DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
January Term 2005
STATE OF FLORIDA
[April 6, 2005]
Following a jury trial, appellant, Jorge Garcia, was found guilty of
burglary of a dwelling, grand theft, and trespass of a conveyance. He
appeals, contending that the trial court erred in denying his motions for
judgment of acquittal on the burglary and theft counts. We agree and
The evidence presented at trial shows that on December 20, 2002,
Frank Caltabiano left his residence on Andrews Avenue in Broward
County to deliver Christmas presents to some friends. He returned home
approximately ten minutes later to find a red Pontiac van parked on his
lawn, backed up to his front door. As soon as Caltabiano pulled up, a
woman behind the steering wheel of the van began frantically honking
the horn. Caltabiano then saw a Hispanic man with sideburns come out
of his house and dive head-first into the front passenger side door of the
van. This man, who was the only person Caltabiano saw come out of the
house, was wearing bluish pants.
After the man dove into the van, someone inside the van shut the side
door. Immediately, the woman behind the wheel backed up and drove off
north on Andrews Avenue.
Because of the van’s tinted windows,
Caltabiano could not tell if there were more than two people in the van,
but he could see a silhouette of someone whom he assumed to be the
person who shut the door before the van sped off.
Caltabiano went inside his house and discovered that his television,
VCR/DVD, and a box of chocolates were missing. The value of the stolen
property exceeded six hundred dollars. The police responded rapidly to
the victim’s residence and issued a BOLO for the van.
Within ten minutes of receiving the BOLO, Deputy Turpin stopped a
van matching the BOLO description and containing the victim’s property.
Two females and two males were in the van.
When the officer
approached the van, a Hispanic female, Leticie Mendez, was driving. A
Hispanic male jumped out of the front seat and attempted to run away.
He was identified as Hector Rodriguez. Appellant and another female,
Olga Rodriguez, got out of the back of the van.
The van had three rows of seats. Deputy Turpin testified that the
VCR/DVD and box of chocolates were found in the front seat between
the driver and passenger seats and the television was on the floor
between the front and middle seats of the van. Another officer said that
he was not certain but he recalled the property being in the back of the
van. Everyone in the van was arrested and photographed. Hector
Rodriguez had sideburns and was wearing a black shirt and blue jeans.
The van was stolen. While inspecting the van, Deputy Paparella
noticed that the keys were in the ignition. He also saw that the steering
column was broken and facing the driver’s side door. He testified that he
did not know if a person in the back of the van could see that the
steering column was broken. It was later determined that one print lifted
from the mirror of the van matched the female driver, Mendez.
Several officers came to the victim’s residence to investigate the
burglary. They lifted latent prints from several areas of the home, but
none of them matched any of the suspects. Deputy Acosta drove the
victim to the location where the van had been stopped to identify the van
and his property. At that time, all of the subjects had been removed
from the van and taken into custody.
Appellant was charged, along with Hector Rodriguez, Leticie Mendez,
and Olga Rodriguez, with burglary of a dwelling and grand theft. Only
Mendez was charged with theft of the van. However, appellant, Hector,
and Olga were charged with trespass to a conveyance.
Appellant was tried separately. The victim was unable to positively
identify the man who ran out of his house and dove into the van because
this happened in “a matter of seconds.” He did, however, describe the
person as a Hispanic male with sideburns, weighing approximately 160
pounds, and wearing bluish pants. When asked to look at the appellant
in court, the victim could say only that appellant was the same size and
similar in appearance as the person he saw, but that appellant looked
“very different” and his hair was different.
At the close of the state’s evidence, appellant moved for a judgment of
acquittal. He argued that there was no evidence that he entered the
dwelling and stole the victim’s property or that he aided or abetted the
perpetrator in committing the burglary and theft. He pointed out that
the photographs taken at the time of arrest showed that only Rodriguez
had sideburns and that Rodriguez was wearing blue jeans. He argued
that no evidence pointed to him as the person who shut the side door of
the van before it sped off. He also argued that because he was one of
several passengers in the van, no inference could be made that he was
the person who stole the items or burglarized the house. The court
denied the motion for judgment of acquittal.
Because appellant was never identified as the person who actually
committed the burglary and theft, the state necessarily argues that his
conviction should be affirmed upon the theory that appellant aided and
abetted in the crimes and thus is guilty as a principal. To be convicted
as a principal, the defendant must have intended that the crimes be
committed and have done some act to assist another in committing the
crimes. See Staten v. State , 519 So. 2d 622, 624 (Fla. 1988). Here, there
is no direct evidence that appellant intended that the burglary and theft
be committed or that he did some act to assist in committing the crimes.
Thus, the state must rely upon circumstantial evidence as proof of
appellant’s intent and participation.
When the state relies on
circumstantial evidence to show guilt by aiding and abetting, such
evidence must meet the test for circumstantial evidence, i.e., it must be
both consistent with guilt and inconsistent
with any reasonable
hypothesis of innocence. See Davis v. State, 436 So. 2d 196 (Fla. 4th
DCA 1983). As we recognized in Davis, evidence which furnishes nothing
more than a suspicion that the defendant committed the crime is not
sufficient to uphold a conviction. See id. at 198 (citing Davis v. State , 90
So. 2d 629, 631-32 (Fla. 1956)).
“A motion for judgment of acquittal should be granted in a
circumstantial evidence case if the state fails to present evidence from
which the jury can exclude every reasonable hypotheses except that of
guilt.” State v. Law, 559 So. 2d 187, 188 (Fla. 1989). Although “[t]he
state is not required to ‘rebut conclusively every possible variation’ of
events which could be inferred from the evidence,” it must “introduce
competent evidence which is inconsistent with the defendant’s theory of
events.” Id. at 189 (quoting State v. Allen, 335 So. 2d 823, 826 (Fla.
Here, the state failed to introduce competent evidence which is
inconsistent with the defendant’s theory of innocence. The state argues
that appellant’s presence in the van, along with his proximity to the
stolen property found in the van, constitutes sufficient proof of
appellant’s intent to participate in the burglary. However, this evidence,
standing alone, does not preclude every reasonable inference that
appellant did not intend to participate in these crimes. Mere 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
Staten, 519 So. 2d at 624; see also Lockett v. State, 262 So. 2d 253 (Fla.
4th DCA 1972) (holding that fact that the defendant was observed in the
driver’s seat of an automobile parked outside the burglarized residence
while stolen property was being loaded into vehicle was insufficient to
convict defendant on basis of aiding and abetting); Davis, 426 So. 2d at
199 (noting that evidence was insufficient where the sole proof of
defendant’s intent to participate in the robbery of a store was his earlier
presence in the store with the perpetrators); Williams v. State , 206 So.
2d 446 (Fla. 4th DCA 1968) (holding that circumstantial evidence
showing that the defendant was a passenger, along with three
codefendants, in an automobile that stopped twice outside a bar, and
that after the second stop, a co-defendant got out, entered the bar, and
fired a shotgun at the victim, and that the defendant had not seen a gun
in the co-defendant’s possession before the shooting, did not exclude
reasonable hypothesis that the defendant did not plan to assist the codefendant in the attempted robbery); Cockett v. State , 507 So. 2d 1217
(Fla. 4th DCA 1987) (reversing trafficking in cocaine conviction where
proof that defendant was a passenger in drug dealer’s car showed merely
that the defendant was along for the ride); A.Y.G. v. State , 414 So. 2d
1158 (Fla. 3d DCA 1982) (holding that evidence that the defendant was
present at the scene of the crime and drove the “getaway” car at the
request of the perpetrator of the burglary does not exclude the
reasonable inference that the defendant had no knowledge of the crime
until after it occurred); Gains v. State , 417 So. 2d 719 (Fla. 1st DCA
1982) (reversing conviction of defendant for aiding and abetting an armed
robbery because the circumstantial evidence merely placed him in an
automobile outside the scene of the robbery); Fox v. State , 469 So. 2d
800 (Fla. 1st DCA 1985) (holding that evidence that defendant was
merely present at the scene of an armed robbery of a convenience store
was insufficient to establish the requisite knowledge and intent to
participate in its commission); Evans v. State , 643 So. 2d 1204 (Fla. 1st
DCA 1994) (holding that the defendant’s presence as a passenger in a
truck when someone in the truck shot into store windows is insufficient
to establish the defendant’s guilt on an aider and abettor theory).
Citing T.S.R. v. State , 596 So. 2d 766, 767 (Fla. 5th DCA 1992), the
state argues that when considering the sufficiency of the evidence to
submit the case to the jury, the trial court had to consider all of the
circumstantial evidence, “including the inference [of burglary] from the
possession of recently stolen property.” According to the state, while
there may be no direct physical evidence linking appellant to the crimes,
appellant’s “unexplained possession of recently stolen property is not
only sufficient to support a theft conviction, but when a burglary
necessarily occurs as an adjunct, the inference of guilt from the
unexplained possession of the recently stolen goods also supports a
conviction for the burglary.” Id. Proof of possession of property recently
stolen, unless satisfactorily explained, does give rise to an inference of
guilt of theft and burglary. See Francis v. State , 808 So. 2d 110 (Fla.
2001). This inference applies, however, only when the state has proven
that the defendant actually possessed the property. See Chamberland v.
State, 429 So. 2d 842 (Fla. 4th DCA 1983). As we explained in
To take advantage of this inference, the state first must prove that
appellant possessed the property.
Possession constitutes a conscious and substantial possession, as
distinguished from a mere involuntary or superficial possession.
Reynolds v. State , 92 Fla. 1038, 111 So. 285 (1927). It must be
personal; that is, involve a distinct and conscious assertion of
possession by the accused, and it must be exclusive. Walton v. State ,
404 So. 2d 776 (Fla. 1st DCA 1981), petition for review denied, 412 So.
2d 471 (Fla. 1982).
429 So. 2d at 843.
Here, the only evidence of appellant’s possession of the victim’s recently
stolen property was his presence, along with three other people, in the
van containing the stolen items. Testimony as to location of the items in
the van was conflicting. Yet, even assuming that the property was in the
back of the van where appellant was seated, we note that no evidence
was presented that appellant had exclusive possession of the stolen
property or the ability to exercise any dominion and control over it.
Thus, proof that appellant was in the van with the recently stolen
property, under these circumstances, is insufficient evidence to support
the inference the he committed the burglary and theft. See Walton v.
State, 404 So. 2d 776 (Fla. 1st DCA 1981) (holding that the state could
not rely upon the inference of guilty knowledge to support a conviction
for possession of stolen property with evidence of the presence of stolen
property in an apartment shared by the defendant and three roommates
as it did not demonstrate exclusive possession).
For the foregoing reasons, we conclude that the trial court erred in
denying appellant’s motion for judgment of acquittal on the burglary and
theft counts and remand this cause for appellant to be discharged. In
light of this ruling, we need not address appellant’s other point on appeal
that the court erroneously denied a request for an instruction on
FARMER, C.J., and SHAHOOD, J., concur.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Paul L. Backman, Judge; L.T. Case No. 02-021301 CF
Carey Haughwout, Public Defender, and Louis G. Carres, Assistant
Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR