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Elliot v. State

Florida Court of Appeals, Fourth District

April 18, 2018


         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Dennis D. Bailey, Judge; L.T. Case No. 15-005496CF10A.

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

          Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.

          Taylor, J.

         This appeal arises from two burglaries of the same residence discovered five days apart. In both incidents, the house was ransacked and property was taken. Appellant was convicted of the residential burglary count alleging property damage over $1, 000, but he was acquitted of the other residential burglary. He was also convicted of grand theft of property worth $20, 000 or more. We address appellant's argument on appeal that the trial court erred in denying his motions for judgment of acquittal because the state failed to prove: (1) the amount of the property damage alleged in the residential burglary charge, and (2) the value of the property stolen as alleged in the grand theft charge. As to the other issues raised in this appeal, we find no error.

         Appellant was charged by information in Count I with residential burglary of the victims' home between October 25, 2013 and October 28, 2013, with the intent to commit theft and causing property damage in excess of $1, 000. In Count II, appellant was charged with residential burglary of the same victims' home between November 1, 2013 and November 2, 2013 with the intent to commit theft. In Count III, appellant was charged with grand theft of property valued at $20, 000 or more from the victims' home between October 25, 2013 and November 2, 2013.

         At trial, the state presented the following evidence. On October 25, 2013, while the homeowners were away on a cruise, their son checked on their home. When he returned on October 28, 2013, he discovered that it had been burglarized. He found damage to the rear French doors and hurricane windows, items strewn all over the floor, and contents from the trunks of two vehicles on the garage floor. He called the Fort Lauderdale police, who processed the scene for evidence and took photographs. Police also found a cigarette butt containing a single DNA source sample that was later matched to appellant's DNA sample.

         On November 2, 2013, when the son returned to the house, he noticed further damage to the French doors, additional items strewn on the floor, including some of his mother's purses, and more missing items, including chinaware and a silver tea set. The son reported the burglary, and the police again processed the home and took photographs. The son told police the damage to the French doors was more extensive after the second incident such that the doors could not be secured.

         Based on information from a confidential informant, in August 2014, police obtained and served search warrants on two apartments in Fort Lauderdale-one on 19th Street and the other on 18th Court. Police found property from the victims' house in both apartments. They identified the 19th Street apartment as appellant's residence, which he shared with his girlfriend. The victims' chinaware was located at appellant's residence, dirty and stacked on the side of the kitchen sink. Police also recovered other items belonging to the victims, including dining ware, purses, binoculars, a silver urn, and jewelry. The state, however, did not specify which property of the victims was found in the 18th Court apartment, nor did it itemize the value of the items recovered from each of the apartments.

         After the two burglaries, the victims paid $3, 724 to replace the French doors and a hurricane window, and $408.10 to replace the locks after noticing that their house keys were missing. They paid to replace door handles but did not provide that receipt at trial. One of the witnesses testified that the total value of the items taken during the two burglaries was $24, 597. Of that total, $709 worth of items returned was from the first burglary and $1, 954 was from the second. The remaining $21, 934 was for items that had not been returned.

         When the state rested its case, appellant moved for a judgment of acquittal on each count. He argued that the state failed to establish that the damage resulting from the October burglary (Count I) was more than one thousand dollars and that the state had not presented actual evidence linking him to the November burglary (Count II). As to the grand theft charge in Count III, appellant argued that the state had not proven that the items found in the 19th Street residence were knowingly stolen or that appellant had anything to do with the theft of the items. The trial court denied the motion for judgment of acquittal on all charges.

         Appellant testified and also called his girlfriend's brother as a witness. The brother, who admitted he had 16 felony convictions, testified that his sister lived with appellant at the 19th Street apartment. The apartment shared its backyard with the 18th Court apartment, which belonged to a handyman. The handyman, who had access to appellant's apartment, was always doing odd jobs and could get people whatever they wanted. He would bring various items to the apartment, like a safe and jewelry.

         Appellant testified that he was not involved in burglaries. He said he was a drug dealer, who supplied drugs to the handyman in exchange for goods. However, he never asked the handyman where he obtained the ...

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