NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
K.B., )
)
Appellant, )
)
v. ) Case No. 2D14-1403
)
STATE OF FLORIDA, )
)
Appellee. )
__________________________________ )
Opinion filed July 1, 2015.
Appeal from the Circuit Court for
Hillsborough County; Manuel A. Lopez,
Judge.
Howard L. Dimmig, II, Public Defender,
and Matthew J. Salvia, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Elizabeth Everson,
Assistant Attorney General, Tampa,
for Appellee.
NORTHCUTT, Judge.
K.B. appeals following a withheld adjudication for burglary of an
unoccupied structure. He contends that the State failed to prove his involvement as a
principal. We agree and reverse, but we remand for a reduction of the burglary charge
to trespass.
K.B. was accused of involvement in the burglary of a portable storage unit
in the fenced backyard of a vacant house. The homeowner had visited the property on
the day before the crime, and the storage container was intact. At around 10 p.m. on
the following evening, a neighbor was sitting outside and spied three young men
walking into the victim's yard. They headed straight to the storage container. The
neighbor went inside and watched from a window. He heard a "big bang" and called
911. As he waited for the police to arrive, the neighbor saw two of the intruders going in
and out of the container. The neighbor saw K.B. walking back and forth but did not see
him enter the container. The neighbor also did not see any of the men take anything.
After about six or seven minutes, the young men jumped over the fence
and headed down the road. The police responded quickly and stopped three young
men a short distance away. K.B. was in the group and was identified by the neighbor.
At the close of the evidence, K.B. moved for a judgment of dismissal. He
argued that the evidence showed only his presence at the scene. The juvenile court
disagreed, ruling that K.B. acted as a lookout and was therefore guilty as a principal.
K.B. renews his argument on appeal.
It is well settled that "[m]ere presence at the scene of the crime,
knowledge of the crime, and even flight from the scene are insufficient to show that a
defendant was an aider and abettor." A.D. v. State, 106 So. 3d 67, 71 (Fla. 2d DCA
2013). Rather, to be a principal to the commission of a crime, "one must have a
conscious intent that the crime be done and must do some act or say some word which
was intended to and does incite, cause, encourage, assist, or advise another person to
actually commit the crime." L.J.S. v. State, 909 So. 2d 951, 952 (Fla. 2d DCA 2005)
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(citing standard jury instructions). In L.J.S., this court held that the evidence failed to
show the juvenile was a principal to burglary of a car even though an officer testified to
the juvenile's statement that he and a friend "served as lookouts." Id. at 952. In that
case, there was no evidence that L.J.S. talked to or warned the burglars or even that
the burglars knew L.J.S. and his friend were standing by. This court held that the
evidence established "nothing more than the personal decision of L.J.S. to watch as
other people committed a crime." Id.
Here, there was no evidence that K.B. did anything to assist in a burglary.
While the neighbor said K.B. was walking back and forth outside the storage container,
he did not say K.B. was looking around as if to avoid detection or was otherwise acting
furtively. Neither did he recount hearing K.B. encourage the others in their endeavors.
In short, the evidence proved only K.B.'s mere presence at the scene and his
knowledge of his companions' actions. There was no evidence of his participation.
Therefore, we must reverse the court's finding of guilt for burglary.
However, K.B. is not entitled to discharge. Trespass is a permissive
lesser included offense for burglary if the elements are alleged in the petition and
supported by the evidence. See L.F. v. State, 694 So. 2d 840, 840 (Fla. 2d DCA 1997);
see also McKiver v. State, 55 So. 3d 646, 649 (Fla. 1st DCA 2011). Here, the
allegations of the delinquency petition were sufficient to encompass the elements of
trespass, and the evidence showed that K.B. made a nonconsensual entry into the
fenced backyard. See § 810.09(1)(a), Fla. Stat. (2013). Accordingly, we remand for the
burglary charge to be reduced to trespass and for the court to hold a new disposition
hearing. See A.D., 106 So. 3d at 71.
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Reversed and remanded with directions.
LaROSE and SALARIO, JJ., Concur.
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