        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                             JOSEPH DeJESUS,
                                Appellant,

                                       v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D15-3072

                              [August 16, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No.
562012CF003432A.

  Leonard S. Feuer of Leonard Feuer, P.A., West Palm Beach, for
appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant Joseph DeJesus (“Appellant”) appeals the trial court’s final
judgment adjudicating him guilty of grand theft and burglary. We write
solely to address Appellant’s challenge as to whether the trial court
properly denied his motion for judgment of acquittal on both counts. 1 As
discussed below, we reverse the trial court’s denial of Appellant’s motion
and vacate the judgment.

                                 Background

    The State charged Appellant with grand theft and burglary of a
dwelling. According to the State, Appellant burglarized the victim’s home,
stealing numerous pieces of property from her. The jury returned a verdict
of guilty on both counts. The trial court sentenced Appellant on the grand
theft charge to five years in prison and, on the burglary count, to ten years

1 We do not address Appellant’s other arguments on appeal regarding certain jury
instructions and the admission of evidence of a prior burglary.
in prison to be followed by five years’ probation. The two sentences were
to run concurrently.

   At trial, the State’s chief evidence was Appellant’s historical cell site
data, which was able to track Appellant’s general movements. The State
showed that on the date of the burglary, Appellant drove 103 miles from
his home to within a few miles of the victim’s home. A detective, relying
on the cell site data, explained the data could track Appellant’s location to
“within seven miles” of the burglary.

   The State also admitted another key piece of evidence: a still image from
a surveillance video showing Appellant and another person walking away
from a white Ford Edge towards a dumpster five days after the burglary.2
The picture showed Appellant walking a few feet in front of the other
person, who was carrying a white garbage bag. Law enforcement later
determined that the garbage bag contained items stolen from the victim’s
home, as well as a Sports Authority bag which did not belong to the victim.
Appellant’s fingerprints were found on the Sports Authority bag, but not
on the stolen items. Moreover, none of the stolen items were found within
the Sports Authority bag.

    Recordings of Appellant’s jail phone calls were also put into evidence.
In the calls, Appellant read the allegations in the information to his
girlfriend and broadly talked about the lack of evidence against him.
Appellant also talked about how he got a new haircut, and that nobody
liked it. The State later hinted that Appellant got the haircut to avoid
identification as a suspect in the burglary.

   After the State presented its case in chief, Appellant argued the
evidence was insufficient to convict and moved for a judgment of acquittal.
The trial court denied the motion. Appellant now appeals the denial.

                                    Analysis

   “A trial court’s ruling on a motion for judgment of acquittal is reviewed
de novo to determine whether the evidence is legally sufficient to support
the jury’s verdict.” State v. Konegen, 18 So. 3d 697, 698 (Fla. 4th DCA
2009) (quoting State v. Burrows, 940 So. 2d 1259, 1261 (Fla. 1st DCA
2006)). “It is well settled that, when reviewing a judgment of acquittal, the

2 The State also introduced evidence that Appellant’s fingerprints were found on
the White Ford Edge, and that the vehicle was seen at the site of an uncharged
burglary two days before the crime at issue in this case. A witness later testified
that she rented the vehicle in her name for Appellant.

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appellate court must apply the competent, substantial evidence standard
and ‘consider the evidence and all reasonable inferences from the evidence
in a light most favorable to the [S]tate.’” Id. at 699 (alteration in original)
(quoting Burrows, 940 So. 2d at 1261).

   When the evidence qualifies as wholly circumstantial, a special
standard of review is applicable. Knight v. State, 186 So. 3d 1005, 1009-
10 (Fla. 2016); State v. Law, 559 So. 2d 187, 188 (Fla. 1989); Bronson v.
State, 926 So. 2d 480, 482 (Fla. 2d DCA 2006). The Florida Supreme Court
elaborated on this standard in Knight, stating, “[w]here the only proof of
guilt is circumstantial, no matter how strongly the evidence may suggest
guilt[,] a conviction cannot be sustained unless the evidence is
inconsistent with any reasonable hypothesis of innocence.” Knight, 186
So. 3d at 1009 (alterations in original) (quoting Jaramillo v. State, 417 So.
2d 257, 257 (Fla. 1982)). In other words, the State “must introduce
competent evidence which is inconsistent with the defendant’s theory of
events.” Johnston v. State, 863 So. 2d 271, 283 (Fla. 2003). “[E]vidence
which furnishes nothing more than a suspicion that the defendant
committed the crime is not sufficient to uphold a conviction.” Garcia v.
State, 899 So. 2d 447, 449 (Fla. 4th DCA 2005) (citing Davis v. State, 436
So. 2d 196, 198 (Fla. 4th DCA 1983)).

   As a preliminary matter, we address the State’s contention that
Appellant never argued in the trial court that the circumstantial evidence
test applied or that he even posited a reasonable hypothesis of innocence.
We find that Appellant did both.

    Upon making his motion for judgment of acquittal, Appellant
specifically cited to Bronson, wherein the court discussed and applied the
circumstantial evidence test. 926 So. 2d at 482-485. In response, the
trial court in the instant case acknowledged having reviewed Bronson and
the other cases cited by Appellant as support for utilizing this test.

   Furthermore, Appellant did present a reasonable hypothesis of
innocence. His defense was that he did not commit the crime charged and
was not present when it was committed, suggesting during closing
argument that he may have been at a friend’s home. “It is a fundamental
requirement of our criminal justice system that at trial, the State bears the
burden of proof beyond a reasonable doubt.” Dausch v. State, 141 So. 3d
513, 517 (Fla. 2014). In light of a defendant’s right not to testify at trial,
this denial would appear to be a sufficient reasonable hypothesis of
innocence.



                                      3
    Addressing the merits of Appellant’s argument on appeal, we conclude
the State’s circumstantial evidence was lacking. The evidence furnished
only a suspicion that Appellant was complicit in the charged crimes. The
State’s main evidence was Appellant’s location near the scene of the crime
around the time of the burglary. However, without more, “mere presence
at the scene of the crime [is] insufficient to establish participation in the
offense.” Garcia, 899 So. 2d at 450; accord Hanks v. State, 43 So. 3d 917,
918 (Fla. 2d DCA 2010). Even if mere presence could be enough, the
State’s evidence in this case did not even prove that Appellant was at the
actual scene of the crime. The cell site data could only track his
whereabouts to within a few miles of the victim’s home. In fact, one
detective testified that the data could only prove Appellant was “about
seven miles away” from the victim’s home.

   The State’s remaining evidence also fails to exclude every reasonable
hypothesis of innocence. A still image of a surveillance video showed
Appellant walking with another person, five days after the charged
burglary, to throw away a white garbage bag which contained items stolen
in the burglary. The State argued that the picture proved Appellant
possessed the stolen property, which in turn would allow the jury to infer
he committed grand theft and burglary. 3

   However, the still image in question does not prove that Appellant had
possession of the stolen items. Even acknowledging the legal possibility
of constructive possession, 4 in this case the State’s still image showing

3 Pursuant to section 812.022(2), Florida Statutes (2011), “proof of possession of
property recently stolen, unless satisfactorily explained, gives rise to an inference
that the person in possession of the property knew or should have known that
the property had been stolen.” Such “unexplained possession of recently stolen
property is not only sufficient to support a theft conviction, but when a burglary
necessarily occurs as an adjunct, the inference of guilt from the unexplained
possession of the recently stolen goods also supports a conviction for burglary.”
Francis v. State, 808 So. 2d 110, 134 (Fla. 2001) (quoting T.S.R. v. State, 596 So.
2d 766, 767 (Fla. 5th DCA 1992)).
4 As this Court wrote, “[t]he crucial inquiry in determining [possession] is whether

possession is personal and ‘involve[s] a distinct and conscious assertion of
possession by the accused.’” Ward v. State, 40 So. 3d 854, 857 (Fla. 4th DCA
2010) (third alteration in original) (quoting Chamberland v. State, 429 So. 2d 842,
843 (Fla. 4th DCA 1983)). That said, a defendant does not necessarily need
personal possession, as he or she can constructively possess stolen property if
there is sufficient evidence that the defendant acted “in concert” with another
person who in turn possessed the property. “The ‘exclusive’ requirement does
not mean that defendant’s possession must be separate from the possession of
all other persons. The joint possession of two or more persons acting in concert

                                         4
Appellant’s mere proximity to someone possessing stolen property does
not in and of itself demonstrate that Appellant himself either actually
possessed the property or “acted in concert” with the other person such
that he constructively possessed the property. The image does not show
Appellant having exclusive possession of the stolen property or displaying
a distinct and conscious assertion to possess the stolen property.
Moreover, the image does not show Appellant acting “in concert” with the
other person. There was no other evidence, besides the still image, linking
Appellant to a criminal collaboration with the other person. What is more,
the fact that the State identified Appellant’s fingerprints on a Sports
Authority bag that was within the same white garbage bag that contained
the stolen property is not direct evidence that Appellant ever touched, let
alone possessed, the stolen items, as his fingerprints were not found on
any of the stolen items and none of said items were found in the Sports
Authority bag that had been touched by Appellant.

    This case is analogous to Garcia, where this Court held that a
defendant’s mere presence in a van that contained stolen items was
insufficient to prove actual or constructive possession—even if the
defendant was sitting in the back seat where the stolen items were located.
899 So. 2d at 451. It is also analogous to Bronson, where the Second
District Court of Appeal similarly held that the defendant’s mere presence
in a truck containing stolen property, driven by the defendant’s father, was
insufficient to prove actual or constructive possession. 926 So. 2d at 483-
84 (Fla. 2d DCA 2006). Third, we liken this case to Ward v. State, where
we held that even though the defendant was found in possession of other
stolen property from the same burglary, he still could not be found guilty
of possessing a stolen scooter because “there [was] no evidence that [the
defendant] was ever in actual possession of the scooter [as opposed to the
other items].” 40 So. 3d 854, 857 (Fla. 4th DCA 2010).

   We additionally note that Appellant’s fingerprints on the white Ford
Edge, a car seen by a witness at a prior burglary, do not prove that
Appellant, or even the white Ford Edge, was at the site of the burglary
charged in this case. Thus, the fingerprints are direct evidence only that
Appellant was in the car at some point in time, and it requires a separate
circumstantial evidentiary inference that the time in question was during
the charged burglary. Similarly, the fact that the white Ford Edge, five
days after the charged burglary, contained stolen items from that burglary,
amounts only to circumstantial evidence that the vehicle was used in that
burglary—it is neither direct evidence nor inconsistent with another

is ‘exclusive’ as to any one of them.” Id. at 856 (quoting Bozeman v. State, 931
So. 2d 1006, 1008 (Fla. 4th DCA 2006)).

                                       5
reasonable hypothesis of Appellant’s innocence, especially in light of an
absence of evidence that Appellant himself actually possessed those stolen
items.

    Finally, contrary to the State’s assertion, there was no evidence
Appellant admitted to the crimes in his jail calls. Instead, in those calls,
he only read aloud the information and, quite fittingly enough, at times
criticized the State’s weak evidence. The State highlights two statements:
“[the information] saying that [the woman who rented the white Ford Edge]
saying she rented the car out for me. Then it said every time she said she
rented the car for us. She said she didn’t know me and [the co-defendant]
were doing burglaries, right?,” and Appellant remarking on his new
haircut. Neither comment is incompatible with Appellant’s reasonable
hypothesis of innocence.

    We recognize the persuasive strength of the cumulative evidence
against Appellant in the instant case, but stress the importance of not
allowing that to lead to a misapplication of the special standard of review
required here, when all the evidence was circumstantial. See Law, 559
So. 2d at 188 (“Where the only proof of guilt is circumstantial, no matter
how strongly the evidence may suggest guilt, a conviction cannot be
sustained unless the evidence is inconsistent with any reasonable
hypothesis of innocence.” (emphasis added)); see also Davis, 436 So. 2d at
198 (“Evidence which furnishes nothing stronger than a suspicion, even
though it would tend to justify the suspicion that the defendant committed
the crime, is not sufficient to sustain conviction. It is the actual exclusion
of the hypothesis of innocence which clothes circumstantial evidence with
the force of proof sufficient to convict.” (quoting Davis v. State, 90 So. 2d
629, 631-32 (Fla. 1956))). Appellant’s reasonable hypothesis of innocence
was that he was elsewhere during the burglary. The State had no direct
evidence placing either Appellant or the white Ford Edge at the scene of
this burglary, and its cumulative circumstantial evidence was insufficient
to rebut Appellant’s hypothesis of innocence.

                                Conclusion

   The trial court erred in denying Appellant’s motion for judgment of
acquittal. The circumstantial evidence of Appellant’s involvement in the
burglary and theft failed to exclude every reasonable hypothesis of
innocence.    We thus reverse the trial court’s final judgment with
instructions to grant Appellant’s motion for judgment of acquittal.

   Reversed.


                                      6
WARNER and LEVINE, JJ., concur.

                         *        *       *

  Not final until disposition of timely filed motion for rehearing.




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