Opinion
Case No. 96-0268
Opinion filed April 2, 1997 Rehearing Denied April 30, 1997.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Richard D. Eade, Judge; L.T. Case No. 93-9991 CF10B.
Richard L. Jorandby, Public Defender, and Gary Caldwell and Marcy K. Allen, Assistant Public Defenders, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Carlos Jones, appeals his conviction for strong arm robbery and resulting habitual violent felony offender sentence of thirty years incarceration. We affirm.
The victim, Mary Ellen Butcher, visited the American Bank of Hollywood on March 25, 1993, and withdrew approximately $1,500. Unknown to her, she caught the attention of Joseph Cole, who was standing in line next to her and saw her receive this money. Meanwhile, Appellant was across the street in a convenience store. Cole ran out of the bank and met up with Appellant, Tammy Cowens and Keith Butcher at their car. Cole told the group that he had seen a woman with "all this money."
Cole said that "she got it and I want her."
The quartet waited in the car for the victim to exit the bank. Tammy Cowens was driving, Joseph Cole sat in the front passenger seat, and Keith Butcher and Appellant sat in the rear seats. When Mrs. Butcher exited the bank and got into her car, the group followed her in their vehicle. When Mrs. Butcher arrived at her home and exited her car, they stopped and let Cole out from the front passenger seat. They drove to the corner to avoid detection while Cole ran toward her, pinned her up against her car, grabbed her purse from her shoulder, breaking its strap, and pushed Mrs. Butcher to the ground. Cole then quickly returned to his car, where the other three had watched and waited with the engine running and the passenger door open. The group then sped off and later divided the money evenly among themselves, with Appellant taking $350-$400 of the stolen $1,520. Appellant admitted, in his statement to the police, that he was a participant in the crime. In that statement, he repeatedly referred to the actors using the pronoun "we."
The record reflects much more than mere presence at the scene and a generalized knowledge. Rather, there is prima facie evidence of Appellant's participation in the crime. See Staten v. State, 519 So.2d 622 (Fla. 1988); T.S. v. State, 675 So.2d 196 (Fla. 4th DCA 1996); Voto v. State, 509 So.2d 1291 (Fla. 4th DCA 1987).See also Ferrell v. State, 686 So.2d 1324 (Fla. 1996); State v. Law, 559 So.2d 187 (Fla. 1989).
Appellant raises several challenges to his conviction and sentence, none of which we find to have merit. Regarding his claim that the evidence was insufficient to sustain his conviction for aiding and abetting the robbery, Appellant's own statement to police clearly reveals that he was a knowing participant in the crime. Accordingly, we affirm both the conviction and the sentence.
GLICKSTEIN and STONE, JJ., concur.
STEVENSON, J., dissents with opinion.
I respectfully dissent. I would reverse appellant's conviction for robbery and direct the trial court to enter a conviction for the lesser included offense of petit theft.
Although a passenger's lingering presence in the backseat of a car with knowledge that one of its occupants intends to jump out and commit a purse snatching ought to be a crime, the law says that it is not. Presence, without more, does not equate to culpable assistance with, or encouragement of, a criminal act. See Evans v. State, 643 So.2d 1204 (Fla. 1st DCA 1994), rev. denied, 652 So.2d 818 (Fla. 1995); C.P.P. v. State, 479 So.2d 858 (Fla. 1st DCA 1985). Appellant may have done or said something to further the robbery — but the record does not show it.
On the other hand, the evidence was sufficient to support a conviction for the crime of theft. Appellant knew that the victim's money was stolen, but he accepted a share of it anyway. See State v. Houck, 374 So.2d 86 (Fla. 4th DCA 1979) (the knowing and intentional possession of stolen property falls within theft statute). Accordingly, I would reverse appellant's conviction for the crime of robbery and direct the trial court to enter judgment for petit theft, a category 1, necessarily included lesser offense of the crime charged. See § 924.34, Fla. Stat. (1993); Fla. Std. Jury Instr. (Crim.) p. 295 (Schedule of Lesser Included Offenses).