Shuler v. State , 801 So. 2d 1055 ( 2001 )

801 So. 2d 1055 (2001)

Arthur Jerry SHULER, Appellant,
v.
STATE of Florida, Appellee.

No. 1D00-3615.

District Court of Appeal of Florida, First District.

December 26, 2001.

Nancy A. Daniels, Public Defender; Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Anne C. Toolan, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant was convicted of two counts of throwing a deadly missile into a dwelling, one count of resisting an officer without violence, and two counts of criminal mischief.

On appeal, Appellant challenges only his convictions for throwing a deadly missile into a dwelling. We find that the trial court improperly denied Appellant's motion for judgment of acquittal as to the two counts of throwing a deadly missile into a dwelling because the State failed to present sufficient evidence to establish a prima facie case.

The testimony of James Garvin, Tawana Mitchell, and Sergeant Keith Davis merely established that Appellant was present at the scene around the time, but not at the time, the rocks were thrown through the window. There was absolutely no evidence presented that Appellant actually threw the rocks through the window of Mr. Garvin's house. Mere presence at the scene is insufficient to justify a conviction. See, e.g., Stolen v. State, 519 So. 2d 622 (Fla.1988); T.B. v. State, 732 So. 2d 1163 (Fla. 1st DCA 1999).

Accordingly, Appellant's convictions for throwing a deadly missile into a dwelling are reversed and the case is remanded for further proceedings.

ALLEN, C.J., MINER and DAVIS, JJ., concur.