Wagner v. StateWagner v. State
Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Tallahassee, for appellee.
JOANOS, Judge.
Appellant Wagner has asserted that it was error to deny his motion for judgment of acquittal made at the close of the State‘s case because the circumstantial evidence was insufficient to sustain his convictions of burglary of a dwelling and petit theft. We agree and reverse.
Upon returning from a vacation, the victim, Willcox, discovered that someone had broken into his mobile home. He went next door to ask the neighbors, Wagner, Wagner‘s parents and sister, if they had noticed any strange activity. Wagner was not home at the time. When Willcox listed the missing items for Wagner‘s parents and sister, they retrieved some of the items from various rooms of their mobile home. Wagner was charged with burglary of a dwelling and grand theft.
Initially, we note that it is clear under the appropriate rule that Wagner did not waive his motion for judgment of acquittal by the introduction of evidence in his defense.
We have determined that the State‘s circumstantial evidence was insufficient to exclude all reasonable hypotheses of innocence. Therefore, it was error to deny the motion for judgment of acquittal. Harrison v. State, 104 So.2d 391 (Fla. 1st DCA 1958). In its presentation, the State has shown that Willcox‘s mobile home was broken into, items had been removed, some of the items were recovered from the home where Wagner, his parents and sister lived and Wagner‘s fingerprints were on rum and baby oil bottles. There was no evidence placing Wagner in the burglarized structure and there was insufficient evidence to establish the rum and baby oil bottles as items taken from Willcox‘s home. Assuming it had been established that the bottles bearing Wagner‘s fingerprints were the ones taken from the Willcox home, there would still be insufficient evidence to convict Wagner as his fingerprints could logically be found on items found in his place of residence where three other persons lived. The only evidence linking Wagner to the burglary was that the items were recovered from the mobile home in which he, his parents and sister lived. This is clearly insufficient to sustain the convictions. See, Walton v. State, 404 So.2d 776 (Fla. 1st DCA 1981), petition for review denied, 412 So.2d 471 (Fla. 1982).
Accordingly, the Order of Judgment and Sentence appealed is REVERSED and the case is REMANDED for entry of a judgment of acquittal.
THOMPSON, J., concurs.
LARRY G. SMITH, J., specially concurring with opinion.
LARRY G. SMITH, Judge, specially concurring.
I concur in the majority‘s reversal of the conviction. However, I do not concur in that portion of the opinion dealing with the effect of Wagner‘s testimony, during the defense portion of the trial, supplying factual details bolstering the state‘s case in chief. Specifically, the effect of