       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          DEMETRIUS ELLIOT,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D17-1046

                             [ April 18, 2018 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. 15-
005496CF10A.

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

   Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    This appeal arises from two burglaries of the same residence discovered
five days apart. In both incidents, the house was ransacked and property
was taken. Appellant was convicted of the residential burglary count
alleging property damage over $1,000, but he was acquitted of the other
residential burglary. He was also convicted of grand theft of property
worth $20,000 or more. We address appellant’s argument on appeal that
the trial court erred in denying his motions for judgment of acquittal
because the state failed to prove: (1) the amount of the property damage
alleged in the residential burglary charge, and (2) the value of the property
stolen as alleged in the grand theft charge. As to the other issues raised
in this appeal, we find no error.

   Appellant was charged by information in Count I with residential
burglary of the victims’ home between October 25, 2013 and October 28,
2013, with the intent to commit theft and causing property damage in
excess of $1,000. In Count II, appellant was charged with residential
burglary of the same victims’ home between November 1, 2013 and
November 2, 2013 with the intent to commit theft. In Count III, appellant
was charged with grand theft of property valued at $20,000 or more from
the victims’ home between October 25, 2013 and November 2, 2013.

   At trial, the state presented the following evidence. On October 25,
2013, while the homeowners were away on a cruise, their son checked on
their home. When he returned on October 28, 2013, he discovered that it
had been burglarized. He found damage to the rear French doors and
hurricane windows, items strewn all over the floor, and contents from the
trunks of two vehicles on the garage floor. He called the Fort Lauderdale
police, who processed the scene for evidence and took photographs. Police
also found a cigarette butt containing a single DNA source sample that
was later matched to appellant’s DNA sample.

   On November 2, 2013, when the son returned to the house, he noticed
further damage to the French doors, additional items strewn on the floor,
including some of his mother’s purses, and more missing items, including
chinaware and a silver tea set. The son reported the burglary, and the
police again processed the home and took photographs. The son told
police the damage to the French doors was more extensive after the second
incident such that the doors could not be secured.

    Based on information from a confidential informant, in August 2014,
police obtained and served search warrants on two apartments in Fort
Lauderdale—one on 19th Street and the other on 18th Court. Police found
property from the victims’ house in both apartments. They identified the
19th Street apartment as appellant’s residence, which he shared with his
girlfriend. The victims’ chinaware was located at appellant’s residence,
dirty and stacked on the side of the kitchen sink. Police also recovered
other items belonging to the victims, including dining ware, purses,
binoculars, a silver urn, and jewelry. The state, however, did not specify
which property of the victims was found in the 18th Court apartment, nor
did it itemize the value of the items recovered from each of the apartments.

    After the two burglaries, the victims paid $3,724 to replace the French
doors and a hurricane window, and $408.10 to replace the locks after
noticing that their house keys were missing. They paid to replace door
handles but did not provide that receipt at trial. One of the witnesses
testified that the total value of the items taken during the two burglaries
was $24,597. Of that total, $709 worth of items returned was from the
first burglary and $1,954 was from the second. The remaining $21,934
was for items that had not been returned.

   When the state rested its case, appellant moved for a judgment of

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acquittal on each count. He argued that the state failed to establish that
the damage resulting from the October burglary (Count I) was more than
one thousand dollars and that the state had not presented actual evidence
linking him to the November burglary (Count II). As to the grand theft
charge in Count III, appellant argued that the state had not proven that
the items found in the 19th Street residence were knowingly stolen or that
appellant had anything to do with the theft of the items. The trial court
denied the motion for judgment of acquittal on all charges.

   Appellant testified and also called his girlfriend’s brother as a witness.
The brother, who admitted he had 16 felony convictions, testified that his
sister lived with appellant at the 19th Street apartment. The apartment
shared its backyard with the 18th Court apartment, which belonged to a
handyman. The handyman, who had access to appellant’s apartment, was
always doing odd jobs and could get people whatever they wanted. He
would bring various items to the apartment, like a safe and jewelry.

   Appellant testified that he was not involved in burglaries. He said he
was a drug dealer, who supplied drugs to the handyman in exchange for
goods. However, he never asked the handyman where he obtained the
goods. Appellant testified that he had 23 felony convictions.

   After appellant testified, he renewed his earlier motions for judgment of
acquittal, adding that the state had not proven the dollar amount for the
October burglary charged in Count I. The court denied the motions,
finding that after reviewing all the evidence, reasonable minds could differ
and thus, these were issues for the jury to resolve.

   The court instructed the jury as follows regarding determining value of
property on Count III’s grand theft charge: “[a]mounts of value of separate
properties involved in thefts committed pursuant to one scheme or course
of conduct, whether the thefts are from the same person or several
persons, may be added together to determine the total value of the theft.”
Neither side objected.

   Ultimately, the jury found appellant guilty of the October burglary
(Count I), not guilty of the November burglary (Count II), and guilty of
grand theft of property worth $20,000 or more (Count III). The court
denied appellant’s motion for new trial. On Count I, the trial court
sentenced appellant to life in prison as a habitual felony offender under
section 775.084, with a 30-year prison releasee reoffender mandatory
minimum pursuant to section 775.082. On Count III, the court sentenced
appellant to 30 years as a habitual felony offender to run concurrently
with the sentence imposed on Count I.

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   Appellant argues that the trial court erred in denying his motions for
judgment of acquittal, because the state did not prove the damage over
$1,000 element of the October burglary charge, nor the $20,000 or more
property value alleged in the grand theft charge.

   We review the denial of a motion for judgment of acquittal de novo.
Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).

    As to the October burglary, the state alleged a violation of section
810.02(2)(c)2., Florida Statutes (2015). This section converts a second-
degree felony residential burglary into a first-degree felony if the defendant
“[c]auses damage to the dwelling or structure, or to property within the
dwelling or structure in excess of $1,000.” The state presented evidence
that some damage to the French doors and hurricane windows was found
after the October burglary, and that there was more extensive damage to
the French doors following the November burglary. After the November
burglary, the victims paid $3,724 for damage to the French doors and to
a roller window. However, the state’s evidence did not apportion the
amount of damage done to the doors and windows between the two
burglaries. This is significant because appellant was convicted only of the
October burglary, and there was no evidence proving that the amount of
damage caused by the October burglary exceeded $1,000. For this reason,
appellant argues that the trial court erred in denying his motion for
judgment of acquittal.

   Appellant cites Marrero v. State, 71 So. 3d 881 (Fla. 2011), to support
his argument on proof of the amount of damages. In Marrero, the
defendant was charged and convicted of felony criminal mischief after he
drove his Ford F150 pickup truck through the entrance of a casino
building in Miami-Dade County. 71 So. 3d at 883–85. The crash required
the replacement of four impact-resistant glass doors. Id. at 883. The
charge of criminal mischief required proof of damages of more than
$1,000, but the state failed to present evidence of the repair or replacement
costs of the damaged property. Id. at 884, 887. Instead, the state
presented surveillance footage of the defendant’s truck crashing through
the doors and testimony from the facilities director of the casino, who had
no knowledge of the cost or dollar amount of the damage. Id. at 884. The
Third District relied on a “life experience” exception to affirm the
conviction. Id. at 890.

   The Florida Supreme Court reversed Marrero’s conviction, holding that
the conviction was improper because the state failed to prove the amount
of damages—an essential element of the crime. Id. at 890–91. While

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noting “some conflict among our district courts as to whether the amount
of damage is an essential element of a felony criminal mischief charge,” it
observed that our court had previously held that the amount of damage is
an essential element of the crime of felony criminal mischief. Id. at 886
(citing Zanger v. State, 42 So. 3d 944, 945 (Fla. 4th DCA 2010)).

   The court in Marrero further explained:

      [A] plain reading of the criminal mischief statute reveals that
      the amount of damage is an essential element of the crime of
      felony criminal mischief. The only difference between second-
      degree misdemeanor mischief and third-degree felony
      mischief is the value of the damaged property. Felony criminal
      mischief requires proof of the amount of damage, whereas
      second-degree misdemeanor mischief does not. Absent proof
      of the amount of damage, an act of criminal mischief, as
      defined by the criminal mischief statute, is a misdemeanor of
      the second degree. The value of damage, therefore, is clearly
      an essential element of felony criminal mischief.

Id. at 887 (emphasis in original).

   Similarly, a plain reading of the residential burglary statute shows that
the amount of damage is an essential element of the crime of residential
burglary causing “damage to the dwelling or property within the dwelling
in excess of $1,000.” § 810.02(2)(c)2., Fla. Stat. First-degree felony
residential burglary requires proof of the amount of damage, whereas
second-degree felony residential burglary does not.

   Appellant also argues that the state did not prove that the value of the
property stolen by appellant was worth $20,000 or more to support the
grand theft charge in Count III. Appellant contends that the state relied
solely on testimony that the homeowners recovered $709 worth of property
taken during the October burglary and $1,954 worth of property taken
during the November burglary, and that they were unable to recover an
additional $21,934 worth of property still missing as a result of the
combined burglaries. Appellant argues that there was no evidence tying
him to the November burglary, of which he was acquitted, and that the
items retrieved from his apartment were found more than eight months
after the burglaries.

   To form the basis for the alleged property value of $20,000 or more,
appellant asserts that the state combined two separate scenarios—his
theft of some of the property during the October burglary and his receipt

                                     5
of some of the property taken in the November burglary at some point
during the eight months after the October burglary. Appellant argues that
construing this theft and receipt of stolen property as “one scheme or
course of conduct,” as the state urges, would allow convictions for conduct
outside the time period alleged in the charging document—between
October 25 and November 2. Cf. Sebastiano v. State, 14 So. 3d 1160 (Fla.
4th DCA 2009) (finding common scheme or course of conduct where
defendant enticed victim into series of fraudulent real estate purchases
and the defendant was found guilty of organized fraud). Appellant argues
that there was no evidence that he received the November burglary
proceeds within the time period alleged in Count III’s grand theft charge.

    Based on the foregoing, we conclude that the trial court erred in
denying appellant’s motions for judgment of acquittal on the residential
burglary and grand theft counts, as charged in the information, and
reverse and remand for the trial court to reduce appellant’s first-degree
felony conviction for residential burglary with property damage in excess
of $1,000 to second-degree residential burglary (Count I), to reduce
appellant’s second-degree felony conviction of grand theft of property
worth $20,000 or more to third-degree grand theft, and to resentence
appellant accordingly. See Marrero, 71 So. 3d at 891.

   Reversed and Remanded.

MAY and DAMOORGIAN, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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