        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                                A.H., a Child,
                                  Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D13-637

                             [November 5, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael Orlando, Judge; L.T. Case No. 12006278DL00B.

   Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public
Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, C.J.

   A.H., a minor, appeals a juvenile disposition order adjudicating him
delinquent for trespass of a conveyance and sentencing him to community
service. A.H. argues that the trial court erroneously denied his motion for
judgment of dismissal because the state failed to introduce sufficient
evidence establishing a prima facie case of trespass of a conveyance. We
agree and reverse.

   By way of background, A.H. was charged with grand theft auto and
resisting arrest without violence after A.H., who was riding as a passenger
in a stolen vehicle, allegedly fled when police pulled over the vehicle. The
matter proceeded to a bench trial where the state announced that it would
proceed on the lesser included count of trespass of a conveyance rather
than grand theft. The state presented the following evidence at trial.

   A.H.’s co-defendant, also a passenger in the vehicle, testified that the
driver of the vehicle told him that the vehicle was a rental. He also testified
that he did not notice any signs of theft-type damage to the vehicle (e.g.,
damage to the vehicle’s ignition column or locks/windows), which was
corroborated by photos of the vehicle at the time it was recovered.

    The officer who arrested A.H.’s co-defendant testified that on the date
of the incident, he encountered the vehicle, ran its tag, and confirmed that
it was reported stolen. As he and his partner approached the vehicle, its
occupants jumped out and began to run. He observed A.H. fleeing after
his partner commanded A.H. to stop.

   After the state rested, A.H. moved for a judgment of dismissal, arguing
that the state failed to submit any evidence that A.H. knew or should have
known the vehicle was stolen. The court denied A.H.’s motion.

   A.H. testified in his own defense. He maintained that he did not flee
and complied with the officer’s commands. A.H. also maintained that he
did not know the car was stolen as the driver told him it was his girlfriend’s
car.

   Following his testimony, A.H. renewed his motion for judgment of
dismissal, which the trial court again denied. A.H. was adjudicated
delinquent on the trespass of a conveyance charge, but acquitted of the
resisting charge. In rendering its decision, the trial court reasoned that
“the facts of the case were as such that . . . he should have known the car
was stolen.” This appeal now follows.

   “Our review of the trial court’s denial of the motion for judgment of
dismissal is de novo.” E.A.B. v. State, 851 So. 2d 308, 310 (Fla. 2d DCA
2003). “The evidence must be viewed in the light most favorable to the
State, and if a rational trier of fact could find that the elements of the crime
have been established beyond a reasonable doubt, sufficient evidence
exists to sustain the conviction.” Id. “If the State did not present sufficient
evidence to establish a prima facie case of the crime charged, then a
judgment of dismissal is proper.” Id.

   To support A.H.’s conviction for trespass of a conveyance, the state had
to prove that A.H. “willfully entered or remained in a conveyance without
being authorized, licensed or invited by the owner or a person authorized
to give permission.” R.M. v. State, 763 So. 2d 1060, 1061 (Fla. 4th DCA
1999); see also § 810.08, Fla. Stat. (2012). In the context of an alleged
trespasser riding as a passenger in a stolen vehicle, the “willful” element
requires the state to establish that the passenger knew or should have
known that the vehicle was stolen. R.M., 763 So. 2d at 1062; E.A.B., 851
So. 2d at 310. Evidence that a passenger in a stolen vehicle fled upon


                                      -2-
interaction with law enforcement, standing alone, is not enough to meet
this burden. R.M., 763 So. 2d at 1062; E.A.B., 851 So. 2d at 310.

    The Second District’s decision in E.A.B. is instructive. There, the court
reversed a minor’s adjudication for trespass of a conveyance for riding as
a passenger in a stolen vehicle. 851 So. 2d at 310. Although the minor
fled from law enforcement when it attempted to stop the vehicle, the minor
testified that he did not know the vehicle was stolen as the person driving
the car told the minor it was his car. Id. Absent any other evidence
regarding the minor’s knowledge that the vehicle was stolen, the court
reversed. Id.

    Here, there simply was no evidence tending to establish that A.H. knew
or should have known the subject vehicle was stolen other than the fact
that he fled when approached by law enforcement. There was no physical
damage to the car indicating that it was stolen. See P.W. v. State, 730 So.
2d 422, 423 (Fla. 5th DCA 1999) (evidence not sufficient to establish minor
who was passenger in stolen car had knowledge car was stolen where
minor claimed he did not know and there was no damage to the car’s
ignition, stereo, or windows). Additionally, A.H. testified that he did not
know the car was stolen, and so did his co-defendant. In sum, the only
evidence tending to establish that A.H. knew the car was stolen was the
officer’s testimony that A.H. fled after being commanded to stop. While
evidence of A.H.’s flight was admissible and relevant to establish guilt, this
evidence alone was insufficient to establish the required element of the
charge – that A.H. knew the vehicle was stolen. E.A.B., 851 So. 2d at 310.

   Reversed.

CIKLIN and FORST, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     -3-
