Green v. State

Dec 9, 1991

No. 90-1996

Versions:591 So. 2d 965

1991 Fla. App. LEXIS 12224

1991 WL 257733

Lead Opinion

MINER, Judge.

Aрpellant here seeks review of his conviction and sentences for burglary of a dwelling and possession of burglary tools. Of the several grounds for reversal urged on appeal, we find only one merits discussion. Appellant сontends that the trial court erred in its refusal to enter a judgment of acquittal on the charge of possession of burglary tools based on the appellant’s possession of gloves when apprehended. Finding that the trial сourt did not err in this respect, we affirm appellant’s conviction and sentences.

At trial, the victim testified that she discovered a burglary in progress at her dwelling during the early morning hours, and telephoned for emergency assistanсe. When responding officers arrived they observed the appellant running from the area. An officer identified himself and confronted the appellant who stopped but then began running again. The officer eventually caught the appellant and testified that appellant said, “You got me. I give up ... I did it.” The officer indicated that the temperature was in the 50’s or 60’s and that the appellant was wearing gloves on his hands which he appearеd to be attempting to shake off by “slinging”.

At the conclusion of the state’s case, the appellant argued that the state did not make a prima facie case that the gloves he was wearing were “a burglary tool.” He argued that the evidence did not show that he was using the gloves to commit a burglary, rather than to merely avoid detection. He also maintained that gloves are not within the statutory definition of a “tool, machine, or implement” pursuant to section 810.06, Florida Statutes.

On appeal, appellant argues that the state did not establish that he intended to use the gloves found in his possession to commit a burglary, fie contends that no one saw him wearing the glovеs during the burglary and that the state’s failure to obtain any clear fingerprints is not disposi-tive. In a word, he maintains that gloves are not a burglary “tool, machine, or implement.”

The state argues that common objects may be burglary tools, depending on the context in which they are used. The state further asserts that the evidence adduced below establishes that the appellant was using the gloves with the intention of committing a burglary.

The most common usage of thе terms “tool, machine, or implement” does not relate to gloves or other articles of clothing. In Commonwealth v. Purcell, 19 Mass.App.Ct. 1031, 477 N.E.2d 190, rev. den. 395 Mass. 1103, 481 N.E.2d 197 (1985), a Massachusetts court recognized some uncertainty in that state's case law, but determined that it was not bound to follоw precedent which suggested that gloves were not “burglarious” implements. Unlike ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍section 810.06, Florida Statutes, the Massachusetts statute prohibits the possession of only those implements which are “adapted and designed for cutting through, forcing or breaking open a building,” etc. *967Numerous cases under various statutes in other states have included gloves with other objects when describing the defendant’s possession of burglary tools. See 33 ALR 3d 798, § 14[a]. In Broughton v. State, 528 So.2d 1241 (Fla. 1st DCA 1988), this court reversed the conviction for the possession of burglary tools because it was not shown that the defendant was attempting to use the objects to commit a burglary. Although a glove and a ski mask were among the “tools” which the defendant was chargеd with possessing, it was not necessary for the court in Broughton to address whether section 810.06, Florida Statutes could be violated by the possession of a glove.

Webster’s Third New International Dictionary defines implement as “an article (аs of apparel or furniture) serving to equip.” This definition would encompass gloves as an implement which may be used in connection with the burglary, insofar as gloves are an item of apparel which may equip one to commit a burglary. In Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968), cert. den. 393 U.S. 1063, 89 S.Ct. 714, 21 L.Ed.2d 705 (1969), the Arkansas Supreme Court affirmed a conviction for possession of burglary tools which included a pair of rubber gloves. In considering the particular combination of tools or implements the court suggested it is сommon knowledge that burglars use gloves to avoid leaving fingerprints.

In addition to the question of whether gloves are a burglary tool or implement under section 810.06, the appellant contends that his possession of the gloves was not shown to be accompanied by the intent (to use, or allow the object to be used, to commit a burglary) which the statute requires. In Thomas v. State, 531 So.2d 708 (Fla.1988), the Florida Supreme Court explained that such intent may be “gleaned” from the totality of the circumstances, including the context in which the object is to be used and the actions of the accused. Although in the present case there was no eye witness testimony that the appellant was wearing the gloves while he committed the burglary, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍there was testimony that he was wearing the gloves when he was apprehended while running from the scene. The arresting officers stated that the appellant was “slinging” the gloves and “trying to shake them off” as he was apprehended. They noted further that it was not a cold night, estimating the temperature was in the 50’s or 60’s.

We believe the circumstances of this case are sufficient to present a jury question as to whether the apрellant possessed the gloves with the prohibited intent. A question of intent is usually a matter to be determined by the finder of fact, see Jones v. State, 192 So.2d 285 (Fla. 3d DCA 1966), and, a judgment of acquittal should be granted only if the facts and evidence, in every conclusion which might reasonably be inferred therefrom, will not support a conviction. See Lynch v. State, 293 So.2d 44 (Fla.1974); Cunningham v. State, 385 So.2d 721 (Fla. 3d DCA 1980), rev. den., 402 So.2d 613 (Fla.1981). Since the evidence in the present case was sufficient to establish a prima facie case for the jury’s resolution, the court properly denied the appellant’s motion for judgment of acquittal as to the charge of possession of burglary tools. Accordingly, we affirm appellant’s conviction and sentences and certify the following question to the supreme court as one of great public importance:

Are items of personal apparel, such as common gloves, included under the terms “tool, machine or implement” as used in section 810.06, Florida Statutes?

BOOTH, J., concurs and ALLEN, J., concurs in part and dissents in part with opinion.

Concurrence in Part

ALLEN, Judge,

concurring in part and dissenting in part.

Although I agree that the appellant’s burglary conviction must be affirmed, I believe the appellant’s conviction for possession of burglary tools should be reversed. I would nоt construe the section 810.06 terms “tool, machine, or implement” to include a common glove.

Section 810.06, Florida Statutes, provides as follows:

*968Possession of burglary tools. — Whoever has in his possession any tool, machine^ or implement with intent to use the same, or allow thе same to be used, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to commit any burglary or trespass shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

It is axiomatic that words in a statute are to be given their common or ordinary meaning. Maryland Cas. Co. v. Sutherland, 125 Fla. 282, 169 So. 679 (1936); Zebley v. Stuart Nissan, 576 So.2d 851 (Fla. 1st DCA 1991); Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (Fla. 1st DCA 1963); Norman J. Singer, Sutherland Stat. Const. § 47.28 (4th Ed.1984). At least two rationales have been given for this rule of construction. One rationale is founded in considerations of due process, it being reasoned that the common citizen has a right to be fairly notified of the requirements of the law. This rationale is expressed in a Supreme Court opinion by Justice Frankfurter. “Legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.” Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 607, 618, 64 S.Ct. 1215, 1221, 88 L.Ed. 1488, 1496 (1944). A second rationale is that the legislature likely intended the words in their ordinary sense, therefore, “over-refined inquiries into the meаning of words” will often nullify the legislative purpose. See People v. Fair, 254 Cal.App.2d 890, 62 Cal.Rptr. 632 (1967).

During the sixteen years in which section 810.06 has been in its current form, the reported cases have upheld convictions for possession of an assortment of items. Convictions have been upheld for possessing items such as bolt cutters, tire tools, crow bars and screwdrivers. But my research has revealed no prior case upholding a conviction under the statute for possessing an item of personal apparel. I must confess that I am not surprised by the fruits of my research, for, until today, I had never considered that a glove, a hat, a dress or a shirt might be a “tool” under any circumstances. Likewise, I had never before understood suсh items to be “machines” or “implements.” Indeed, the majority acknowledge that “[t]he most common usage of the terms ‘tool, machine, or implement’ does not relate to gloves or other articles of clothing.”

It is my belief thаt almost no one would expect a common glove to be included within the terms “tool, machine, or implement.” I acknowledge that I was most surprised that the majority, even by reference to Merriam-Webster’s thirteen-pоund, 2662-page, unabridged dictionary, were able to find authority for the term “implement” to include items of apparel. I note, however, that that reference work contains no suggestion that an item of apparel might be a “tool” or “machine.” And another Merriam-Webster dictionary, the 1563-page Webster’s Ninth New Collegiate Dictionary, makes no reference to items of apparel in defining “tool,” “machine,” or “implement.”

It seems to me thаt when a court must refer to a thirteen-pound dictionary to substantiate the construction placed upon an otherwise commonplace statutory term, the court is not applying the term in its common or ordinary sense. Rather, the court is engaging in “over-refined inquiries into the meaning of words,” and is thereby depriving the common man of his “right to rely on ordinary words addressed to him.”

Even recognizing the broader definition of “implement" ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍discussed in the majority opinion, the doctrine of ejusdem generis nevertheless limits the meaning of the term within the context of the subject statute. The doctrine may be expressed as follows:

Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.

Singer, Sutherland Stat. Const. § 47.17 (4th Ed.1984).

Section 810.06, Florida Statutes, contains the enumeration “tool, machine, or imрle*969ment.” Therefore, even though the word “implement” may have a more general meaning than the words “tool” and “machine,” the doctrine of ejusdem generis requires “implement” to be construed to embrace only objects similar in nature to a “tool” or “machine.” And, because a common glove is clearly not similar in nature to an object which might be referred to as a “tool” or “machine,” it should not come within the coverage of the statute.

Where the language of a penal statute is susceptible of differing constructions, it is the duty of a court to construe the statute most favorably to the accused. See Section 775.021(1), Florida Statutes, and Ex parte Amos, 93 Fla. 5, 112 So. 289, 298 (1927). Here, the majority’s construction of section 810.06 is not the only reasonable construction of the section. Another entirely reasonable construction limits the terms “tool, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍machine, or implement” to the common or ordinary meanings of those terms. And, as discussed above, this same alternаtive construction can be reached by applying the doctrine of ejusdem generis. Because the statute is susceptible of differing constructions, one favoring the state and one favoring the accused, we should adopt the construction most favorable to the accused.