D. J. E., A Child v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
D. J. E., a child, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-1659
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed October 20, 2015.
An appeal from the Circuit Court for Duval County.
Henry E. Davis, Judge.
Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
D.J.E. was found guilty of loitering and prowling and resisting an officer
without violence. The trial court withheld adjudication and placed D.J.E. on
probation. On appeal, he argues the trial court should have granted his motion for
judgment of dismissal on both counts. We find that the State presented sufficient
evidence to support the resisting an officer without violence charge, and affirm the
disposition order as to that count without further comment. With regard to the
loitering and prowling charge, we agree with Appellant and reverse.
On November 21, 2014, at approximately 3:30 in the afternoon, police
targeted Sofia Apartment Complex as part of the Community Problem Response
Team initiative to reduce criminal activity in high-crime areas. As police drove up
to the complex, a group of approximately four or five young men dispersed.
Appellant walked quickly upstairs to an apartment on the second floor. According
to testimony, he was “hunched over behind [] the flooring and railing,” perhaps in
an attempt to conceal himself from police.
Sergeant Berreira and Officer Helms approached Appellant and asked him
what he was doing. He stated he stayed “here,” indicating a specific apartment.
Due to prior experience with the tenant in this apartment, Sergeant Berreira did not
believe Appellant. 1 The police asked Appellant to come downstairs; Appellant
complied. When police asked Appellant for his name, he replied with profanities.
Police continued to ask questions, but Appellant was uncooperative. Berreira
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Sergeant Berreira knew from prior experience that a young woman and her child
lived in the apartment. At the adjudicatory hearing, Appellant’s sister testified that
she lived in the apartment and that she had expected her brother to visit that
afternoon on the day of the incident.
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placed Appellant under arrest for loitering and prowling. When the police
attempted to search Appellant, he stiffened his arms.
In the patrol car, Appellant informed Officer Helms that he was at the
apartment complex to pick up sugar from his sister, a tenant at the complex.
Officer Helms asked for Appellant’s sister’s name and apartment number, but
Appellant refused to answer. Helms explained that the police were trying to verify
his story. He went on to explain that the apartment complex was a crime free
multi-housing apartment complex and that Appellant’s sister could be evicted for
violation of her lease if she facilitated criminal activity. Appellant responded that
he would not give them her name because he did not want to get her in trouble.
Officer Helms ran a utility records check and could not find anyone with
Appellant’s last name in the complex.
To prove loitering and prowling under section 856.021, Florida Statutes, the
State must show: 1) the defendant loitered or prowled in “a place, at a time or in a
manner not usual for law-abiding individuals;” and 2) such loitering and prowling
were “under circumstances that warrant a justifiable and reasonable alarm or
immediate concern for the safety of persons or property in the vicinity.” This alarm
is presumed “if the defendant flees, conceals himself or any object, or refuses to
identify himself when law enforcement appears.” B.J. v. State, 951 So. 2d 100, 102
(Fla. 4th DCA 2007). The statute further provides that, prior to arrest, police must
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provide a defendant with an opportunity to dispel any alarm by identifying himself
and explaining the questionable conduct. See State v. Ecker, 311 So. 2d 104, 110
(Fla. 1975). The failure to provide identification or an explanation to police are not
elements of loitering and prowling. See W.D. v. State, 132 So. 3d 871 (Fla. 2d
DCA 2014).
To prove the first element, the State must establish that “the defendant
engaged in incipient criminal behavior which law-abiding people do not usually
engage in due to the time, place, or manner of the conduct involved.” E.C. v. State,
724 So. 2d 1243, 1244 (Fla. 4th DCA 1999). “A mere vaguely suspicious presence
is insufficient to satisfy this element.” E.F. v. State, 110 So. 3d 101, 104 (Fla. 4th
DCA 2012) (internal quotations and citation omitted). In other words, the
defendant must engage in “aberrant and suspicious criminal conduct which comes
close to, but falls short of, actual commission or attempted commission of a
substantive crime.” B.J. v. State, 951 So. 2d 100, 103 (Fla. 4th DCA 2007)
(quoting D.A. v. State, 471 So. 2d 147, 151 (Fla. 3d DCA 1985))(finding “incipient
criminal behavior” where appellant was hiding at 1:30 a.m. in the back of a pick-
up truck near a closed business that was the subject of a burglary call); but see J.S.
v. State, 147 So. 3d 608 (Fla. 4th DCA 2014) (finding there was merely a “vaguely
suspicious presence” where defendant was walking in a neighborhood at 4:00 a.m.;
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carrying a book bag and flashlight; there was a BOLO due to a burglary; and
defendant ran away from police).
Appellant’s conduct did not rise to the level of “incipient criminal behavior.”
D.A., at 151. Congregating in a high-crime area at 3:30 in the afternoon and then
dispersing at the sight of police is “vaguely suspicious” conduct. See State v.
Freeman, 542 So. 2d 483 (Fla. 2d DCA 1989) (holding insufficient evidence to
prove loitering where defendant was part of a group that dispersed at the sight of
law enforcement and the group was congregated in a high-crime area).
Accordingly, the evidence did not support an adjudication for loitering and
prowling under section 856.021, Florida Statutes.
Because the State failed to present sufficient evidence to satisfy the first
element of the offense, we need not address the sufficiency of the evidence as to
the second element. We reverse the final disposition order as to the loitering and
prowling charge entered against Appellant and remand for entry of a judgment of
dismissal.
AFFIRMED in part, REVERSED in part, and REMANDED.
WOLF, BILBREY, and WINOKUR, JJ., CONCUR.
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