Ricky Joe BRONSON Jr., Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Second District.
*481 James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
CASANUEVA, Judge.
Ricky Joe Bronson Jr. appeals his convictions and sentences for burglary and theft. He claims the trial court erred in denying his motion for judgment of acquittal because there was insufficient circumstantial evidence to support the convictions. We agree and reverse.
On December 29, 2003, around 9:30 a.m., Mr. Robert Evans received a frantic call from his wife to come home immediately. Upon returning, he found the interior of his home in shambles and a number of items missing. Among the missing items were a television with a twenty-two- or twenty-four-inch screen, a three-gallon barrel-shaped plastic pickle jar containing pennies, about sixty-one dollars in half-dollar coins, and three two-dollar bills. Neither he nor his wife had given anyone permission to enter the home that morning in their absence or to remove property. A neighbor told the investigating officers that he had observed an older model white pickup truck in front of the Evans home earlier that morning between 8:30 and 9 a.m., when neither Mr. nor Mrs. Evans was at home. The neighbor assumed that the one man he saw was there to work on the air conditioner.
*482 A BOLO describing the pickup truck was issued; and, before the morning ended, a white, older model pickup truck was stopped approximately a mile and a half to two miles away from the Evans home. The appellant's father, Ricky Joe Bronson Sr., was the driver of the truck, and Mr. Bronson Jr. was the passenger. The truck had tires with a distinctive tread that matched tire tracks left at the scene of the burglary. The deputies found a plastic jug filled with coins in the bed of the truck, a bag of half-dollar coins under the passenger seat, and three two-dollar bills in the driver's door panel. The truck also contained a big screen television, two walkie-talkies, gloves, and screwdrivers.
Sheriff's deputies transported Mr. Evans and his neighbor to the scene of the traffic stop. The neighbor identified the truck as similar to the one he had seen at the Evans home, and Mr. Evans identified the bills and coins as property taken from his home. Mr. Evans knew neither occupant of the truck, and the neighbor could not identify either occupant as the man he had seen earlier at the Evans home.
In their investigation, the deputies discovered Mr. Evans' stolen television outside a residence on Butler Road, the home of a person identified as the girlfriend of Mr. Bronson Jr., seven and a half to eight miles from the Evans home. At trial, Mr. Bronson Jr.'s half-sister, who had spent the night before the Evans burglary at the Butler Road residence, testified for the defense that Mr. Bronson Jr. had also been at that residence all night long and into the morning. She testified that she saw Mr. Bronson Sr. arrive there around 9:45 to 10 a.m. that morning in a white pickup truck. He drove to the rear of the residence and unloaded a small television onto an outside air conditioning unit. She also noted a big screen television in the truck. Then she saw Mr. Bronson Jr. leave the Butler Road residence with his father in the pickup truck.
In his motions for judgment of acquittal, defense counsel contended that the State failed to establish a prima facie case of guilt beyond a reasonable doubt or, alternatively, that the State failed to refute his reasonable hypothesis of innocence in its solely circumstantial evidence case. Counsel pointed out to the court that no evidence placed Mr. Bronson Jr. at the Evans home, the neighbor did not identify him as the man he saw there, and no fingerprints linked him to the scene of the burglary. The trial court denied his motions.
The question we face is whether the circumstantial evidence admitted here is sufficient to withstand the motion for judgment of acquittal. "Although the circumstantial evidence rule can be stated with certainty and ease, applying the rule is often a daunting task because `the nature and quantity of circumstantial evidence in each case is unique.'" Haugabrook v. State,
Because the circumstantial evidence test protects against a conviction based on impermissibly stacked inferences, Miller v. State,
*483 Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which maybe entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence.
Davis v. State,
Mr. Bronson Jr. argues that a reasonable hypothesis of innocence flows directly from the State's lack of evidence in two important respects. First, the State's evidence against him establishes only a mere suspicion that he committed or aided the burglary and theft. The strength of that suspicion is based only upon his proximity to the stolen property found an hour or two later in a truck in which he was the passenger. No evidence placed him at or near the crime scene prior to the moment Mrs. Evans telephoned her husband. Similarly, although evidence placed him at the Butler Road residence, it established his presence there at the time his father arrived alone with the Evans' television. Thus, Mr. Bronson Jr.'s only link to the crimes was his presence in the truck driven by his father that contained the stolen items. And it was his father who also had possession of the truck earlier that morning.
Next, Mr. Bronson Jr. contends that the State's lack of evidence is not cured by the inference provided by section 812.022(2), Florida Statutes (2003). This statute provides that if a person is proven to be in possession of recently stolen property, then the jury may infer that the possessor must have known that the property was stolen. Moreover, unexplained possession of stolen property is sufficient to support a burglary conviction when it occurs as an adjunct to a theft. Francis v. State,
Furthermore, possession of the stolen property must be exclusive for the State to be entitled to the inference. However, that exclusive possession may also be joint possession.
Mere possession of stolen property, without other evidence of guilt, is not to be regarded as prima facie evidence of *484 larceny, robbery, receiving stolen property, or burglary. It must be shown that the possession of the defendant was exclusive, recent, and involved a distinct and conscious assertion of property. The meaning of the terms "exclusive" and "recent" will vary with the circumstances of each case.
Scobee v. State,
In measuring the evidence as to the "joint and exclusive" requirement, Scobee noted that the evidence there placed the defendant at the scene of the crime and that he left in a vehicle with the stolen goods in the company of his wife and another person who was implicated in the crime.
This requirement was also addressed in Boone v. State,
Here, no evidence suggests that appellant, at the time he was taken into custody, personally possessed or had control or custody over the stolen boxes. Although the deputy found three stolen boxes in the house where appellant, his brother, and Powell had resided, the boxes were discovered six or seven days after appellant started the Louisiana job. At the time, only Michael and the great grandmother lived at the house. No evidence showed how long the boxes had been at the residence. In sum, the prosecution's evidence did not show that appellant ever actually possessed the items discovered in the house to the extent that he exercised any dominion and control over them, let alone exclusive dominion and control.
Id. at 596.
We conclude that the evidence here failed to establish exclusive possession and, therefore, the State is not entitled to the statutory presumption. The possession must be more than superficial; it must be conscious and substantial. And, most important, it must be both personal and exclusive. Garcia v. State,
The evidence fails to establish the requisite elements of personal and exclusive possession of the stolen items by Mr. Bronson Jr. and thus fails to demonstrate his actual possession of the property. Also, his mere proximity to the items fails to establish even constructive possession. See Davis v. State,
The similar circumstances and reasoning of Garcia,
The Fourth District held that the State's evidence of Mr. Garcia's participation in the burglary and theft was insufficient as proof inconsistent with the defendant's theory of innocence. Mr. Garcia's presence in the red van in proximity to recently stolen property standing alone did not preclude every reasonable inference that he did not participate in the crimes. Neither could the State take advantage of the statutory inference arising from unexplained possession of recently stolen property because Mr. Garcia did not have exclusive possession of that property, and he was not shown to have any ability to exercise dominion and control over it. Id.
Like the Fourth District, in Garcia, we conclude that the trial court erred in denying the motion for judgment of acquittal and reverse the convictions for burglary and theft. We remand the case with instructions to discharge Mr. Bronson Jr.
Reversed and remanded with instructions.
SILBERMAN and WALLACE, JJ., concur.