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

                             D.J.D., a child,
                               Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D12-1242

                            [August 6, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Nicholas Lopane, Judge; L.T. Case No. 11-4288 DL00A.

  Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant
Public Defender, West Palm Beach, for appellant.

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

GERBER, J.

    The juvenile appeals his adjudication for assault on a law enforcement
officer. He argues that because the officer was not engaged in the lawful
performance of a duty when the assault occurred, the circuit court erred
in denying his motion for judgment of dismissal to reduce the charge from
assault on a law enforcement officer to the lesser included offense of
assault. We agree with the juvenile’s argument and reverse.

    At the adjudicatory hearing, an officer who witnessed the assault
testified as follows. He and two other uniformed officers received a
dispatch to assist a Department of Children and Families (“DCF”)
investigation of a woman and her young child at her apartment. When the
officers arrived at the apartment, the DCF investigator advised them that
she discovered the juvenile living with the woman and her child. The
woman told the DCF investigator she believed that the juvenile was an
adult. When the woman learned that the juvenile was not an adult, she
said that she wanted the juvenile to leave.
    The officers contacted the juvenile’s mother and told her to pick him
up. The officers then took the juvenile outside and detained him until his
mother arrived. The officers instructed him that he was not to come back
to the apartment and that he was being turned over to his mother. The
juvenile said that he did not want to go with his mother and wanted to
walk off on his own. The officers told him that he had “to be turned over
to an adult” and could not “walk off when subject to an investigation.” The
officer later testified that the juvenile was not the subject of an
investigation.

    When the juvenile’s mother arrived, the officers explained the situation
to her. She told the officers that the juvenile frequently runs away and
she could not control him. The officers then instructed the juvenile to get
into his mother’s car. The juvenile sat partially in and partially out of the
car, and then started arguing with one of the officers who was standing
next to the door. The juvenile again said that he did not want to go with
his mother and wanted to leave on foot. The officer with whom the juvenile
was arguing said, “Come with me . . . you’re going to go to jail for
trespassing.” At that point, the juvenile became combative. He took a
fighting posture, clenched his fists, and said, “I’m not going anywhere” and
“I’m going to punch you in your s***.” The officer then said, “Okay. Put
your hands behind the back of your [head], you’re under arrest,” and
grabbed the juvenile’s hand. At that point, the juvenile, with a clenched
fist, pushed the officer in the chest. The officer then took the juvenile into
custody.

   The state ultimately filed a petition for delinquency charging the
juvenile with assault on a law enforcement officer under section
784.07(2)(a), Florida Statutes (2011). That statute provides, in pertinent
part, as follows:

      (2) Whenever any person is charged with knowingly
      committing an assault . . . upon a law enforcement officer . . .
      while the officer . . . is engaged in the lawful performance of his
      or her duties, the offense for which the person is charged shall
      be reclassified as follows:

      (a) In the case of assault, from a misdemeanor of the second
      degree to a misdemeanor of the first degree.

§ 784.07(2)(a), Fla. Stat. (2011) (emphasis added).

  After the state rested, the juvenile moved for a judgment of dismissal.
The juvenile argued, in pertinent part:

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         In order for the State to show that an assault or a battery
      takes place on a law enforcement officer . . . [the State has] to
      show that [the] officer was in the legal execution of his duty
      because a person has a right to resist any unlawful arrest.

         ....

          [T]here’s no testimony that [the officer] was in the lawful
      execution of his duty. At [the time of the assault], according
      to the testimony, the [juvenile] was with the mother. They had
      fulfilled their obligation. That he was ordered to go, be with
      his mother, and he could only be turned over to her custody
      before he could leave. She met with him. If he wanted to walk
      off that was now the mother’s jurisdiction to decide how to
      handle that situation. He was off the premises of the
      apartment [and] he was no longer interfering at all with the
      investigation by DCF. This is a completely separate incident.
      Maybe he was mouthy, disrespectful to the officer but that’s
      not enough to sustain this.

      ....

The state responded that because the officers were assisting in a DCF
investigation and investigating a possible trespass, they were engaged in
the lawful execution of their duty. The court denied the motion.

   In the juvenile’s case-in-chief, the juvenile’s mother testified that when
she got to the apartment location, she told the juvenile to get into her car.
He said that he was going to walk, and started walking. The juvenile’s
mother testified she “was okay with that” because she knew he needed to
cool down and she knew the area. However, when the juvenile started
walking, “the officers pulled their car in front of him and pulled him to the
ground; told him to get in [her] car.” The officers then pulled the juvenile
back up, and again told him to get in her car. When the juvenile became
defiant and did not move, the officers put him in their car.

   After the juvenile rested, he renewed his motion for a judgment of
dismissal. The juvenile argued, in pertinent part:

         [The State has] to show that this officer was in the legal
      execution of his duty. And there’s a difference between a cop
      just being on duty and being in a legal execution of a duty
      here. And that wasn’t established by the State. The child was

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      ordered to go to his mother, he did. The mother had decided
      the best way to handle this case was to let him cool down,
      walk off. She had the experience. She knew what she was
      doing. And the situation and in her estimation was being
      resolved. The officers took it upon themselves to come back
      and grab the child at that point [and arrest him].

         . . . They no longer were in lawful execution of a duty, the
      child was not inhibiting, or delaying, or obstructing the DCF
      investigation at all. He was not being detained for any sort of
      investigation at all regarding anything. . . . .

         Also, with . . . the lack of the execution of duty, the child
      really has no obligation to do anything except . . . leave the
      apartment, which he did and was satisfied. And then fall into
      the mother’s jurisdiction to handle that. There’s really
      nothing . . . further because the State hasn’t met those
      elements and established that there was a legal duty at that
      point. . . . .

   The circuit court denied the motion for judgment of dismissal. The
court then found the juvenile guilty of assault on a law enforcement officer
and adjudicated him delinquent.

   This appeal followed. The standard of review applicable to the denial of
a motion for judgment of dismissal in a juvenile case is de novo. A.R. v.
State, 127 So. 3d 650, 653 (Fla. 4th DCA 2013) (citation omitted). If the
evidence taken in the light most favorable to the state does not support
the juvenile’s guilt, then we must reverse the denial of the motion for
judgment of dismissal. Id.

    The juvenile argues that the circuit court erred in denying his motion
for a judgment of dismissal as to the enhanced offense of assault on a law
enforcement officer, and that we should remand the case with directions
to reduce the adjudication to the lesser included offense of assault.

    The state argues that, at the time of the assault, the officer was engaged
in the lawful performance of a duty in three ways:

          First . . . the police were still assisting with the DCF
      investigation and by not actually leaving the premises, there
      was a real possibility that [the juvenile] would have returned
      to the residence, where he had been living, and interrupted or
      interfered with the investigation. Thus, they had a legal duty

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to ensure that he left the premises completely. And the only
way to ensure this would be if [the juvenile] left in the car with
his mother. If [the juvenile] left on foot, as he wanted, he could
have easily returned to the residence, contrary to [the
woman’s] wishes . . . .

    Second, while [the juvenile] was not initially the subject of
the DCF’s investigation of [the woman] and the child, he
became the subject of a DCF investigation and subject to
detention by the police, until he could be released to a parent,
because it was disclosed during the initial investigation that
he was under the age of 18 and he was having a sexual
relationship with [the woman], an adult. See § 794.011(8),
Fla. Stat. (2011) (sexual battery of a child between the ages of
12 and 18 and noting that consent is not a defense);
§ 39.401(1)-(2), Fla. Stat. (2011) (Taking a child alleged to be
dependent into custody; law enforcement officers and
authorized agents of the department. – A child may only be
taken into custody by a law enforcement officer if the officer
has probable cause to support a finding that the child has
been abused and if the officer takes the child into custody, the
officer shall release the child to the parent of the child). . . .

    Third, when the mother arrived on the scene to pick [the
juvenile] up, she told the police that her son was a frequent
runaway and she could not control him. At this point, the
police were authorized under their community care-taking
function to take [the juvenile] into custody and release him to
her care. See § 984.13, Fla. Stat. (2011) (authorizing and
obligating a law enforcement officer to take a child into
custody if the officer has reasonable grounds to believe that
the child has run away from his parents); see also D.O. v.
State, 77 So. 3d 787, 790 (Fla. 3d DCA 2011) [(Emas, J.,
specially concurring)] (“Law enforcement, in a very real sense,
fulfills a role as a ‘community caretaker’ when they encounter
. . . child runaways . . . and children beyond the control of
their parents. They have not only the authority, but also a
statutory obligation, to quickly reunite the child with their
parent or guardian, or return the child to school or the
appropriate agency that can provide the services needed in
light of the individual circumstances.”) (emphasis added).




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    We agree with the juvenile’s argument for reduction of the enhanced
offense, and conclude that the state’s three arguments for the enhanced
offense lack merit. We address each of the state’s three arguments in turn.

   The state’s first argument appears to suggest that the officers arrested
the defendant for the crime of “possible later trespass” of the woman’s
residence. However, no such crime exists. Moreover, the officers could
not lawfully arrest the juvenile for trespass in the woman’s residence due
to his earlier presence there because he already had left that residence
after being told to do so. Cf. F.E.H., Jr. v. State, 28 So. 3d 213, 217 (Fla.
4th DCA 2010) (detective who approached juvenile in the parking lot of a
closed daycare center lacked reasonable suspicion to make an
investigatory stop of the juvenile for trespassing where the parking lot was
an open lot on a corner and the juvenile already had left the lot when he
was stopped).

    The state’s second argument lacks merit as a matter of law. The officer
who testified at the adjudicatory hearing conceded that the juvenile was
not the subject of a DCF investigation, and the record contains no evidence
that the officers were seeking to take the juvenile into custody as a
dependent child. Moreover, no legal basis existed for the officers to take
the juvenile into custody as a dependent child. The juvenile was not an
abuse victim under section 794.011(8)(b), Florida Statutes (2011), as the
state alleges, because the woman with whom he was living was not “a
person . . . in a position of familial or custodial authority” over him.
§ 794.011(8)(b), Fla. Stat. (2011). As for the relationship between the
juvenile and his mother, the officers had no information to form a probable
cause finding that he had been “abused, neglected, or abandoned, or [was]
suffering from or [was] in imminent danger of illness or injury as a result
of abuse, neglect, or abandonment.” § 39.401(1)(b)1., Fla. Stat. (2011).

   The state’s third argument also lacks merit as a matter of law. Although
the juvenile’s mother told the officers that he frequently runs away and
she could not control him, the record contains no evidence that the officers
were seeking to take the juvenile into custody as a runaway. See
§ 984.13(1)(a), Fla. Stat. (2011). As for the “community caretaker” role
described in D.O., the officers already had fulfilled that role by reuniting
the juvenile with his mother. Although the juvenile again said that he did
not want to go with his mother and wanted to leave on foot, his mother did
not request the officers to prevent him from doing so, and he had not done
so before the officer at issue told him “you’re going to go to jail for
trespassing” and grabbed the juvenile out of his mother’s car. Without
more information from the mother or more action from the juvenile, it was


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premature for the officer at issue to intervene in the mother’s custody of
her son at that time, even if well-intentioned.

    In sum, because the officer whom the juvenile pushed was not engaged
in the lawful performance of his duty at the time of the assault, the circuit
court erred in denying the juvenile’s motion for judgment of dismissal to
reduce the charge from the enhanced offense of assault on a law
enforcement officer to the lesser included offense of assault. We reverse
and remand with instructions for the circuit court to adjudicate the
juvenile of the lesser included offense of assault, and to conduct any
further proceedings necessary as a result of that lesser adjudication.

   Reversed and remanded with instructions.

GROSS and CONNER, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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