        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                               S.M., a child,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D13-1099

                            [November 12, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael J. Orlando, Judge; L.T. Case No. 12-7129 DL.

  Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   S.M., a child, appeals the trial court’s adjudication of delinquency for
second-degree petit theft of a bicycle. Appellant claims the trial court erred
by denying his motion for judgment of dismissal, because the state failed
to prove that appellant knew or should have known the bicycle was stolen.
Appellant further claims that the trial court erred in admitting into
evidence a DVD and photograph which were copies of an “original” video.
We find that the state presented sufficient evidence to support appellant’s
conviction for second-degree petit theft, and we find the trial court did not
err in admitting the DVD and photograph into evidence. We affirm the
adjudication of delinquency.

   The victim left for work one morning, leaving the bicycle she bought for
her grandson by the front door. When the victim came home from work,
the bicycle was gone. Her grandson did not know where the bicycle was.
Another boy in the neighborhood showed the victim a cell phone video of
an individual later identified as appellant riding the bicycle in a canal
located up the street from the victim’s home.
   The police arrived and watched the cell phone video. The victim’s
grandsons both identified appellant as the individual riding the bicycle. A
police officer drove to appellant’s home and spoke with appellant, who
denied ever being in possession of the bicycle. The police officer asked
appellant to get the bicycle and return it to the victim. Appellant brought
the bicycle back to the victim’s house thirty to forty minutes later.
Appellant did not say anything, but appellant was wet and the bicycle was
damaged.

   At the trial, the police officer testified that appellant “denied being on
the bike, having the bike, didn’t know anything about the incident.” Then
the officer told appellant there was a video “showing him on the bike and
that it would probably be to his best interest that if he knew the
whereabouts of the bike that he find the bike and return it to the victim.”
Appellant told the officer something to the effect of “I’ll go get the bike.”

   Appellant testified at the trial that on the day of the incident, he was
jumping bicycles with his friends in the canal, when a kid named “Jeffrey”
brought over the bicycle in question. Appellant said that Jeffrey lived in a
nearby neighborhood and that appellant had seen Jeffrey with the same
bicycle three to four times before. Appellant then rode the bicycle and
jumped into the canal.

   Appellant testified that he had no reason to believe the bicycle was
stolen and that the first time he heard it was stolen was from the officer.
Appellant told the officer that he knew the kid who took the bike and that
he would find him and return the bike. Appellant said he spoke with
Jeffrey, and Jeffrey told him that the bicycle was in another canal.
Appellant found the bicycle and returned it to the victim. Appellant stated
he did not know Jeffrey’s last name, home address, or telephone number.

   In rebuttal, the victim stated she did not know a “Jeffrey” from the
neighborhood, and the officer stated that appellant never told the officer
that he knew who took the bicycle.

   At the close of all evidence, the trial court denied appellant’s motion for
judgment of dismissal. The trial court found appellant guilty of petit theft
and adjudicated him delinquent. This appeal ensues.

   Appellant argues that the admission of the DVD and photograph of him
on the stolen bicycle was error. We disagree, and find their admission was
not in error, and this issue is without merit. That leaves the issue of
whether the trial court should have granted appellant’s motion for

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judgment of dismissal, since appellant claims the state failed to prove that
appellant knew, or should have known, the bicycle was stolen. We also
disagree and affirm the adjudication.

    “Because the standard of review that applies to motions for judgment
of dismissal in a juvenile case is the same standard that applies to motions
for judgment of acquittal in an adult criminal case, the juvenile court’s
ruling is reviewed de novo.” S.B. v. State, 31 So. 3d 968, 969 (Fla. 4th DCA
2010).

         When moving for a judgment of acquittal, a defendant
      admits both the facts adduced, as well as every conclusion
      favorable to the State that a finder of fact could fairly and
      reasonably infer from the evidence. Evidence is sufficient to
      sustain a conviction if a rational trier of fact could find the
      existence of the elements of the crime beyond a reasonable
      doubt after viewing the evidence in a light most favorable to
      the State.

Id. at 969-70 (citations omitted).

   To prove petit theft, the state must introduce competent, substantial
evidence that appellant knowingly obtained or used the victim’s bicycle
with the intent to either temporarily or permanently deprive the victim of
the right to or benefit from the bicycle. § 812.014(1)(a), Fla. Stat. (2012).

   Florida law provides that “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.” § 812.022(2), Fla. Stat. (2012). “[M]ere
possession of stolen property is insufficient to establish guilt when there
is an unrefuted, exculpatory, and not unreasonable explanation for the
possession.” M.M. v. State, 547 So. 2d 139, 140 (Fla. 1st DCA 1989).
However, “[u]nless it is grounded in credibility, an accused’s explanation
does not automatically entitle him or her to a judgment of acquittal.”
Haugabrook v. State, 827 So. 2d 1065, 1069 (Fla. 2d DCA 2002).

    In N.C. v. State, 478 So. 2d 1142 (Fla. 1st DCA 1985), the appellant was
charged with possession of stolen tools. Appellant’s “trial account of his
possession,” that he found one item and traded something for the other
item, “did not match his pretrial explanation,” that someone gave them to
him “to hold for awhile.” Id. at 1143-44. The appellate court affirmed the
trial court’s finding of delinquency, stating that “the judge could


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reasonably view the trial account as merely a search for a more acceptable
excuse, rather than the truth” due to the inconsistency. Id. at 1144.

    Likewise in P.N. v. State, 443 So. 2d 193 (Fla. 3d DCA 1983), the
juvenile was arrested for grand theft upon being discovered in possession
of a stolen moped. “When he was stopped by the police, [the juvenile] told
the officer first that he had borrowed the moped from a cousin, then a
brother, and finally—as he testified at trial—from an otherwise
unidentified friend.” Id. at 194. The appellate court affirmed the juvenile’s
adjudication of delinquency, because the juvenile failed to present a
satisfactory explanation for his possession of a stolen moped given the
“multiplicity of alternative versions advanced by the juvenile.” Id.; cf.
Bertone v. State, 870 So. 2d 923, 925 (Fla. 4th DCA 2004) (where
appellant’s trial version of his possession of the stolen property did not
conflict with any pretrial explanation).

   Thus, “[e]ven when a defendant’s theory of events is not clearly
contradicted by direct evidence, a judgment of acquittal is not required if
a common sense view of the circumstantial evidence might lead the jury
to disbelieve the defendant’s theory.” Leasure v. State, 105 So. 3d 5, 16
(Fla. 2d DCA 2012).

    In this case, the trial court, as the trier of fact, was allowed to make a
credibility determination and disbelieve appellant’s proffered explanation
for his possession of the stolen bicycle. At trial, the officer testified that
appellant initially denied “being on the bike [and] having the bike.”
Appellant returned the bicycle after being told of the existence of a video
depicting him riding it. Although appellant claimed at trial that “Jeffrey”
gave him the bicycle and that he told the officer about his friend having
the bicycle, the officer, in rebuttal, denied appellant told him about any
friend named “Jeffrey.” This conflict in testimony between appellant and
the officer allowed the trier of fact to make a credibility determination. The
trial court was free to disbelieve appellant and determine that the motive
for the conflict in testimony emanated from guilty conduct. The fact-finder
was also entitled to believe appellant’s possession of the bicycle, as
documented on the DVD and in the photograph, was indicative of guilty
conduct, especially in light of appellant’s initial denial of involvement or
possession of the bicycle. The fact-finder could believe that appellant
retrieved the bicycle only when confronted with ostensibly incriminating
evidence.      The fact-finder could believe the change in appellant’s
explanation and the change in admission of knowledge was, in fact,
indicative of guilty knowledge.

   In conclusion, we find that the trial court did not err in denying

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appellant’s motion for judgment of dismissal.

   Affirmed.

GERBER, J., concurs.
KLINGENSMITH, J., dissents with opinion.

KLINGENSMITH, J., dissenting.

    I dissent from the majority opinion because the evidence presented at
trial did not support a prima facie case for petit theft. Appellant’s
testimony was unrebutted that he had no reason to believe the bicycle was
stolen, and that he did not know it was stolen until informed by a police
officer. Upon questioning, he told the officer that he knew the person who
had taken the bicycle, and that he would find the bicycle and bring it back.
Appellant identified this individual as “Jeffrey,” and although he did not
know this individual’s last name, address, or phone number, he did know
that Jeffrey lived in a community nearby. Appellant then located the
bicycle, returned it to the victim, and was charged with stealing the bicycle.

   To rebut appellant’s claim, the only testimony presented was from the
victim’s grandmother, who testified that she did not know a boy in the
neighborhood named “Jeffrey,” or whether her grandson played with
anyone by that name. Regarding the neighborhood kids’ names, all she
could say was that she knew “[a] few of them.” Additionally, there was no
evidence presented that a search for “Jeffrey” was ever conducted in an
attempt to refute appellant’s assertion or to disprove “Jeffrey’s” existence.

   Based on the evidence presented at trial, the State failed to prove
beyond a reasonable doubt that appellant knew or should have known the
bicycle was stolen and failed to rebut the reasonable hypothesis of
appellant’s innocence. The First District has held that “mere possession
of stolen property is insufficient to establish guilt when there is an
unrefuted, exculpatory, and not unreasonable explanation for the
possession.” M.M. v. State, 547 So. 2d 139, 140 (Fla. 1st DCA 1989).
There, the court reversed an adjudication of delinquency for grand theft,
finding the “evidence before the trial court was . . . insufficient to establish
guilt” because the defendant’s explanation that he borrowed the stolen
motorcycle from a friend “was not unreasonable, and was unrefuted and
exculpatory.” Id.

   There was no evidence presented about the bicycle that would indicate
that appellant knew or reasonably should have known it was stolen. His
explanation was not refuted. The grandmother clearly testified she did not

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know all of her grandson’s friends, much less all the neighborhood
children. The fact that appellant knew where the bike was and was able
to retrieve it for the victim is, without more, wholly insufficient to support
an adjudication for misdemeanor petit theft. When the State failed to meet
its burden of presenting a prima facie case, a judgment of acquittal should
have been granted. Butler v. State, 715 So. 2d 339, 340 (Fla. 4th DCA
1998).

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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