Nancy A. Daniels, Public Defender, and Barbara Busharis, Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
William Dicks, Jr., appeals his judgment of conviction and sentence for burglary of a dwelling, asserting fundamental error occurred when, during closing arguments,
the prosecutor misstated the law of burglary. We disagree and affirm.
On the morning of April 1, 2010, Bohman Kirby was driving past rural land he owned in Columbia County when he noticed fresh tire tracks leading onto the property. Kirby testified he drove past the property on nearly a daily basis and had " walked" the property just two or three days earlier. Located on the property was a vacant mobile home that had been used as a residence by him and his family and, later, as rental property. On this particular morning, when he also observed the meter box had been pulled from its pole, Kirby stopped to investigate and saw that some cinder blocks used to surround a fire pit had been moved to allow a vehicle to back up to the mobile home. As he walked around the home, he also discovered that wires leading to the meter and the air conditioning unit had been cut and the back door had been pried open. Kirby looked inside a nearby utility shed and realized furniture he had been storing there was missing. The yard surrounding Kirby's mobile home was not enclosed by a fence.
Kirby called the Columbia County Sheriff's Office. When Deputy Jonathan Rhodes arrived at around 8:45 a.m., he, too, observed the tire tracks, the cut wires, and the pry marks on the back door. In addition, he saw a hole in the skirting running around the base of the mobile home. He took photographs, collected a cigarette lighter he found on the ground, and then left. However, when he returned in the afternoon, he saw a bag of tools, a " Sawzall" and some copper wiring on the ground, none of which had been there that morning. In addition, he noticed an " egg crate" foam mattress lying on the ground— which Kirby later identified as having come from the utility shed— and discovered that the hole in the skirting appeared to have been enlarged. Using a flashlight, Deputy Rhodes looked into the hole and saw a man, later identified as Dicks, wearing work gloves and trying to hide behind the mobile home's cement support blocks. Dicks' brother was also under the home and wearing work gloves. Deputy Rhodes removed the men from underneath the mobile home and learned that while Dicks resided in another town, his brother lived about three miles away. When Rhodes arrested them, both men had cigarettes in their possession, but only Dicks' brother had a lighter. Kirby, who was called back out to the property, confirmed that the wiring stacked up outside in the yard had not been there in the morning but had been cut recently and pulled out from underneath the trailer. Kirby later testified that so much wire had been removed, the mobile home was no longer capable of receiving power and all of the utilities required rewiring.
Dicks was charged by amended information with burglary of a dwelling by unlawfully entering a dwelling with the intent to commit theft, proscribed by section 810.02, Florida Statutes (2009). Section 810.011(2) defines the term " dwelling" to mean " a building or conveyance of any kind, including any attached porch ..., which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof." In his opening statement, defense counsel conceded that while Dicks was guilty of trespass, and even of stealing, he was not guilty of burglary.
During closing arguments, the prosecutor advised the jury that the trial court would read them instructions concerning the offense of burglary of a dwelling, but he intended " to talk" about those instructions and recited the basic elements of the offense. However, at the point of defining a " dwelling," the prosecutor " paraphrased"
the statutory definition provided in section 810.011(2) by describing a dwelling as " a building with a roof designed to be occupied by persons[,] together with the yard and the outbuildings immediately surrounding it." Moreover, when addressing whether Dicks had " entered" the dwelling, the prosecutor described the " backyard" as part of the dwelling, and argued that by Dicks' having " merely" entered the backyard of the mobile home, he had entered into the dwelling. The prosecutor went on to summarize his point as follows: " A person in the backyard with the intent to commit a theft, it doesn't matter if they're in the backyard or if they're in the back bedroom. They are trespassing and they are intending to steal. That is burglary. " No objection was forthcoming from the defense. Instead, in his closing argument, defense counsel strenuously expressed his disagreement with the state's paraphrased definition of a dwelling, carefully explaining to the jury that under Florida law the yard must be " enclosed" in order to constitute a part of the dwelling. He also reminded the jury that the definition of a dwelling would be read to them by the trial court and would describe the dwelling as including only the " enclosed space of ground and outbuildings immediately surrounding it." Nevertheless, in rebuttal, the prosecutor persisted in urging that the yard was a part of the dwelling despite its lack of fencing, stating: " [Dicks] most certainly entered that dwelling. He entered it by being in the backyard. He entered it by being underneath it." Again, defense counsel failed to raise an objection to the prosecutor's remarks.
At the close of the arguments, the trial court read the approved standard jury instructions concerning burglary of a dwelling. They included the following instruction regarding a dwelling:
Dwelling means a building of any kind, whether such a building is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the enclosed space of ground and outbuildings immediately surrounding it. For purposes of burglary, a dwelling includes an attached porch or attached garage.
See Fla. Std. Jury Instr. (Crim.) 13.1 (emphasis added). Additionally, at the outset of the trial, as well as just before closing arguments, the jury was instructed that what the lawyers would say was not evidence and was not to be considered as such. At the ...