         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED

DARIUS LAMAR GRAYSON,

              Appellant,

 v.                                                       Case No. 5D15-3128

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed February 24, 2017

Appeal from the Circuit Court
for Brevard County,
Robin C. Lemonidis, Judge.

James S. Purdy, Public Defender, and
Thomas J. Lukashow, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kaylee D. Tatman,
Assistant Attorney General, Daytona
Beach, for Appellee.


EDWARDS, J.

       Appellant raises three issues on appeal from two related cases. In one case, he

was convicted, following a jury trial, of burglary of a dwelling and third-degree grand theft

(property valued at more than $300 but less than $20,000). In the second case, he
pleaded guilty, after losing the first trial, to attempted burglary of an occupied dwelling

and grand theft (property valued at more than $300 but less than $20,000).1

                                     Background Facts

       On the night of Appellant’s arrest, one resident of the burglarized house went

downstairs at approximately 2:00 a.m. He did not observe anything out of place. He went

back downstairs around 2:30 a.m. and noticed that a previously closed sliding glass door

was half-way open and several kitchen drawers were opened. The resident alerted others

in the house, and they quickly determined that car keys, a backpack with nursing school

textbooks, a laptop computer, two iPads, a Kindle Fire tablet, several gaming systems,

and a Prada purse were missing from the home.

       The victims called the police and reported that the burglary had occurred within

thirty minutes of their call.   Several police cars responded to the call because the

neighborhood was recently plagued with residential burglaries. Within minutes of the call,

one police car reported to the victims’ house.         Other police cars surrounded the

neighborhood in an attempt to intercept any suspects leaving the area. Two officers in a

patrol car drove to an adjacent public ball field and parked on the other side of a wood

line separating the field from the victims’ neighborhood in case the burglar or burglars

escaped through the woods. The ball field was closed at that time of night.

       Within approximately two minutes of arriving at the ball field, the police officers saw

the silhouette of a single person walking in and out of the wood line. The individual, who

was later identified as Appellant, was approximately 150 yards away when first spotted




       1When pleading guilty in the second case, Appellant reserved his right to appeal
the denial of his motion to suppress, which was deemed dispositive.


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that Appellant ran back into the woods as soon as the officers identified themselves also

contributed to the officers’ suspicion.

       The issue presented on the motion to suppress is whether the events,

circumstances, and police observations created an articulable, well-founded suspicion of

Appellant’s involvement in criminal activity or whether the seizure was simply a well-

played hunch. Turner v. State, 552 So. 2d 1181, 1182 (Fla. 4th DCA 1989).               “In

determining whether an officer had a reasonable suspicion of criminal activity, courts

consider the totality of the circumstances.” Parker v. State, 18 So. 3d 555, 558 (Fla. 1st

DCA 2008) (citing Huffman v. State, 937 So. 2d 202, 206 (Fla. 1st DCA 2006)). “Relevant

factors include ‘the time of day; the appearance and behavior of the suspect . . . and

anything incongruous or unusual in the situation as interpreted in light of the officer’s

knowledge.’” Id. (alteration in original) (quoting Huffman, 937 So. 2d at 206).

       Many cases have discussed what consideration should be given to a defendant

running from the police when determining the legality of an investigatory stop. In Illinois

v. Wardlow, 528 U.S. 119, 123-25 (2000), the United States Supreme Court held that

unprovoked flight in a high crime area can provide grounds for reasonable suspicion to

justify an investigatory Terry stop.2       While flight is “not necessarily indicative of

wrongdoing . . . it is certainly suggestive of such.”          Wardlow, 528 U.S. at 124.

“[U]nprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature

is not ‘going about one’s business’; in fact it is just the opposite.” Id. at 125.

        In Parker, the First District held that once the defendant “began to run, [police]

had a reasonable suspicion to conduct an investigatory stop, based on the additional



       2   Terry v. Ohio, 392 U.S. 1 (1968).


                                               5
house, located several miles away, when he was apprehended. He explained that he cut

through the wood line to avoid the police because they always bother him.

       In his interview, Appellant stated that he saw three young men, dressed in black,

walking behind a house in the neighborhood.          He suggested that those three men

committed the burglary. Appellant admitted that he walked through several backyards,

peeked inside one screen door, and entered the porch of one house. He also admitted

he needed money but denied stealing any personal property. He informed the officers

that if, hypothetically, he had stolen property, he would not have taken the items to a pawn

shop but instead would have sold the items to his friends.

       At trial, the State presented the testimony of the responding officers and the

victims. It also played Appellant’s recorded interview with the police. Appellant did not

testify at trial. The residents could not identify Appellant as the burglar. Appellant moved

for a judgment of acquittal (“JOA”), which was denied.

                                    Motion to Suppress

       The first issue on appeal is whether Appellant’s seizure was legal. “While the test

to be applied to factual findings of the trial court in this regard is whether competent,

substantial evidence supports those findings, the trial court’s application of the law to the

facts is reviewed de novo.” Pritchard v. State, 987 So. 2d 204, 205 (Fla. 5th DCA 2008)

(citations omitted). The trial judge denied the motion to suppress, noting that a nearby

home was burglarized thirty minutes earlier and that Appellant was roaming in and out of

the wood line at 3:00 a.m. near a neighborhood that experienced a recent rash of

burglaries. According to the police, no other suspects were encountered, and it was

unusual to encounter anyone walking through the ball field at that time of night. The fact




                                             4
that Appellant ran back into the woods as soon as the officers identified themselves also

contributed to the officers’ suspicion.

       The issue presented on the motion to suppress is whether the events,

circumstances, and police observations created an articulable, well-founded suspicion of

Appellant’s involvement in criminal activity or whether the seizure was simply a well-

played hunch. Turner v. State, 552 So. 2d 1181, 1182 (Fla. 4th DCA 1989).               “In

determining whether an officer had a reasonable suspicion of criminal activity, courts

consider the totality of the circumstances.” Parker v. State, 18 So. 3d 555, 558 (Fla. 1st

DCA 2008) (citing Huffman v. State, 937 So. 2d 202, 206 (Fla. 1st DCA 2006)). “Relevant

factors include ‘the time of day; the appearance and behavior of the suspect . . . and

anything incongruous or unusual in the situation as interpreted in light of the officer’s

knowledge.’” Id. (alteration in original) (quoting Huffman, 937 So. 2d at 206).

       Many cases have discussed what consideration should be given to a defendant

running from the police when determining the legality of an investigatory stop. In Illinois

v. Wardlow, 528 U.S. 119, 123-25 (2000), the United States Supreme Court held that

unprovoked flight in a high crime area can provide grounds for reasonable suspicion to

justify an investigatory Terry stop.2       While flight is “not necessarily indicative of

wrongdoing . . . it is certainly suggestive of such.”          Wardlow, 528 U.S. at 124.

“[U]nprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature

is not ‘going about one’s business’; in fact it is just the opposite.” Id. at 125.

        In Parker, the First District held that once the defendant “began to run, [police]

had a reasonable suspicion to conduct an investigatory stop, based on the additional



       2   Terry v. Ohio, 392 U.S. 1 (1968).


                                               5
factors of the time of night, the emptiness of the street, and the recent occurrence of a

crime in the near vicinity.” Parker, 18 So. 3d at 559. “Flight, in itself, is insufficient to

support a reasonable suspicion of criminal activity.” Id. at 558 (citing S.G.K. v. State, 657

So. 2d 1246, 1248 (Fla. 1st DCA 1995)). “Nonetheless, flight can be one factor, among

others, that contributes to an officer’s reasonable suspicion of criminal activity.” Id. (citing

Blue v. State, 837 So. 2d 541, 546 (Fla. 4th DCA 2003)). “Flight can support a resisting

[arrest without violence] charge if the [S]tate proves that (1) the officer had an articulable

well-founded suspicion of criminal activity that justifies the officer’s detention of the

defendant, and (2) the defendant fled with knowledge that the officer intended to detain

him or her.” V.L. v. State, 790 So. 2d 1140, 1142-43 (Fla. 5th DCA 2001) (citations

omitted).

       Similarly, in Sinclair v. State, 816 So. 2d 149, 150-51 (Fla. 1st DCA 2002), with two

judges concurring and one dissenting, the First District held that an articulable well-

founded suspicion existed for a Terry stop when the defendant was spotted in the area of

the crime around the time the crime was committed, the defendant changed his direction

of travel when he first saw the police and again when one of the officers indicated that he

wanted to speak with the defendant, and the responding officers did not observe any

other individuals in the area. Although the facts of this case present a close call, we agree

with the trial court that there was a reasonable suspicion to justify an investigative stop.

Thus, the motion to suppress was properly denied.

                                  Denying Motion for JOA

       Second, Appellant argues that the trial court erred in denying his motion for JOA.

In moving for a JOA, the “defendant admits not only the facts stated in the evidence, but




                                               6
also every reasonable conclusion favorable to the State that the fact-finder might fairly

infer from the evidence.” State v. Odom, 56 So. 3d 46, 49 (Fla. 5th DCA 2011). We have

carefully reviewed the record and find that there was sufficient evidence introduced at trial

to submit the case to the jury. Therefore, the motion for JOA was properly denied.

                             Ineffective Assistance of Counsel

       Third, Appellant claims that the State did not sufficiently prove that the value of the

stolen property exceeded $300 and that defense counsel was ineffective for failing to

move for a JOA as to the third-degree grand theft charge. He contends that if the motion

was granted, he would have been convicted of petit theft, which carries a shorter

sentence. “Claims of ineffective assistance of counsel are generally not reviewable on

direct appeal.” Gordon v. State, 126 So. 3d 292, 294 (Fla. 3d DCA 2011). However,

claims of ineffective assistance of counsel may be raised on appeal if ineffectiveness is

obvious on the face of the appellate record and the prejudice caused by the conduct is

indisputable. See Larry v. State, 61 So. 3d 1205, 1207 (Fla. 5th DCA 2011).

       Several victims provided testimony related to the value of the stolen property. The

relevant testimony included that that the iPads were recently purchased, the laptop cost

$400, the backpack cost $100, the Kindle Fire cost $200, the PlayStation cost $300, the

Prada purse was valued between $350 and $900, and a replacement smart car key would

cost between $100 and $200, plus an additional cost to have the car rekeyed. The victims

also testified to the accuracy of photographs depicting the stolen property recovered by

police outside the victims’ house. While the proof of value of each item could have been

more detailed to include the condition of each item when stolen, the evidence was

sufficient to permit a jury to find that the total value of the stolen property exceeded $300.




                                              7
We conclude that a motion for judgment of acquittal on that point would not have been

granted; thus, there was no ineffective assistance of counsel and no prejudice to

Appellant. Furthermore, because this claimed ineffective assistance of counsel is not

clear on the face of the record, it should be raised, if at all, in a motion for postconviction

relief filed pursuant to Florida Rule of Criminal Procedure 3.850. However, having now

carefully considered this fully briefed claim of ineffective assistance of counsel raised by

Appellant, we deny it on the merits.

       AFFIRMED.



ORFINGER, J., and JACOBUS, B.W., Senior Judge, concur.




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