        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           JOSEPH BROWN, III,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D15-605

                              [June 29, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin  County;   Elizabeth  Metzger,   Judge;    L.T.  Case    No.
432013CF000775B.

  Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   The defendant appeals after his convictions for burglary of an occupied
dwelling, third degree grand theft, and resisting an officer without violence.
The defendant argues that the trial court erred in denying his motion for
judgment of acquittal on the resisting without violence charge. We agree
with the defendant that insufficient evidence existed to prove he knew of
the police’s intent to detain him. Thus, we reverse the defendant’s
resisting without violence conviction. We affirm on all other arguments.

   The state presented the following evidence at trial. The victim was
home at about 1:00 pm, when he heard several knocks at the front door,
and the doorbell ringing. When the victim went to see who was at the door,
he saw the defendant peeking through the front door, looking into the
house. The victim did not recognize the defendant.

   The victim went to his bedroom, opened up the blinds, and saw the
defendant and another man run to the back of the house. The victim also
saw a car which he did not recognize in the driveway. The victim locked
himself in his bedroom and called 911. While on the phone with 911, he
heard the defendant and his accomplice break into the house.

   The police arrived within three to five minutes. One officer arrested the
driver of the vehicle parked in the driveway. A K-9 officer went with his
dog around the back of the house where he noticed a “back slider”
smashed out. His dog was barking and picked up a track leading away
from the house.

    The K-9 officer and a second officer followed the dog’s tracking up to a
creek, where they located a laptop, two sets of gloves, and a camera. The
officers and the dog went across the creek, and the dog continued tracking
into some bushes. There, the officers found a pillow case, jewelry boxes,
and some wet clothes.

    A third officer went to a perimeter location announced by the K-9
officer. While on the perimeter, the third officer saw the defendant and his
accomplice running west towards a golf course.

   A police helicopter pilot searched for the defendant and his accomplice
near the golf course. The helicopter pilot saw the defendant and his
accomplice as they went underneath some foliage in a wooded area
neighboring the golf course. Soon, officers on the ground found the
defendant and his accomplice hiding under some foliage. The officers
arrested them.

   At the close of the state’s case, the defendant moved for a judgment of
acquittal on the resisting an officer without violence charge.        The
defendant argued, among other things, that the officers did not give him
an order which he opposed. The state responded the evidence showed “the
helicopter was in the air. The dog was there[,] . . . everybody was there
chasing them, and that would be the resisting.”

   The trial court denied the motion for judgment of acquittal, and the jury
found the defendant guilty on all charges. This appeal followed.

   The defendant argues, among other things, that the court erred in
denying his motion for judgment of acquittal on the resisting without
violence charge, because insufficient evidence existed to prove he knew of
the police’s intent to detain him.

   Our review is de novo. See Pagan v. State, 830 So. 2d 792, 803 (Fla.
2002) (“In reviewing a motion for judgment of acquittal, a de novo standard
of review applies. . . . If, after viewing the evidence in the light most

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favorable to the State, a rational trier of fact could find the existence of the
elements of the crime beyond a reasonable doubt, sufficient evidence exists
to sustain a conviction.”) (internal citations omitted).

   We agree with the defendant’s argument on his resisting without
violence conviction. The applicable statute, section 843.02, Florida
Statutes (2013), provides:

      Whoever shall resist, obstruct, or oppose any officer . . . in the
      lawful execution of any legal duty, without offering or doing
      violence to the person of the officer, shall be guilty of a
      misdemeanor of the first degree . . . .

§ 843.02, Fla. Stat. (2013). Under the statute, “the State must prove: (1)
the officer was engaged in the lawful execution of a legal duty; and (2) the
defendant’s action, by his words, conduct, or a combination thereof,
constituted obstruction or resistance of that lawful duty.” C.E.L. v. State,
24 So. 3d 1181, 1185-86 (Fla. 2009).

    Under the second element, “[t]o be guilty of unlawfully resisting an
officer, an individual who flees must know of the officer’s intent to detain
him . . . .” Id. at 1186 (emphasis added; citation omitted). Thus, “as a
general rule, flight, standing alone, is insufficient to form the basis of a
resisting without violence charge.” Id.

    Here, the state’s evidence consisted of flight, standing alone. The state
did not present any evidence that any officer directed the defendant to stop
either before or during his flight. Thus, the state’s evidence was
insufficient to prove that the defendant knew of the police’s intent to detain
him. See Perez v. State, 138 So. 3d 1098, 1100 (Fla. 1st DCA 2014)
(“Contrary to the trial court’s determination, the State did not present any
evidence that law enforcement directed Appellant to stop either before or
after he fled.”); O.B. v. State, 36 So. 3d 784, 788 (Fla. 3d DCA 2010)
(“[T]here is no evidence that O.B. heard any order to stop; in fact, he
testified that when he took off running, he did not hear the officers issue
a command, and he was unaware whether an officer was after him in
particular. The State therefore failed to prove the second requirement,
that an individual who flees must know of the officer’s intent to detain
him.”) (citation and internal quotation marks omitted); S.B. v. State, 31 So.
3d 968, 970 (Fla. 4th DCA 2010) (“[A]lthough S.B. fled upon seeing the
officers, there was no command to stop by the officers at the time S.B.
began to flee. Also, one of the officers testified that he did not think that
S.B. even knew he was being pursued. Thus, although the evidence may
reflect that S.B. was aware that he had caught the officers’ attention when

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he began to flee, it does not prove that he had knowledge that the officers
intended to detain him.”); Clark v. State, 976 So. 2d 1225, 1226 (Fla. 4th
DCA 2008) (“[A]ppellant started to run the moment the unmarked law
enforcement vehicles turned into the parking lot. . . . [The deputy] did not
tell appellant to stop. . . . The evidence does not prove appellant had
knowledge that [the deputy] or any other officer intended to detain him.”).

   Based on the foregoing, we reverse the defendant’s resisting an officer
without violence conviction and remand for the trial court to vacate that
conviction and its corresponding sentence. We affirm on all other
arguments without further discussion.

   Affirmed in part, reversed in part, and remanded with instructions.

CIKLIN, C.J., and WARNER, J., concur.
GERBER, J., dissents with an opinion.

GERBER, J., dissenting.

    I respectfully dissent. In one of the cases upon which the majority
relies, Perez v. State, 138 So. 3d 1098 (Fla. 1st DCA 2014), our sister court,
following its observation that “the State did not present any evidence that
law enforcement directed Appellant to stop either before or after he fled,”
id. at 1100, later stated: “Although there may be a case where the
surrounding circumstances could establish knowledge of law enforcement’s
intent to detain without a command to stop, this is not such a case.” Id. at
1101 (emphasis added).

   The instant case may be “the case” which our sister court hypothesized
may exist, making it distinguishable from the cases upon which the
majority relies. Here, the record contains at least three surrounding
circumstances which, by reasonable inference, could establish the
defendant’s knowledge of the police’s intent to detain him without a
command to stop. See McDuffie v. State, 970 So. 2d 312, 332 (Fla. 2007)
(“Appellate courts review the denial of a motion for judgment of acquittal
under the de novo standard, and must consider the evidence and all
reasonable inferences from the evidence in a light most favorable to the
State.”) (citation omitted).

   First, a reasonable inference could be made that the defendant knew of
the police’s intent to detain him because he and his accomplice fled from
the victim’s home when the police arrived. This inference may be made
because the defendant and his accomplice required at least a few minutes
to break into and ransack the victim’s home while the victim was on the

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911 call, the police arrived within three to five minutes of the 911 call, and
the defendant and his accomplice fled from the back of the house rather
than returning to their getaway car in the victim’s driveway.

   Second, a reasonable inference could made that the defendant knew of
the police’s intent to detain him because he and his accomplice discarded
the items they stole from the victim’s home, and discarded their gloves and
some of the clothes they were wearing, presumably in an attempt to avoid
identification as the perpetrators of the crimes.

    Third, a reasonable inference could be made that the defendant knew
of the police’s intent to detain him because, as the K-9 officer, the second
officer, the perimeter officer, and the helicopter pilot zeroed in, the
defendant and his accomplice ultimately ran into a wooded area before
hiding under some foliage. It is reasonable to infer that the three officers
and the K-9, if not the helicopter flying overhead, created enough sound
to alert the defendant of the police’s intent to detain them, because, if the
defendant did not know of the police’s intent to detain them, why were he
and his accomplice hiding?

    In sum, I recognize that “as a general rule, flight, standing alone, is
insufficient to form the basis of a resisting without violence charge.” C.E.L.
v. State, 24 So. 3d 1181, 1185-86 (Fla. 2009). However, this case involves
more than flight alone. In this case, even absent “evidence that law
enforcement directed [the defendant] to stop either before or after he fled,”
Perez, 138 So. 3d at 1101, the combination of three reasonable inferences
from the evidence is sufficient to prove that the defendant knew of the
police’s intent to detain him. I would affirm the defendant’s resisting an
officer without violence conviction and corresponding sentence.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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