Schrack v. StateSchrack v. State
Mr. Bode went to the kitchen to call Donna. Appellant followed him and struck him on his head with a metal pot. Appellant said, “This is a holdup, I want your money.” Mr. Bode gave appellant about one hundred dollars from his pocket. Not satisfied, appellant demanded the location of Mr. Bode‘s safe and then searched the house for additional valuable items. Mr. Bode tried to use his telephone to call a neighbor, but the phone was not working. During a brief struggle, appellant cut Mr. Bode‘s hand in several places with a knife and threatened to kill him. Eventually, Mr. Bode managed to crawl outside and yell to a neighbor for help. The neighbor called the police. Meanwhile, Mr. Bode could hear his car starting in the garage.
Appellant was later apprehended when Mr. Bode‘s automobile was spotted by a Martin County deputy as it sped down the street, ran a red light, and then crashed into a beach pavilion. Appellant fled the vehicle and swam into the ocean. He was arrested and found guilty by a jury as charged in the ten-count information. We affirm all points raised in this appeal, but specifically address appellant‘s contention that insufficient evidence rebutted his consent defense on the burglary counts, thus entitling him to a judgment of acquittal.
Appellant argues that there was insufficient evidence to convict him on Count I (burglary of a dwelling while armed) and Count VIII (burglary of a dwelling with assault or battery), because the state‘s evidence affirmatively established that his entry into Mr. Bode‘s home was by consent. He relies upon the Florida Supreme Court‘s recent opinion in Delgado v. State, 776 So.2d 233 (Fla.2000)1,
In Delgado, the supreme court addressed the question whether a person known to the occupant who was consensually invited into the premises could be guilty of burglary if he or she later committed a crime within the structure. The court held that if a defendant can establish that the premises were open to the public or that the defendant was an invitee or licensee, then the defendant has a complete defense to the charge of burglary, unless the defendant “surreptitiously” remained inside the property. Delgado, 776 So.2d at 240. In so ruling, the court receded from its previous opinions upholding burglary convictions in these circumstances upon the theory that consent to enter the victim‘s home is withdrawn upon commission of an offense. Id. at 238.
Delgado, however, concerns only the situation where the defendant enters the premises with the occupant‘s consent. It does not address a defendant‘s entry onto the premises by fraud or trick. “`It is clear that entrance gained [into someone‘s home] by trick or fraud will support a conviction for burglary.‘” Gordon, 745 So.2d at 1018 (quoting Howard, 400 So.2d at 1329). As the trial court recognized, when consent to enter is obtained by trick or fraud there is actually no consent at all. See id. Delgado does not change this general principle of law. See Alvarez v. State, 768 So.2d 1224 (Fla. 3d DCA 2000)(affirming burglary conviction post-Delgado where defendant gained entry into the victims’ home on the subterfuge that he wished to use the bathroom); see also Eltaher v. State, 777 So.2d 1203 (Fla. 4th DCA 2001)(relying on Delgado to reverse a trespass of a structure conviction [lesser included offense of burglary of a dwelling] because defendant had been invited into victim‘s condominium, but recognizing that there was no evidence of fraud or trick).
We conclude that appellant could be found guilty of burglary based upon his deceitful conduct in gaining entry into the victim‘s home. By claiming familiarity and recent contact with a family member and concocting a story about a surprise party, appellant obtained the victim‘s confidence and secured admittance into his home by “trick or fraud.”
AFFIRMED.
POLEN, C.J., and WARNER, J., concur.