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Clark v. State

Florida Court of Appeals, Fourth District

January 24, 2018

BOBBY LEE CLARK, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John S. Kastrenakes, Judge; L.T. Case No. 502015CF009659A.

          Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.

          Gerber, C.J.

         The defendant appeals from his conviction for burglary of a dwelling while wearing a hood or mask. The defendant argues, among other things, that the trial court erred when it denied his motion for judgment of acquittal on the "hood or mask" enhancement, because the evidence showed that the defendant's shirt was pulled over only the back of his head, and did not cover his face. We disagree with the defendant's argument, because under the plain language of section 775.0845, Florida Statutes (2016), it is not necessary that the hood, mask, or other device cover an offender's face. Instead, under the statute, the factfinder simply considers "if, while committing the offense, the offender was wearing a hood, mask, or other device that concealed his or her identity." (emphasis added). We affirm the conviction.

We present this opinion in three parts:
1. the state's trial evidence;
2. the trial court's denial of the defendant's JOA motion; and
3. our review.

          1. The State's Trial Evidence

         On the night of the incident, the victim's neighbor heard the victim's home security alarm sounding. The neighbor knew that the victim was not home because the victim was at the hospital visiting her husband. The neighbor yelled to her family about the alarm and ran outside.

         Once the neighbor was outside, she heard the victim's front side door shut and saw the defendant exit from the door. The defendant had a shirt pulled over the back of his head. The shirt did not cover the defendant's face. As the defendant walked away from the victim's home, he removed the shirt from his head. The neighbor noted that the victim had a security camera positioned over the door from which the defendant exited.

         As the defendant walked down the victim's driveway, the neighbor's daughter's boyfriend came up to the victim's home. The neighbor told the defendant to stop, and the boyfriend told the defendant he already was calling 911. The defendant continued walking across the street towards an apartment complex. The boyfriend followed the defendant until the defendant reached an apartment, where the defendant began banging on a door. ...


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