Opinion
No. 98-1209.
Opinion filed July 28, 1999.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Robert A. Hawley, Judge; L.T. No. 97-896A.
Richard L. Jorandby, Public Defender, and Steven H. Malone, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Robert R. Wheeler, Assistant Attorney General, West Palm Beach, for appellee.
Romance Franklin appeals his convictions and sentences for robbery with a deadly weapon, armed burglary of an occupied structure, and resisting an officer without violence. Appellant argues seven points on appeal; only two merit discussion. We affirm his convictions and sentences for robbery with a deadly weapon and for resisting an officer without violence. We reverse his conviction and sentence for armed burglary of an occupied structure.
On August 29, 1997, two armed masked men robbed a 7-Eleven. The robbery was captured on the store's video camera and witnessed by two employees. After the two men left, the employees called the police. At 1:41 a.m., the police issued a BOLO (be on the lookout) report. The BOLO described "two black male suspects wearing masks and armed with long guns, possibly a shotgun, [who] had just robbed the [7-Eleven] and ran south from the front of the building." At approximately 1:42 a.m., Officer Hardman responded to the call and saw appellant and another black male standing near a bookstore, a block north of the 7-Eleven. Officer Hardman pulled up to talk to the men, and they both walked across the street. He pulled into the parking lot, rolled down his window, and said, "Hey, can you guys stop for a minute, I'd like to speak to you." Both men continued walking, not acknowledging the officer's comments. Officer Hardman continued rolling forward and said, "Excuse me, I want to talk to you for a minute, can you stop, please." Both men continued walking. Officer Hardman then opened his car door to get out as the two were coming up the sidewalk towards him and said, "Hey, I need to talk to you, can you stop please." At that point, appellant's companion ran and appellant followed. Officer Hardman pursued appellant, following him to an apartment. After asking appellant to step outside, he was handcuffed, arrested, and Mirandized.
Thereafter, appellant waived his Miranda rights and told the police what had happened. He led the police to the location of the clothing shown on the video tape and the money from the robbery. Appellant also provided a taped statement where he identified himself and the other man as having committed the robbery, described the masks they wore, the guns they carried, and admitted that he took two cigars and other items from the store as he left. One cigar, fitting the description of the cigars taken from the store, was later found in the apartment where appellant was apprehended.
Appellant contends that the trial court erred in denying his motion for judgment of acquittal on the charges of armed burglary and resisting an officer without violence. He argues that he could not commit a burglary when the 7-Eleven is open to the public twenty-four hours a day, seven days a week, and that the evidence was insufficient to infer that the employees withdrew their consent for him to be on the premises.
Section 810.02(1), Florida Statutes (1997), defines "burglary" as "entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain." Since the store was "at the time open to the public," appellant had consent to enter the 7-Eleven. Appellant argues that the state presented no evidence that the employees withdrew their consent for him to remain on the premises. Here, a store employee witnessed appellant and another man enter the store. The employee told his co-worker that they were about to be robbed. When appellant and the other man approached the employees, the same employee repeatedly told his co-worker to give them the money, because that was what they wanted. The co-worker gave the men the money, in expectation that they would leave.
The state argues that "the employees of the convenience store implicitly withdrew their consent to Appellant remaining on the premises when they became aware that he entered the store for purposes of committing a crime." In support of this contention, the state cites Garvin v. State, 685 So.2d 17 (Fla. 3d DCA 1996). In Garvin, the third district affirmed a defendant's conviction and sentence for a burglary of a restaurant open to the public.
We find it sensible that no victim consents to a person's remaining in the premises for the perpetrator's purpose of committing a crime against that victim. Therefore the jury could have concluded that once the restaurant manager became aware that the assailants were committing a crime, the "remaining in" was no longer consensual. Indeed, even if further evidence of withdrawal of consent was required, the manager's leaving the building to telephone for assistance and the resulting kidnapping [sic] were supremely sufficient to show that the consent to remain had been withdrawn.
Id. at 18-19.
In Miller v. State, 713 So.2d 1008 (Fla. 1998), the state made a similar argument:
Recall the evidence. This defendant [and] Samuel Fagin didn't go into that store to buy any goods. They went in there for one reason and that's to commit crimes, and Mr. Jung told you I didn't invite anybody in to my store to commit crimes. That just stands to reason. My store is open to the public to come in and want to buy something, not to take my money, not to shoot me, not to shoot my friend and security guard, James Wallace.
Id. at 1010. The Supreme Court held that the evidence presented was insufficient to support the state's argument that consent to remain in the premises had been withdrawn and reversed Miller's conviction for burglary.
It is improbable that there would ever be a victim who gave an assailant permission to come in, pull guns on the victim, shoot the victim, and take the victim's money. To allow a conviction of burglary based on the facts in this case would erode the consent section of the statute to a point where it was surplusage: every time there was a crime in a structure open to the public committed with the requisite intent upon an aware victim, the perpetrator would automatically be guilty of burglary. This is not an appropriate construction of the statute.
Here, the argument was geared towards showing that Miller did not have consent to enter the grocery store to commit a crime. Clearly the store was open, so Miller entered the store legally. There was no attempt to show — even through circumstantial evidence — that although Miller entered the store legally, consent was withdrawn. There must be some evidence the jury can rationally rely on to infer that consent was withdrawn besides the fact that a crime occurred. . . .
Id. at 1010-11. Under Miller, the evidence must show more than an implicit or subjective state of mind on the part of the victim to prove that consent to remain on the premises has been withdrawn. Consent may be "withdrawn explicitly or by the victim's actions,"McCoy v. State, 723 So.2d 869, 870 (Fla. 1st DCA 1998), but it must be based on more than "the fact that a crime occurred." Miller, 713 So.2d at 1011; see also Marquez v. State, 721 So.2d 1206 (Fla. 3d DCA 1998). Here, the statements and actions of the employees were insufficient for a jury to infer that consent to remain on the premises had been withdrawn. Therefore, appellant's conviction and sentence for armed burglary of an occupied structure must be reversed.
Appellant next contends that the trial court erred in failing to grant his motion for judgment of acquittal on the charge of resisting an officer without violence. He argues that Officer Hardman did not order him to stop but merely asked to speak to him, and that Officer Hardman lacked sufficient cause to stop him. Both arguments lack merit.
In Harris v. State, 647 So.2d 206 (Fla. 1st DCA 1994), the first district noted that the crime of resisting an officer without violence cannot take place if either the officer "lacked an articulable well founded suspicion of criminal activity to justify the attempt to detain [the appellant]or if [the appellant] had no reason to believe that he was being detained." Id. at 208 (emphasis in original). Officer Hardman asked appellant and his companion to "stop" three different times, the third after stopping his patrol car in front of the two men as they were walking towards him. We hold that Officer Hardman's requests were sufficient to inform appellant that he wanted him to stop for questioning and his refusal to stop constituted resisting an officer without violence. See M.C. v. State, 450 So.2d 336 (Fla. 5th DCA 1984).
We also reject appellant's argument that Officer Hardman lacked sufficient cause to stop and question appellant about the 7-Eleven robbery. In State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978), this court listed several factors to consider whether an officer had sufficient cause to stop and temporarily detain an individual. These factors include: "the time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer's knowledge." Id. at 1247. Here, the robbery occurred late at night, at approximately 1:30 a.m. The BOLO was issued at 1:41 a.m. It described two black males running south from the front of the 7-Eleven. Officer Hardman observed appellant and another man one block north of the robbery at 1:42 a.m. Both men fit the general description of the BOLO.
The fact that the suspects fled in a southerly direction does not preclude them from changing direction so as to place them one block north of the store.
"To justify temporary detention, only `founded suspicion' in the mind of the detaining officer is required. . . . A `founded suspicion' is suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer's knowledge."Stevens, 354 So.2d at 1247. Based on the time of the day, the BOLO description and appellant's close proximity to the robbery within minutes of the BOLO report, Officer Hardman had the authority to temporarily detain appellant and question him about the robbery. Id.; see also Fla. Stat. § 901.151(2) (1997).
Accordingly, we affirm appellant's convictions and sentences for robbery with a deadly weapon and resisting an officer without violence. We reverse his conviction and sentence for armed burglary of an occupied structure.
AFFIRMED in part, REVERSED in part.
STEVENSON and HAZOURI, JJ., concur.
NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.