The case of Remor v. State, 991 So. 2d 957 (Fla. 4th DCA 2008) involved a prosecution for attempted burglary of a structure and possession of burglary tools, together with resisting arrest without violence.
The defendant was in Indian River County at the time of a hurricane and was found walking at night with another individual during curfew hours. When the police attempted to stop the defendant he ran away and was later caught. The defendant was wearing dark clothing, gloves, a shirt wrapped around his neck, and a miner's light. He had no tools on his person.
The defendant's car was found to contain an empty black drill case, duct tape and a pair of pliers; and about five feet from the car was a drill case wrapper. No drill was ever found.
The police then took the defendants to the nearby shopping mall and noticed two wooden boards missing from the window of Sound Frontier, a store in the mall. The boards were on the ground and still had the screws in them. There was no evidence of shattered glass, pry marks or tampering with the locks on the door. When questioned by the police, the defendant stated that he was in the area working for a utility company to help restore power affected by the hurricane. The defendant also stated he intended to sleep in his vehicle and was walking toward the storefront to get a better look at the storm.
At the trial the defense called a witness to testify that he had sent the defendant, together with a second work team, to the hurricane area. The company, Energy Concepts, was a business which sent repair crews to disaster areas. The defendant, as well as the other people in the two crews were assigned to meet with local power and cable companies to obtain jobs after the storm.
The defendant moved for a judgment of acquittal, contending that the state had not established burglary or the possession of burglary tools.
The appellate court ruled that the trial court had committed error by failing to grant the judgment of acquittal and reversed both the attempted burglary and possession of burglary tools. The court noted that there was no direct evidence linking the defendant to the removal of the window boards at Sound Frontier. The court further stated that:
Where a verdict is based wholly on circumstantial evidence, a special standard of review is applicable. See State v. Law, 559 So. 2d 187, 188 (Fla. 1989). "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." Id. As the supreme court has written,
[i]t is the trial judge's proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in light most favorable to the state. The state is not required to 'rebut conclusively every possible variation' of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events. Once that threshold burden is met, it becomes the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.
Id. at 189 (citations omitted); see also White v. State, So. 2d 638 (Fla. 4th DCA 2008) (quoting Sanders v. State, 344 So. 2d 876, 876-77 (Fla. 4th DCA 1977) ("circumstantial evidence must be so strong and convincing as to exclude every reasonable hypothesis except the defendants' guilt and must exclude any reasonable hypothesis of the defendants' innocence").
Remor v. State, 991 So. 2d at 959-960.
The court noted that presence near the scene of a burglary, without more, is not enough to support a burglary conviction. Garcia v. State, 899 So. 2d 447, 450 (Fla. 4th DCA 2005). The court went on to note that:
In Garcia, the police had responded rapidly to a burglary victim's residence and issued a BOLO for a van believed to have been used in connection with the burglary. Id. at 448. Garcia was a passenger in the van, which was stopped within ten minutes of the BOLO. Id. at 450. The state argued that the defendant's presence in the van, coupled with his proximity to the stolen property, constituted sufficient proof of his intent to participate in a burglary. Garcia, 899 So. 2d at 450.
The conviction was reversed, however, because the court held that standing alone, the evidence "[did] not preclude every reasonable inference that the [defendant] did not intend to participate" in the crime. Garcia at 450. This is in conformance with the rule of law that mere knowledge of an offense and mere presence at the scene of the crime are insufficient to establish participation.
Likewise, the case of Beckford v. State, 964 So. 2d 793 (Fla. 4th DCA 2007) held that mere presence near the scene of a burglary was insufficient circumstantial evidence to support a conviction. In that case, there was no physical evidence connecting the defendant to the attempted break-in of a house where he was seen in front of the house, and left after being confronted by a neighbor. The court held that the state's evidence was not inconsistent with the reasonable hypothesis that the defendant was legitimately in the area when first seen by the neighbor. The court also noted because a suspect is present at the scene of the crime and flees after it has been committed is insufficient to exclude every reasonable hypothesis of innocence. It noted that evidence of flight is relevant to infer a consciousness of guilt where there is a sufficient connection between the flight and the crime for which the defendant is charged.
In this particular case, the flight from the police officer was consistent with fleeing the officer because the defendant was in an area subject to a curfew, therefore, the assumption that fleeing was consciousness of guilt did not carry forward to consciousness of guilt to the attempted burglary or possession of burglary tools because it was consistent with consciousness of guilt of violating the curfew.
In discussing burglary tools, the court noted that the miner's light might be a burglary tool if the surrounding circumstances showed that it was actually intended to be used as a tool to perpetrate the crime. No such evidence was present. In discussing the crime of possession of burglary tools, the Supreme Court noted that almost any tool can be a burglary tool depending on the facts. In the case of Thomas v. State, 531 So. 2d 708, 710 (Fla. 1988) the court stated:
[T]he specific intent to commit a burglary or trespass using tools, instruments or machines in the defendant's possession or control exists when he or she engages in or causes some overt act toward the commission of the burglary or trespass, which goes beyond merely thinking or talking about it. The overt act necessary to prove intent need not be limited to the actual use of an item in committing the trespass or burglary, but need only manifest the specific criminal intent.
The total circumstances under which a tool is possessed determines whether it is a burglary tool in violation of the statute. In Thomas, the defendant was seen jumping over a fence and running away. At the time the defendant was caught he was wearing a pair of socks on his hands and carrying a screwdriver (when he was caught he admitted that he entered the area to commit a burglary). Under those facts, the screwdriver was deemed to be a burglary tool.
The court noted that there was no evidence from which it could be inferred that the defendant intended to use the miner's light as a tool in the burglary.