       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 31, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-1016
                          Lower Tribunal No. 12-7717
                             ________________


                                James Walker,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.


     An Appeal from the Circuit Court for Miami-Dade County, Samantha Ruiz-
Cohen, Judge.

      Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney
General, for appellee.


Before SUAREZ, LAGOA, and SCALES, JJ.

      LAGOA, J.

      The defendant, James Walker (“Walker”), appeals from a final judgment of

conviction and sentence for burglary with a battery and criminal mischief. As to
Walker’s claim of fundamental error based upon allegedly improper comments

made by the prosecutor in closing argument, we affirm without discussion. See

Davis v. State, 136 So. 3d 1169 (Fla. 2014); Braddy v. State, 111 So. 3d 810 (Fla.

2012), cert. denied, 134 S. Ct. 275 (2013).        We reverse, however, Walker’s

conviction for criminal mischief and remand for his discharge on this count.

I.    FACTUAL AND PROCEDURAL HISTORY

      Walker was charged with burglary with a battery as well as criminal

mischief. The charges stemmed from an incident on March 22, 2012, in which

Walker had an altercation with Errol Tilwaites (“Tilwaites”), who was the security

guard at an apartment complex. During the course of the incident Walker pushed

Tilwaites into the apartment complex’s gatehouse.         As a result of the push,

Tilwaites landed against a glass door which completely shattered. At the close of

the defense case, Walker moved for a judgment of acquittal as to the criminal

mischief charge. The trial court denied the motion.

II.   STANDARD OF REVIEW

      This Court reviews a trial court’s ruling on a motion for judgment of

acquittal under a de novo standard of review. Pagan v. State, 830 So. 2d 792, 803

(Fla. 2002). It is well settled that if, after construing the evidence in a light most

favorable to the State, a rational trier of fact could find the existence of the

elements of the crime beyond a reasonable doubt, the conviction will be sustained.

Id.; see also Jenkins v. State, 1 So. 3d

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317, 320-21 (Fla. 3d DCA 2009) (“[T]he State . . . is required during its case in

chief to present a prima facie case of guilt through the offer of competent

substantial evidence on each element of the crime . . . failing which the accused is

entitled to a judgment of acquittal . . . .”) (citations omitted).

III.   ANALYSIS

       Walker was charged with and convicted of criminal mischief, in violation of

section 806.13(1)(b)2, Florida Statutes (2012), which provides as follows:

                      (1)(a) A person commits the offense of criminal
              mischief if he or she willfully and maliciously injures
              or damages by any means any real or personal
              property belonging to another, including, but not
              limited to, the placement of graffiti thereon or other acts
              of vandalism thereto.
                      (b)1. If the damage to such property is $200 or
              less, it is a misdemeanor of the second degree, punishable
              as provided in s. 775.082 or s. 775.083.
                      2. If the damage to such property is greater than
              $200 but less than $1,000, it is a misdemeanor of the first
              degree, punishable as provided in s. 775.082 or s.
              775.083.

(emphasis added). In M.H. v. State, 936 So. 2d 1, 3 (Fla. 3d DCA 2006), this

Court held that criminal mischief is a general intent crime, and that “[w]hile malice

does not require a specific intent to damage the property, malice cannot be

presumed based upon a finding of property damage.”                   In order to determine

whether the element of malice was present, “one must look to the circumstances

surrounding the conduct which caused the damage.” Id.; accord J.R.S. v. State, 569

So. 2d 1323, 1325 (Fla. 1st DCA 1990).

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       Significantly, this Court also recognized in M.H. that “the doctrine of

transferred intent cannot sustain a conviction for criminal mischief.” 936 So. 2d at

4. In other words, the criminal mischief statute requires that when a defendant acts

with malice toward another person, rather than toward property, that malice does

not transfer to the property. Id. at 5; see also H.F. v. State, 927 So. 2d 163, 164

(Fla. 3d DCA 2006) (concluding that “the evidence is insufficient to support a

finding that the defendant intended to damage or destroy the telephone as opposed

to acting with malice towards the victim”); Sanchez v. State, 909 So. 2d 981, 985

(Fla. 5th DCA 2005) (finding that the State failed to prove the crime of criminal

mischief where the defendant, with ill will and malice toward a store clerk

attempted to rob him and in the process the clerk’s telephone was damaged); In re

J.G., 655 So. 2d 1284, 1285 (Fla. 4th DCA 1995) (“[T]he criminal mischief statute

requires that the offender act against the property of another willfully and with

malice . . . .”).

       Given this, we find that the trial court erred in denying Walker’s motion for

judgment of acquittal on the charge of criminal mischief. Viewing the evidence in

the light most favorable to the State, the State failed to present competent,

substantial evidence that Walker acted with malice toward the property at issue

(the glass door), rather than toward Tilwaites. The evidence at trial established that

Walker pushed Tilwaites. As a result of being pushed, Tilwaites landed against a

glass door and the glass door shattered.

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Even viewed in the light most favorable to the State, the circumstances

surrounding Walker’s conduct establish only that he acted with malice toward the

person of Tilwaites. Because the malice directed toward Tilwaites cannot be

transferred to the glass door, M.H., 936 So. 2d at 4, the evidence presented by the

State was insufficient to sustain a conviction of criminal mischief. See H.F., 927

So. 2d at 164. As a result, Walker’s conviction and sentence for criminal mischief

must be reversed and the matter remanded for his discharge on this count.

IV.   CONCLUSION

      Because the State failed to prove the crime of criminal mischief, we reverse

Walker’s conviction and sentence for that crime and the cause remanded for his

discharge on that count. Walker’s conviction and sentence for burglary with a

battery is otherwise affirmed.

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




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