Opinion
No. 3D19-793
05-06-2020
Gregory WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Asad Ali, Assistant Attorney General, for appellee.
Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Asad Ali, Assistant Attorney General, for appellee.
Before EMAS, C.J., and LOGUE and MILLER, JJ.
EMAS, C.J. Following a jury trial, Gregory Williams was convicted of burglary of an unoccupied structure during a state of emergency. In this appeal, he contends the trial court erred in: (1) failing to grant a judgment of acquittal to reduce the burglary charge to trespass because there was no evidence of intent and the evidence showed that he was merely present inside the store; (2) giving the jury the standard instructions on stealthy entry and the law on principals; and (3) including on the verdict form the Category Two lesser-included offense of trespass of an occupied structure. We find no reversible error and, for the reasons that follow, we affirm the judgment and sentence.
FACTS AND BACKGROUND
On the morning of September 10, 2017, Hurricane Irma made landfall in the Florida Keys as a Category 4 hurricane, and began its journey northward through the Florida peninsula. At that time, Miami-Dade County was under a state of emergency declared by the Governor. Such a formal declaration included mandatory curfews across South Florida municipalities, including the City of Miami.
During this state of emergency, City of Miami Police Officer Jamailso Rios was in uniform and in a police vehicle, patrolling in the midst of a 24-hour shift to respond to calls for help in the aftermath of the hurricane's landfall. At approximately 6:30 p.m., a concerned citizen flagged down Officer Rios and reported that people were looting a nearby neighborhood grocery store. Earlier, the owner of the store had closed up and secured his grocery store in anticipation of Hurricane Irma. He had a roll-down shutter which covered the front door, and he engaged the lock located at the bottom of the shutter. When the store owner left the store, there was no one inside, and no one had permission to be inside the store.
Upon arrival, Officer Rios saw a man next to an SUV parked just outside the store. The vehicle's hatchback door was open, and the man was transferring store merchandise from a red bin into the SUV. When the man saw Officer Rios drive up, he dropped the red bin and took off running.
Officer Rios parked and exited his patrol vehicle, and approached the SUV, in which several individuals remained seated. Officer Rios removed the person in the driver's seat, ordering him to the ground at gunpoint. A second patrol officer arrived on the scene (Officer Matthew Williams), and assisted Officer Rios with the driver and passengers, freeing up Officer Rios to continue investigating inside the store.
As Officer Rios approached the front entrance of the store, he looked inside and observed five or six individuals, all of whom were engaged in looting the store, grabbing merchandise and putting items in the red bins he had seen earlier, or stuffing items inside their clothing. One of the individuals (a woman) tried to escape through the front door of the store, but Officer Rios pushed her back inside, closed the front door and held it shut while Officer Williams called for backup. The only people who remained inside the store were those individuals Officer Rios had observed looting inside the store.
When backup officers arrived, the police ordered everyone to come out of the store and surrender. Two of the people inside the store came out and surrendered as ordered, but others remained inside the store and did not come out voluntarily. Eventually, the police went into the store and searched aisle by aisle, locating three other people who failed or refused to comply with the earlier order. The defendant was one of those three people. At no time during this incident did police observe the defendant outside the store (until police removed him from inside the store). There was no other way in or out of the store other than through the front door.
Further investigation revealed that the lock at the bottom of the shutter covering the front door had been broken, and the front door itself had been pried open. The store owner testified, describing how the bulletproof, heavy-duty glass front door had been damaged and broken. He also testified that the office inside the store, as well as the in-store ATM, had been broken into. The store owner described the inside of the store as a "disaster." The entire place had been ransacked, shelves were emptied, and most everything had been taken; what remained were cases of beer and soda strewn all across the floor, along with several bags and red bins filled with merchandise, left in the middle of the aisles. Photos of the interior of the store, taken after the looting, were introduced into evidence. Photos of the shutter, the broken lock, and the damaged bulletproof front door were also introduced.
The defendant had no merchandise in his possession when police removed him from the store, but the testimony indicated that several minutes passed between the police ordering everyone to come out of the store and the point at which the police entered the store, located the defendant, and removed him from the store.
Notably, defense counsel, in opening statement and in closing argument, contended that the defendant was simply outside the store on the sidewalk when Officer Rios arrived at the scene and pushed the defendant into the store. Defense counsel contended that the defendant had not been inside the store until Rios pushed him in. This was the defense theory of the case. However, this defense theory was contradicted by the trial testimony of Officer Rios, who testified unequivocally that the defendant was already inside the store when Rios arrived at the scene and first looked inside. Officer Rios also testified that everyone inside the store was engaged in looting the store.
The defendant did not testify or present any defense witnesses. It appears the defense theory was loosely based upon the testimony of the second police officer (Officer Matthew Williams) who arrived on the scene. Officer Williams said he observed two people—a man and a woman—trying to escape from the store, and that Officer Rios prevented the two from escaping by pushing them back into the store and holding the front door closed. Officer Rios testified similarly, but said he prevented only a woman from escaping from the store, not a man and a woman. Two salient points worth noting: First, both Officer Rios and Officer Williams testified that the individual (or individuals) were already in the store and trying to escape when Officer Rios acted to prevent her/them from doing so. The officers were consistent in their testimony that nobody was simply standing on the sidewalk when they were pushed into the store by Officer Rios. Second, to the extent that this was the defendant's asserted hypothesis of innocence, once the State presented competent substantial evidence to contradict the defendant's hypothesis, it became the province of the jury to determine whether the evidence failed to exclude all reasonable hypotheses of innocence. State v. Law, 559 So. 2d 187, 188 (Fla. 1989).
The defendant was charged with burglary of an unoccupied structure during a state of emergency, in violation of section 810.02(4)(A), Florida Statutes, (2017). Additionally, the defendant and three of his co-defendants were charged in the same count of the Information, and the State alleged and relied upon section 777.011, Florida Statutes (2017), in charging and prosecuting the defendant as a principal in the first degree to the burglary.
Although simple burglary of an unoccupied structure is classified as a third-degree felony, it is reclassified to a second-degree felony if the burglary is committed within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the burglary is facilitated by "conditions arising from the emergency." § 810.02(3), Fla. Stat. (2017). The statute defines the phrase "conditions arising from the emergency" to mean "civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel." Id.
The defendant was tried jointly with co-defendant Joseph Bruton, who was also convicted and who has appealed his judgment and sentence in 3D19-804.
ANALYSIS AND DISCUSSION
Williams contends that the trial court (1) erred in denying his motion for judgment of acquittal to reduce the burglary to trespass because there was no evidence of intent and the evidence showed he was merely present inside the store; (2) erred in giving the jury the standard instructions on stealthy entry and the law on principals; and (3) committed fundamental error by including on the verdict form the Category Two lesser-included offense of trespass of an occupied structure. We write only to address the denial of the motion for judgment of acquittal and jury instruction on stealthy entry, finding no merit in the remaining issues raised on appeal.
As to the defendant's contention that the trial court committed fundamental error in charging the jury on the Category Two lesser offense of trespass of an occupied structure, we note that the Florida Supreme Court's recent decision in Knight v. State, 286 So. 3d 147, 151 (Fla. 2019) forecloses this issue, given that the defendant failed to object to this lesser included offense, and the evidence at trial was sufficient to support the conviction for burglary as charged.
At trial, Williams moved for a judgment of acquittal of the burglary charge, asserting the State had proven merely a trespass because there was no evidence that Williams intended to commit a crime while inside the store or that he entered stealthily. In reviewing a trial court's ruling on a motion for judgment of acquittal, we apply the de novo standard of review. Pagan v. State, 830 So. 2d 792, 804 (Fla. 2002) ; Giralt v. State, 935 So. 2d 599 (Fla. 3d DCA 2006). It should be noted, however, that a trial court
Williams renewed this issue in his post-trial motion pursuant to Florida Rule of Criminal Procedure 3.620, which provides:
When the offense is divided into degrees or necessarily includes lesser offenses and the court, on a motion for new trial, is of the opinion that the evidence does not sustain the verdict but is sufficient to sustain a finding of guilt of a lesser degree or of a lesser offense necessarily included in the one charged, the court shall not grant a new trial but shall find or adjudge the defendant guilty of the lesser degree or lesser offense necessarily included in the charge, unless a new trial is granted by reason of some other prejudicial error.
should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof of facts from which the ultimate fact is sought to be established, or where there is room for such differences as to the inference which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge. The credibility and probative force of conflicting testimony should not be determined on a motion for judgment of acquittal.
Darling v. State, 808 So. 2d 145, 155 (Fla. 2002) (quoting Lynch v. State, 293 So. 2d 44, 45 (Fla.1974) ). In order to prove burglary, the State was required to establish that Williams entered a structure that was not open to the public (or to which he was not licensed or invited to enter at the time) with the intent to commit an offense therein. See § 810.02(1)(b) 1., Fla. Stat. (2019). It is important to note that it was not necessary for the State to prove that Williams actually committed an offense in the store, but only that he intended to commit an offense. See e.g., McCloud v. State, 208 So. 3d 668, 686 (Fla. 2016) (holding that "in demonstrating burglary, it suffices merely that the defendant harbored a criminal ‘intent to commit an offense’ within a ... structure—regardless of whether the...offense was actually completed"); Von Young v. State, 266 So. 3d 1225, 1227 (Fla. 1st DCA 2019) ; T.S. v. State, 675 So. 2d 196, 198 (Fla. 4th DCA 1996) (observing: "The elements of assistance of the perpetrator and intent may be proved by a combination of surrounding circumstances from which a trier of fact can reasonably infer defendant's guilt") (quoting K.O. v. State, 673 So. 2d 47 (Fla. 4th DCA 1995) ).
Moreover, the intent with which an act is taken is generally not capable of direct proof, and is most often proven indirectly, by circumstantial evidence. See, e.g., State v. Waters, 436 So. 2d 66 (Fla. 1983) ; R.A. v. State, 400 So. 2d 1059, 1060 (Fla. 3d DCA 1981) (noting: "Since intent may be shown by circumstantial evidence, the fact that appellant was found inside the principal's office of the school going through a desk was more than sufficient to sustain the conclusion that appellant intended to commit theft within the structure") (internal citations omitted). Indeed, the standard burglary jury instruction provides:
Proof of intent.
The intent with which an act is done is an operation of the mind and, therefore, is not always capable of direct and positive proof. It may be established by circumstantial evidence like any other fact in a case.
Even though an unlawful [entering] [remaining in] a [structure] [conveyance] is proved, if the evidence does not establish that it was done with the intent to commit [ (the crime alleged) ] [an offense other than burglary or trespass], the defendant must be found not guilty of burglary.
Fla. Std. J. Inst. (Crim.) 13.1
We find that there was competent substantial evidence to support the jury's verdict, and the trial court properly denied Williams’ motion for judgment of acquittal. To recap, the evidence in this case included the following:
• The store and the entire county were under a state of emergency declared by the Governor because of Hurricane Irma, which had just made landfall in the Florida Keys;
• As provided by statute, conditions arising from such a declared state of emergency include "civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders;"
• The store was closed, shuttered and without power;
• The conditions outside were dangerous, and police dispatchers were being flooded with calls;
• The lock holding the hurricane shutter in place on the front door had been broken and the heavy, bulletproof-glass front door was pried open;
• Everybody inside the store, which included Williams, was actively engaged in looting;
• The entire store had been ransacked, the shelves had been emptied and nearly
all of the merchandise was gone or left in red bins or bags strewn about the floor;
• Williams was inside the store at all relevant times and failed or refused to come out when ordered to do so by police;
• Contrary to defense counsel's statements in opening and closing argument, Williams was not outside the store when police arrived, and police did not push Williams into the store;
• Police had to go into the store to locate and remove Williams from the premises;
• Sufficient time passed, between the moment the police announced their presence (ordering everyone out) and the time police went inside the store to remove Williams, to permit him to abandon any merchandise in his possession.
The evidence summarized above, and the reasonable inferences flowing therefrom, were sufficient to establish the requisite intent for the crime of burglary.
Williams does not challenge the fact that he entered the store while it was closed, and he admits that there were other people inside looting the store at the time police arrived on scene.
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Williams also argues that the instruction for stealthy entry should not have been given to the jury because there was no evidence that he entered the store in a stealthy manner. We generally review a trial court's ruling on requested jury instructions for an abuse of discretion. Card v. State, 803 So. 2d 613, 624 (Fla. 2001).
With regard to stealthy entry, the standard jury instruction for burglary contains the following language, which is to be given by the trial court if applicable and which was given in this case:
You may infer that Gregory Williams had the intent to commit a crime inside a structure if the entering of the structure was done stealthily and without the consent of the owner or occupant.
Fla. St. Jury Instr. (Crim.) 13.1
Florida courts have previously noted that "stealth" "normally implies activity that is surreptitious, furtive, or sly," J.A.S. v. State, 952 So. 2d 638, 640 (Fla. 2d DCA 2007), or when the actions were taken in in a furtive or clandestine manner to avoid discovery. See, e.g., M.S. v. State, 774 So. 2d 777, 778 (Fla. 3d DCA 2000) (holding that entry was "stealthy" where there was evidence the defendant ran from the back of an apartment late at night); Jackson v. State, 703 So. 2d 515 (Fla. 3d DCA 1997) (holding that the "jury could have reasonably concluded that [defendant's] unauthorized and unannounced entry into the victim's house coupled with his immediate flight from the house, without explanation, when seen by the victim constituted ‘stealthy entry’ "); White v. State, 45 Fla. L. Weekly D63 at *2, ––– So.3d ––––, ––––, 2020 WL 34540 (Fla. 2d DCA January 3, 2020) (observing: "A defendant acts stealthily when his actions are done in a furtive or clandestine manner to avoid discovery"). See also Irvin v. State, 590 So. 2d 9, 10 (Fla. 3d DCA 1991) (noting Black's Law Dictionary 1267 (5th ed. 1979) defines "stealth" as: "[1] The quality or condition of being secret or furtive. [2] The act of stealing when the victim is unaware of the theft is stealing by stealth. [3] Any secret, sly or clandestine act to avoid discovery and to gain entrance into or to remain within residence of another without permission ..."); Black's Law Dictionary 1548 (9th ed. 2005) (defining "stealth" as: "Surreptitiousness; furtive slyness").
And as the Florida Supreme Court observed in Baker v. State, 636 So. 2d 1342, 1344 (Fla. 1994) :
Stealth is not an element of burglary. Stealthy entry, together with the absence of owner or occupant consent, is an evidentiary tool with which to establish prima facie proof of intent to commit an offense. Nonetheless, even with a stealthy entry, the jury must be convinced beyond a reasonable doubt and in light of all the surrounding facts and circumstances that the accused had a fully-formed, conscious intent to commit an offense. As with any other fact in a case, this intent may be established by circumstantial evidence. Stealthy entry is simply one such circumstance.
Under the facts of this case, we hold that the trial court did not abuse its discretion in instructing the jury on stealthy entry and in permitting the jury to decide whether these individuals acted stealthily in entering into a closed and shuttered store in the early evening, during a county-wide emergency brought on by a Category 4 hurricane, when consequently few people (and first responders) were out on the street, curfew orders had been issued, and electrical power was out in many areas across Miami-Dade, including the store that was burglarized. See Daughtry v. State, 804 So. 2d 426, 428 (Fla. 4th DCA 2001) (observing: "The objectionable instruction was only a part of the charge instructing the jury that the question of intent is subjective and impossible to prove directly. The passage about stealth is primarily an illustration of the truism that intent will be proved, if at all, by indirection and circumstances. Thus, the instruction as given essentially told the jury that proof of stealthy entry may justify a finding that the unlawful entry was undertaken with a purpose to commit another felony within the premises. It did not tell the jury that defendant should be considered guilty if he entered stealthily.")
Accordingly, we affirm the conviction and sentence for burglary of an unoccupied structure during a state of emergency.
Affirmed.