refused to stop and when he did, he began to use profane language at the officers. The officers instructed N.H. to sit down on the curb, but N.H. again refused. N.H. looked agitated, irritated, and hostile. N.H. also refused to answer some of the officers' questions, but he eventually told the officers where he was coming from and going to. When one of the officers told N.H. that he was under arrest, a struggle ensued. The officers thereafter handcuffed N.H. The trial court denied N.H.'s subsequent motion for judgment of acquittal.
A motion for judgment of acquittal challenges the legal sufficiency of the evidence. See State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999). If the State presents competent evidence to establish each element of the crime, a motion of judgment of acquittal should be denied. Id. The court should not grant a motion for judgment of acquittal unless the evidence, when viewed in a light most favorable to the State, fails to establish a prima facie case of guilt. See Dupree v. State, 705 So.2d 90, 93 (Fla. 4th DCA 1998).
To support a conviction for resisting an officer without violence under section 843.02, Florida Statutes (2002), the State must prove that: (1) the officer was engaged in the lawful execution of a legal duty, and (2) that the actions of the defendant constituted obstruction or resistance of that lawful duty. See V.L. v. State, 790 So.2d 1140, 1142 (Fla. 5th DCA 2001). An essential element of the offense of resisting an officer without violence is that there must be a lawful arrest. See V.L., 790 So.2d at 1143. See also Guitterrez v. State, 837 So.2d 1095, 1096 (Fla. 4th DCA 2003). "If an arrest is not lawful, then a defendant cannot be guilty of resisting it." See In Interest of T.M.M., 560 So.2d 805, 807 (Fla. 4th DCA 1990). Florida law remains that a person may lawfully resist an illegal arrest without the use of force or violence. See Mayhue v. State, 659 So.2d 417, 419 (Fla. 2d DCA 1995).
We agree with the State that the officers had the reasonable suspicion necessary to justify their investigatory stop under the circumstances of this case. The officers first heard a scream at nightime and saw N.H. run from the area from which where the scream originated. The officers then saw N.H. look at them and bolt across a street in an opposite direction through traffic after which N.H. refused to stop when the officers ordered him to do so. This alone provided the officers a reasonable basis to believe that N.H. may have been involved in some criminal activity for which the officers had a legal duty to investigate, and that N.H.'s behavior represented an attempt to avoid police contact. See State v. Davis, 849 So.2d 398, 400 (Fla. 4th DCA 2003) (stating that a "police officer may . . . stop a person for the purpose of investigating possible criminal behavior, even though there is no probable cause for an arrest, as long as the officer has reasonable suspicion that the person is engaged in criminal activity.").
But, while the officers had the legal authority to investigate, the evidence does not show that the officers had probable cause to effectuate an arrest. At the time of N.H.'s arrest, the evidence shows that N.H. had obeyed the officers' command to stop, simply refused to sit down on the side of the curb, and had already responded to some of the officers' questions. The State offered no other evidence to support the officers' conclusion that N.H. resisted arrest or that they had probable cause to effectuate the arrest of N.H. We thus find that N.H.'s arrest was unlawful, and therefore conclude that the State failed to establish that N.H. resisted the officers without violence.
Reversed.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.