        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           BOBBY LEE CLARK,
                               Appellant,

                                     v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D17-160

                            [January 24, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No.
502015CF009659A.

  Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuña, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, C.J.

   The defendant appeals from his conviction for burglary of a dwelling
while wearing a hood or mask. The defendant argues, among other things,
that the trial court erred when it denied his motion for judgment of acquittal
on the “hood or mask” enhancement, because the evidence showed that
the defendant’s shirt was pulled over only the back of his head, and did
not cover his face. We disagree with the defendant’s argument, because
under the plain language of section 775.0845, Florida Statutes (2016), it is
not necessary that the hood, mask, or other device cover an offender’s face.
Instead, under the statute, the factfinder simply considers “if, while
committing the offense, the offender was wearing a hood, mask, or other
device that concealed his or her identity.” (emphasis added). We affirm the
conviction.

   We present this opinion in three parts:
   1. the state’s trial evidence;
   2. the trial court’s denial of the defendant’s JOA motion; and
   3. our review.
                      1. The State’s Trial Evidence

   On the night of the incident, the victim’s neighbor heard the victim’s
home security alarm sounding. The neighbor knew that the victim was
not home because the victim was at the hospital visiting her husband.
The neighbor yelled to her family about the alarm and ran outside.

   Once the neighbor was outside, she heard the victim’s front side door
shut and saw the defendant exit from the door. The defendant had a shirt
pulled over the back of his head. The shirt did not cover the defendant’s
face. As the defendant walked away from the victim’s home, he removed
the shirt from his head. The neighbor noted that the victim had a security
camera positioned over the door from which the defendant exited.

   As the defendant walked down the victim’s driveway, the neighbor’s
daughter’s boyfriend came up to the victim’s home. The neighbor told the
defendant to stop, and the boyfriend told the defendant he already was
calling 911. The defendant continued walking across the street towards
an apartment complex. The boyfriend followed the defendant until the
defendant reached an apartment, where the defendant began banging on
a door. When the door opened, the defendant went inside. The boyfriend
waited outside the apartment complex until the police arrived.

   When the police arrested the defendant, he had several cuts on his body.
During the investigation at the victim’s home, an officer found blood on
shattered window glass and swabbed it for DNA testing. The DNA matched
the defendant.

    The victim testified that she knew the defendant because he frequently
did odd jobs for her husband. However, the defendant had never been
inside the victim’s home and he did not have permission to enter. On the
day of the burglary, the defendant came to the victim’s home and asked
about the victim’s husband. The victim told the defendant that she was
on her way to visit her husband at the hospital. Shortly after the defendant
left, the victim locked her doors and went to the hospital. The victim’s front
window was intact when she left. After the victim was at the hospital,
she received a call from her alarm company. She left the hospital and
returned home. When she arrived home, she saw her front window was
shattered and the window’s screen was torn.

   The state introduced the surveillance video from the camera located
over the victim’s front side door. The video shows the defendant walking
away from the door with his shirt pulled over the back of his head.

                                      2
     2. The Trial Court’s Denial of the Defendants’ JOA Motion

   After the state rested its case-in-chief, the defendant moved for a
judgment of acquittal on the “hood or mask” enhancement. The defendant
argued the state failed to present a prima facie case that the defendant wore
a hood, mask, or other device to conceal his identity, because the evidence
showed the defendant’s face was not covered.

   The trial court denied the motion. In reaching its decision, the court
pointed out that the defendant used his shirt such that he would be
concealed from the camera’s view. According to the trial court, the camera
would not have captured the defendant’s face because he was walking
away, but the camera would have captured the back of his head had the
defendant not covered it. The trial court did not believe that the
defendant’s failure to conceal his face from the neighbor was a dispositive
fact. The trial court further observed:

         It’s what his intent is at the time that he conducts that
      maneuver with the shirt and I think you brought out in the
      case that [the maneuver] was done at the time and the
      location that is critical to the camera’s eye. In other words,
      where the camera was located. Because certainly when
      he got away from the camera, he took [the shirt] down.

   At the close of all evidence, the defendant renewed his motion for
judgment of acquittal on the “hood or mask” enhancement, based upon the
same argument he made earlier.

   The trial court denied the motion, reasoning as follows:

         So if we look at the enhancement statute, of course it
      makes no reference to covering the face. So that’s not
      required. . . . [T]he Fifth District [in Fletcher v. State, 472
      So. 2d 537 (Fla. 5th DCA 1985)]. . . used some language
      which is helpful to me here. [“T]he statute is[] aimed at
      criminals who employ devices either to make witnesses’
      identifications of them difficult or to otherwise facilitate the
      commission of a crime. This may include covering up one’s
      face[;] [or] altering one’s appearance by disguise or
      costume.[”] Id. at 540. So is it a concealment that is used
      to facilitate the commission of the crime. And then [in
      footnote 4] they talk about concealment which, of course,

                                      3
      is the operative term, and they go to Webster’s dictionary
      . . . it’s [“]to prevent disclosure or recognition [of:] avoid
      revelation [of:] refrain from revealing[:] withhold knowledge
      [of:] draw attention from[: treat] as to be so unnoticed . . .”]
      and here, [“]to place out of sight[:] withdraw from being
      observed[:] shield from vision or notice.[” Id. at 540 n.4.]
      To shield from vision or notice. And that is the definition of
      conceal and it’s a broad definition.

         So let’s look at the facts of this case with those concepts
      in mind. First, [the defendant] is absolutely known to the
      homeowners. . . . But at the same time, that familiarity is
      the reason why [the defendant] can’t be seen on the video,
      even his features, as he is leaving the house. So people are
      recognized who know each other by many things . . . . It
      doesn’t have to be your face. It can be your gait. It can be
      your voice. It can be the top of your head. In this case, [the
      defendant] . . . is bald and there are many features about his
      physical make-up that a person who knew him well could
      readily recognize if it was seen on a video. . . . So in order
      for [the defendant] to hide or conceal from view physical
      features of himself from those people, he decided that he
      needed to cover his head. . . .

          So the Fletcher case is very instructive in that regard. It
      doesn’t have to be your face. It can be covering certain
      physical items of you that make it apparent to who you are
      . . . but in this case it’s the covering of his head and the
      covering of, you know, ears, backs of the head, things of
      that nature, that someone could easily recognize. So . . .
      I do find that the government has made not only a prima
      facie case, but that a jury, a reasonable finder of fact, could
      find that when [the defendant] . . . is putting the shirt over
      the top of his head for that moment while he was under
      the camera view as he was leaving the house, that he did
      so with the intent to conceal his identity from people who
      otherwise would have known who he was. And therefore
      . . . I am denying the motion for judgment of acquittal on
      that enhancement ground.

                              3. Our Review

  This appeal followed. The defendant argues that the trial court erred
when it denied his motion for judgment of acquittal on the “hood or mask”

                                      4
enhancement, because the evidence showed that the defendant’s shirt was
pulled over only the back of his head and did not cover his face.

   Our standard of review was set forth in Pagan v. State, 830 So. 2d 792
(Fla. 2002):

      In reviewing a motion for judgment of acquittal, a de novo
      standard of review applies. Generally, an appellate court will
      not reverse a conviction which is supported by competent,
      substantial evidence. If, after viewing the evidence in the
      light most favorable to the State, a rational trier of fact could
      find the existence of the elements of the crime beyond a
      reasonable doubt, sufficient evidence exists to sustain a
      conviction.

 Id. at 803 (internal citations omitted).

   Section 775.0845, Florida Statutes (2016), states, in pertinent part:

          The felony or misdemeanor degree of any criminal
      offense . . . shall be reclassified to the next higher degree as
      provided in this section if, while committing the offense, the
      offender was wearing a hood, mask, or other device that
      concealed his or her identity.

 (emphasis added).

   “[T]he statute is aimed at criminals who employ devices either to
make witnesses’ identifications of them difficult or to otherwise facilitate
the commission of a crime. This may include covering up one’s face; or
altering one’s appearance by disguise or costume.” Fletcher v. State, 472
So. 2d 537, 540 (Fla. 5th DCA 1985) (emphasis added). The statute does
not require that the offender be successful in his or her attempt to avoid
identification through use of a mask, hood, or device. See generally L.D.H.
v. State, 212 So. 3d 387, 390-91 (Fla. 4th DCA 2017) (juvenile violated
section 775.0845 even though juvenile used his shirt to cover his face for
only a brief amount of time). “Instead, the factfinder simply considers
the totality of the evidence to determine whether the person personally
wore a hood, mask, or other device to conceal their identity.” Id. at 390.

   Here, the defendant pulled a shirt over the back of his head as he walked
away from the victim’s home, under the view of the victim’s surveillance
camera. Viewing this evidence in the light most favorable to the state, it is
reasonable to conclude that the defendant took this action to conceal his

                                       5
identity. As the trial court observed, many ways exist to identify an
offender, particularly when the offender is known to a witness. Here, the
victim personally knew the defendant because the defendant helped
the victim’s husband with odd jobs around their home. The defendant,
likely knowing the surveillance camera’s location from his earlier visits
to the home, attempted to cover the only area of his body which would be
visible in the camera’s view – the back of his head. As the trial court
observed, a person like the victim who knew him well could readily
recognize him on a video. So the defendant, in order to conceal his identity
from the victim, used his shirt to cover the back of his head. Such action
constitutes competent, substantial evidence that the defendant violated
section 775.0845.

                                  Conclusion

    As we noted in L.D.H., “With the growing use of home security video
technology as a crime prevention measure, it is not unreasonable to
conclude that a person intending to burglarize a dwelling would wear a
hood, mask, or other device to conceal their identity.” 212 So. 3d at 391.
That appears to have been the case again here. Based on the foregoing, we
affirm the trial court’s denial of the defendant’s motion for judgment of
acquittal. On the defendant’s other two arguments, we affirm without
further discussion.

   Affirmed.

CIKLIN and LEVINE, JJ., concur.

                           *          *        *

   Not final until disposition of timely filed motion for rehearing.




                                      6
