C.B.S., A Child v. State of Florida , 184 So. 3d 611 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
C.B.S., a child, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-3530
STATE OF FLORIDA,
Appellee.
_________________________/
Opinion filed February 2, 2016.
An appeal from the Circuit Court for Nassau County.
Adrian G. Soud, Judge.
Nancy A. Daniels, Public Defender, Archie F. Gardner, Jr., Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Jillian H. Reding, Assistant Attorney General,
Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for
Appellee.
THOMAS, J.
Appellant C.B.S. appeals the trial court’s order denying her motion for
judgment of acquittal. Appellant was charged with the crime of trespass on
property other than a structure or conveyance. At the hearing, Appellant moved
for judgment of acquittal at the close of the State’s evidence on the grounds that
the State failed to establish she had notice not to enter the property. The State
responded that Appellant had constructive notice not to enter due to the fencing of
the property and the posted and visible “no trespassing” signs. The trial court
agreed with the State and denied Appellant’s motion. We must respectfully
disagree. We conclude that the evidence failed to establish that Appellant had
notice not to enter the property, and accordingly reverse.
On May 24, 2015, Appellant and nine other individuals were discovered on
property owned by Belle River Timber in Nassau County. They were apprehended
by Lt. Anthony Wright with the Florida Fish and Wildlife Commission, who issued
Appellant a citation for trespassing.
At Appellant’s hearing, the State offered into evidence two photographs and
the testimony of Lt. Wright. Lt. Wright testified that Appellant and the other
trespassers entered the property at an overgrown section of the property’s tree line
where there was no fence. One of the State’s photographs showed the entrance
road formed by the trespassers – run-over brush and a marshy area to the right of
the entrance road. Lt. Wright testified that the entrance road itself was natural land
and was not built up by the trespassers. The second photograph showed a barbed
wire fence with a “no trespassing” sign posted near the place where the trespassers
entered the property. While Lt. Wright knew that two such signs were visibly
posted in the area where the trespassers entered the property, he did not know how
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many “no trespassing” signs in total were posted on the property. Lt. Wright also
admitted he had never before seen Appellant on the property, and he never verbally
warned her that she could not be on the property.
The standard of review for denial of a motion for judgment of acquittal is
de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). When reviewing a
motion for judgment of acquittal, the evidence is viewed in the light most
favorable to the State. Jones v. State, 790 So. 2d 1194, 1197 (Fla. 1st DCA 2001).
The purpose of a judgment of acquittal is to test the sufficiency of the State’s
evidence. Id. An appellate court will not reverse a conviction if it is supported by
competent, substantial evidence. Pagan, 830 So. 2d at 803. However, if the State
fails to present sufficient evidence to establish a prima facie case of the crime
charged, then dismissal is proper. E.A.B. v. State, 851 So. 2d 308, 310 (Fla. 2d
DCA 2003).
Here, Appellant was charged with the crime of trespass on property other
than a structure or conveyance. § 810.09, Fla. Stat. (2015). To establish its prima
facie case, the State needed to introduce evidence supporting every element of the
charged crime. The parties agree that the only element at issue is whether
Appellant had notice not to enter the property. The notice required by the statute
can be accomplished in various ways, including through actual communication or
through constructive notice by posting or fencing, as defined by section 810.011.
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To achieve notice through actual communication, section 810.09 requires
that notice against entering or remaining be actually communicated to the offender.
Florida courts have interpreted this requirement to necessitate that the trespasser
receive an oral warning. See Pointec v. State, 614 So. 2d 570, 573 (Fla. 5th DCA
1993). There is no evidence that Appellant was warned against entering or
remaining on the property by actual communication, as Lt. Wright testified he had
never before seen Appellant on the property, and he had never verbally warned her
to stay off the property.
If there is no actual communication of notice, constructive notice can be
accomplished by posting or fencing. Section 810.011 details the requirements that
must be met for the property to be considered posted or fenced for the purpose of
providing notice not to enter. Strict compliance with the statutory requirements is
necessary. V.B. v. State, 959 So. 2d 1252, 1254 (Fla. 3d DCA 2007).
Under the statute, property is considered fenced if
[the] land . . . has been enclosed by a fence of substantial construction,
whether with rails, logs, post and railing, iron, steel, barbed wire,
other wire, or other material, which stands at least 3 feet in height.
For the purpose of this chapter, it shall not be necessary to fence any
boundary or part of a boundary of any land which is formed by water.
§ 810.011(7), Fla. Stat. (2015). Here, it is clear that the property is not enclosed by
a fence because Appellant entered onto the property in a place where there was no
fence. While the statute makes it unnecessary to fence boundaries formed by
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water, the record indicates that a marshy area was on only one side of the entrance
road created by the trespassers, and that the entrance road itself was natural land.
Therefore, the property does not meet the legal definition of fenced land provided
in section 810.011(7).
The property also does not meet the legal definition of posted land. For
property to be posted in a way that would provide trespassers constructive notice,
the posting must meet the following requirements:
Signs are placed not more than 500 feet apart along, and at each
corner of, the boundaries of the land, upon which signs there appears
prominently, in letters of not less than 2 inches in height, the words
“no trespassing” and in addition thereto the name of the owner, lessee,
or occupant of said land. Said signs shall be placed along the
boundary line of posted land in a manner and in such position as to be
clearly noticeable from outside the boundary line[.]
§ 810.011(5)(a)1., Fla. Stat. (2015). The case law is rife with examples of courts
requiring strict compliance with section 810.011(5)(a)1. See In Interest of B.P.,
610 So. 2d 625, 626 (Fla. 1st DCA 1992) (holding judgment of acquittal
improperly denied because there was no evidence the posted signs contained the
property owner’s name); Baker v. State, 813 So. 2d 1044, 1045 (Fla. 4th DCA
2002) (holding property was not posted in accordance with the statute because
there was only one “no trespassing” sign in the lawn of the middle duplex); Smith
v. State, 778 So. 2d 329, 330 (Fla. 2d DCA 2000) (holding that a convenience store
was not posted because the sign was attached to the building rather than the lot’s
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boundaries). Here, there is no evidence in the record that the “no trespassing”
signs were placed 500 feet apart along the boundary and at each corner of the
property. Lt. Wright’s testimony and the State’s photographs showed that there
were two signs posted near the area where the trespassers entered; however,
Lt. Wright admitted to not knowing how many signs were on the property, and
there is no evidence establishing that there were signs posted at the corners of the
property. This alone demonstrates that the State failed to present evidence that the
property was posted in accordance with the statute.
The State argues that the posting of the property also complies with a
different section of 810.011, which allows property owners to paint notice on trees
or posts. The State asserts that with painted notice, signs are only required where
entry onto the property is expected or known to occur. This argument is without
merit. Not only is there no evidence in the record that notice was painted on the
property’s trees or posts, but also the portion of the statute the State relies on
requires that painted notice “shall be accompanied by signs complying with
subparagraph 1” of the statute (i.e., posted 500 feet apart, at each corner, etc.).
§ 810.011(5)(a)2.b., Fla. Stat. (2015).
Appellant’s motion for judgment of acquittal was improperly denied because
the evidence failed to show that Appellant had actual or constructive notice not to
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enter the property. Accordingly, we reverse and remand for entry of an order
granting Appellant’s motion for judgment of acquittal.
REVERSED and REMANDED.
ROBERTS, C.J., and WOLF, J., CONCUR.
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