Walker v. State , 2014 Fla. App. LEXIS 20933 ( 2014 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed December 31, 2014.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D13-1016
    Lower Tribunal No. 12-7717
    ________________
    James Walker,
    Appellant,
    vs.
    The State of Florida,
    Appellee.
    An Appeal from the Circuit Court for Miami-Dade County, Samantha Ruiz-
    Cohen, Judge.
    Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
    Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney
    General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
    LAGOA, J.
    The defendant, James Walker (“Walker”), appeals from a final judgment of
    conviction and sentence for burglary with a battery and criminal mischief. As to
    Walker’s claim of fundamental error based upon allegedly improper comments
    made by the prosecutor in closing argument, we affirm without discussion. See
    Davis v. State, 
    136 So. 3d 1169
     (Fla. 2014); Braddy v. State, 
    111 So. 3d 810
     (Fla.
    2012), cert. denied, 
    134 S. Ct. 275
     (2013).        We reverse, however, Walker’s
    conviction for criminal mischief and remand for his discharge on this count.
    I.    FACTUAL AND PROCEDURAL HISTORY
    Walker was charged with burglary with a battery as well as criminal
    mischief. The charges stemmed from an incident on March 22, 2012, in which
    Walker had an altercation with Errol Tilwaites (“Tilwaites”), who was the security
    guard at an apartment complex. During the course of the incident Walker pushed
    Tilwaites into the apartment complex’s gatehouse.         As a result of the push,
    Tilwaites landed against a glass door which completely shattered. At the close of
    the defense case, Walker moved for a judgment of acquittal as to the criminal
    mischief charge. The trial court denied the motion.
    II.   STANDARD OF REVIEW
    This Court reviews a trial court’s ruling on a motion for judgment of
    acquittal under a de novo standard of review. Pagan v. State, 
    830 So. 2d 792
    , 803
    (Fla. 2002). It is well settled that if, after construing the evidence in a light most
    favorable to the State, a rational trier of fact could find the existence of the
    elements of the crime beyond a reasonable doubt, the conviction will be sustained.
    Id.; see also Jenkins v. State, 
    1 So. 3d 2
    317, 320-21 (Fla. 3d DCA 2009) (“[T]he State . . . is required during its case in
    chief to present a prima facie case of guilt through the offer of competent
    substantial evidence on each element of the crime . . . failing which the accused is
    entitled to a judgment of acquittal . . . .”) (citations omitted).
    III.   ANALYSIS
    Walker was charged with and convicted of criminal mischief, in violation of
    section 806.13(1)(b)2, Florida Statutes (2012), which provides as follows:
    (1)(a) A person commits the offense of criminal
    mischief if he or she willfully and maliciously injures
    or damages by any means any real or personal
    property belonging to another, including, but not
    limited to, the placement of graffiti thereon or other acts
    of vandalism thereto.
    (b)1. If the damage to such property is $200 or
    less, it is a misdemeanor of the second degree, punishable
    as provided in s. 775.082 or s. 775.083.
    2. If the damage to such property is greater than
    $200 but less than $1,000, it is a misdemeanor of the first
    degree, punishable as provided in s. 775.082 or s.
    775.083.
    (emphasis added). In M.H. v. State, 
    936 So. 2d 1
    , 3 (Fla. 3d DCA 2006), this
    Court held that criminal mischief is a general intent crime, and that “[w]hile malice
    does not require a specific intent to damage the property, malice cannot be
    presumed based upon a finding of property damage.”                   In order to determine
    whether the element of malice was present, “one must look to the circumstances
    surrounding the conduct which caused the damage.” Id.; accord J.R.S. v. State, 
    569 So. 2d 1323
    , 1325 (Fla. 1st DCA 1990).
    3
    Significantly, this Court also recognized in M.H. that “the doctrine of
    transferred intent cannot sustain a conviction for criminal mischief.” 
    936 So. 2d at 4
    . In other words, the criminal mischief statute requires that when a defendant acts
    with malice toward another person, rather than toward property, that malice does
    not transfer to the property. 
    Id. at 5
    ; see also H.F. v. State, 
    927 So. 2d 163
    , 164
    (Fla. 3d DCA 2006) (concluding that “the evidence is insufficient to support a
    finding that the defendant intended to damage or destroy the telephone as opposed
    to acting with malice towards the victim”); Sanchez v. State, 
    909 So. 2d 981
    , 985
    (Fla. 5th DCA 2005) (finding that the State failed to prove the crime of criminal
    mischief where the defendant, with ill will and malice toward a store clerk
    attempted to rob him and in the process the clerk’s telephone was damaged); In re
    J.G., 
    655 So. 2d 1284
    , 1285 (Fla. 4th DCA 1995) (“[T]he criminal mischief statute
    requires that the offender act against the property of another willfully and with
    malice . . . .”).
    Given this, we find that the trial court erred in denying Walker’s motion for
    judgment of acquittal on the charge of criminal mischief. Viewing the evidence in
    the light most favorable to the State, the State failed to present competent,
    substantial evidence that Walker acted with malice toward the property at issue
    (the glass door), rather than toward Tilwaites. The evidence at trial established that
    Walker pushed Tilwaites. As a result of being pushed, Tilwaites landed against a
    glass door and the glass door shattered.
    4
    Even viewed in the light most favorable to the State, the circumstances
    surrounding Walker’s conduct establish only that he acted with malice toward the
    person of Tilwaites. Because the malice directed toward Tilwaites cannot be
    transferred to the glass door, M.H., 
    936 So. 2d at 4
    , the evidence presented by the
    State was insufficient to sustain a conviction of criminal mischief. See H.F., 
    927 So. 2d at 164
    . As a result, Walker’s conviction and sentence for criminal mischief
    must be reversed and the matter remanded for his discharge on this count.
    IV.   CONCLUSION
    Because the State failed to prove the crime of criminal mischief, we reverse
    Walker’s conviction and sentence for that crime and the cause remanded for his
    discharge on that count. Walker’s conviction and sentence for burglary with a
    battery is otherwise affirmed.
    Affirmed in part, reversed in part, and remanded with directions.
    5
    

Document Info

Docket Number: 3D13-1016

Citation Numbers: 154 So. 3d 448, 2014 Fla. App. LEXIS 20933, 2014 WL 7447668

Judges: Suarez, Lagoa, Scales

Filed Date: 12/31/2014

Precedential Status: Precedential

Modified Date: 10/19/2024