       Third District Court of Appeal
                               State of Florida

                        Opinion filed November 21, 2018.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                                No. 3D18-344
                          Lower Tribunal No. 17-2137
                             ________________

                               M.P., a juvenile,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      An appeal from the Circuit Court for Miami-Dade County, Richard Hersch,
Judge.

     Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Brian H. Zack, Assistant Attorney
General, for appellee.


Before SUAREZ, EMAS, and FERNANDEZ, JJ.

     SUAREZ, J.

     M.P., a juvenile, appeals from an Adjudicatory Order wherein the trial judge

found that M.P. committed trespass and criminal mischief as charged, withheld
adjudication of delinquency and placed her on probation.              We affirm the

adjudicatory order on the charge of trespass; we reverse the adjudicatory order as

to the charge of criminal mischief, and remand for a new adjudicatory hearing on

the criminal mischief charge and for a new disposition hearing and order on the

remaining trespass charge.

      M.P. was charged with trespass and criminal mischief. The victim, Mr.

Yero, is the owner of a duplex trailer. He rents the back unit of the trailer to M.P.

and a co-tenant, while Mr. Yero’s relatives live in the front unit of the trailer. The

front unit contained the air conditioning thermostat controls for both the front and

the back units. M.P. testified that, as part of an ongoing dispute, Mr. Yero’s

relatives in the front unit would repeatedly turn off the air conditioning to the

entire trailer. M.P. testified that on the day of the incident the air conditioning had

been turned off and that her co-defendant, R.H., broke into the front unit of the

trailer using a butter knife to gain entry through the door of that unit. There was no

evidence M.P. participated in the breaking open of the locked door. M.P. admitted

to entering the trailer after R.H. had forced open the door solely for the purpose of

turning on the air conditioning unit. M.P. testified that she did not go into any

other part of the trailer. She stated that she was aware of a burglary of the front

unit two weeks earlier, but that she was not involved in that offense. There was no

evidence adduced that M.P. broke into the front trailer on the day in question or

was involved in the burglary of the front unit two weeks prior.

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      Over defense objections, the trial court permitted the detective and victim to

testify that the front unit of the trailer had been burglarized two weeks earlier and

that some of the tenant’s belongings had been stolen. The trial court also permitted

Mr. Yero to testify, over defense objection, that “they” had broken the front door

of the trailer two weeks prior to M.P.’s charged offense, and that he thought

whoever broke in must have something to do with the back property tenants

because he was trying to evict them. The defense argued that the testimony of the

prior burglary was unconnected to and irrelevant to the current offense, and in

addition impermissibly introduced evidence of an uncharged crime.             At the

conclusion of the bench trial, the court made the specific finding that M.P. entered

the premises without permission, establishing the offense of trespass. The trial

court did not make any findings on the record as to the criminal mischief charge

nor did the trial court state whether or not the court considered the testimony of the

prior burglary in arriving at the court’s decision. The court denied M.P.’s motion

for judgment of acquittal, found her delinquent on the charges of trespass and

criminal mischief, withheld adjudication, and placed her on probation.

      The issue on appeal is whether the trial court erred in overruling the

objections to the admissibility of evidence of the prior burglary and, if so, whether

the trial court considered that evidence in arriving at the final judgment. We

conclude the trial court erred in allowing that evidence and failed to state whether

or not it considered that evidence in forming the final judgment.

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     The State did not file a notice of intent to rely on an uncharged crime,

pursuant to section 90.404(2)(a) and (d), Florida Statutes (2018), arguing there was

no need as the evidence of the uncharged break-in and burglary constituted

dissimilar fact evidence. Further, the State asserted it was not required to comply

with that statute as the testimony of the prior burglary was intertwined with the

charged offenses to the extent it adequately described the events leading up to the

charged crimes, i.e., the animosity between the tenants and the fact that in both the

prior and current offenses the air conditioning was turned off. However, it is only

when it is impossible to give a complete or intelligent account of the charged crime

without reference to uncharged crimes that evidence of those uncharged crimes is

admissible. Wright v. State, 19 So. 3d 277, 292 (Fla. 2009); Griffin v. State, 639

So. 2d 966, 968 (Fla. 1994) (quoting Charles W. Ehrhardt, Florida Evidence §

404.17 (1993 ed.)). In this case, there is absolutely no evidence connecting M.P.

with the prior burglary, M.P. affirmatively denied any participation in that offense,

there was no contrary evidence, and the charge of trespass could be explained and

completely proven without any reference to the prior break-in. The testimony was

simply not relevant to either of the charges against M.P. and should not have been

admitted into evidence.

      The State contends that the error, if any, was harmless as the trial court gave

the inadmissible testimony no weight.        We cannot presume the trial court

disregarded the inadmissible testimony, however, where the trial court overruled

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the objections to the testimony coming into evidence and then did not make an

express statement on the record that the erroneously admitted evidence did not

contribute to the final determination. Petion v. State, 48 So. 3d 726, 737 (Fla.

2010). The State is therefore unable to establish beyond a reasonable doubt that

the improper admission of testimony referencing the prior burglary did not

contribute to the finding of delinquency on the charge of criminal mischief.1 We

therefore reverse the adjudicatory order finding M.P. delinquent of the charge of

criminal mischief, and remand for a new adjudicatory hearing on that charge. We

affirm the finding of delinquency on the charge of trespass but remand for a new

disposition hearing, as we cannot say from the record whether the trial court would

have imposed the same disposition for the remaining charge of trespass. See, e.g.,

Thompson v. State, 172 So. 3d 527 (Fla. 3d DCA 2015); Gray v. State, 170 So. 3d

890 (Fla. 3d DCA 2015).

      Affirmed in part, reversed in part and remanded.




1 M.P. properly concedes that the error was harmless as to the trespass charge,
given that M.P. confessed to the officers that she committed the trespass (and did
not challenge that confession at the adjudicatory hearing). Further, a corroborating
video introduced at the hearing showed R.H. breaking in to the door to the front
unit, and M.P. later entering through that door.
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