4D12-1156 - Fourth District Court of Appeal

January Term 2014
J.B., a child,
No. 4D12-1156
[March 5, 2014]
We grant appellant’s motion for rehearing, vacate our prior opinion, and
substitute the following in its place.
A juvenile appeals her adjudication for petit theft. She claims that the
court erred in allowing a store security officer to testify as to another
officer’s statement that the appellant had committed a theft of store
merchandise. We agree with the appellant that this was inadmissible
hearsay. Further, because this was the only evidence of theft, the
appellant’s confession was likewise inadmissible because the state failed
to prove the corpus delicti of the crime. For these reasons, we reverse.
Appellant, J.B., was charged with petit theft of “fashion jewelry” from
JCPenney, in violation of section 812.014(1)(a) and (3)(a), Florida Statutes
(2011). At the trial on the charge, the state notified the court that neither
the store manager nor the store security officer, who allegedly witnessed
the theft, was available to testify, as they no longer worked for the store.
The state then called the arresting officer, who testified that he had been
called to the store to investigate a shoplifting incident involving a girl
taking a bracelet. He arrested J.B. based on an affidavit from the
unavailable store security officer. The arresting officer had not personally
witnessed the theft.
A current security officer at JCPenney testified, over a hearsay
objection, that the absent security officer told him that J.B. had put a
bracelet on her wrist and left the store. The testifying officer went with his
co-worker to approach J.B., who was standing just outside the store. They
took her to a back office and called their manager. There, they filled out a
form for J.B. to sign which was an “acknowledgment of guilt.”
When the state moved to introduce the form, J.B. objected on the
grounds of corpus delicti. She argued that there was no evidence, other
than hearsay, of the crime of theft, because neither the arresting officer
nor the testifying store security officer had seen the theft. The court denied
the motion. On cross-examination, the store security officer admitted that
the acknowledgment of guilt form was not signed by J.B. but only by his
co-worker, the absent store security officer. Furthermore, he could not
recall exactly what occurred in the filling out of the acknowledgment form.
After presentation of the evidence, the defense moved for a judgment of
dismissal, which was denied. The court found J.B. guilty, withheld
adjudication, and issued a stern judicial warning. J.B. appeals.
Although “[t]he standard of review for admissibility of evidence is abuse
of discretion[,] . . . a trial court’s discretion is limited by the rules of
evidence” and “[w]hether or not [a] statement is hearsay is a legal question
subject to de novo review.” Padgett v. State, 73 So. 3d 902, 904 (Fla. 4th
DCA 2011) (quoting Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA
2001), and K.V. v. State, 832 So. 2d 264, 265-66 (Fla. 4th DCA 2002)).
The store officer’s recitation of his co-worker’s statement that J.B. took
the store bracelet is classic hearsay. It is “a statement, other than one
made by the declarant while testifying at the trial . . . offered in evidence
to prove the truth of the matter asserted.” § 90.801(1)(c), Fla. Stat. (2011).
This hearsay statement was the only evidence of the theft, other than the
alleged acknowledgment of guilt form, which was not signed by J.B. Thus,
its admission was not harmless.
On appeal, however, the state seeks to justify the hearsay statement’s
admission as necessary to establish a logical sequence of events in the
investigation of the theft. We reject this rationale, as we did of similarly
prejudicial testimony in Saintilus v. State, 869 So. 2d 1280 (Fla. 4th DCA
2004). There, we held that the trial court erred in allowing two detectives
to testify that: (1) in interviewing witnesses, a detective learned the
nickname of a suspect; and (2) someone from the police told a detective
that the defendant had that nickname. Id. at 1281-82. We admonished
the state for the use of rank hearsay:
In spite of substantial authority condemning this attempt
to adduce prejudicial hearsay, the state often persists in
offering this kind of hearsay to explain the “state of mind” of
the officer who heard the hearsay, or to explain a logical
sequence of events during the investigation leading up to an
arrest. This type of testimony occurs with the persistence of
venial sin. The state’s insistence on attempting to adduce this
particular brand of hearsay requires trial judges to be
constantly on their guard against it.
. . . The only purpose of this testimony was to admit these
hearsay statements to link defendant to the crimes, even
though such hearsay is clearly inadmissible.
Id. at 1282 (emphasis added); see also State v. Baird, 572 So. 2d 904, 908
(Fla. 1990) (finding evidence introduced to show logical sequence of events
should not have been admitted and noting “the inherently prejudicial effect
of an out-of-court statement that the defendant engaged in the criminal
activity for which he is being tried”); K.V., 832 So. 2d at 266 (finding
erroneous admission of hearsay statement was not harmless error where
“the statement is clearly incriminating and was presented by the only
witness identifying [the defendant] as the perpetrator”). Just as in
Saintilus, the only purpose of the evidence was to link J.B. to the crime. It
was not necessary to prove a logical sequence of events. It was hearsay
and inadmissible.
Without the hearsay statement of the absent security officer, the state
also failed to prove the corpus delicti of the petit theft prior to introducing
J.B.’s alleged confession through the acknowledgment of guilt form. The
trial court’s admission of a confession over a corpus delicti objection is
reviewed for an abuse of discretion. Bribiesca-Tafolla v. State, 93 So. 3d
364, 366-67 (Fla. 4th DCA 2012).
The state must present evidence of the corpus delicti of a crime, namely
the legal elements necessary to show a crime was committed, before the
defendant’s confession to that crime may be admitted. State v. Allen, 335
So. 2d 823, 825 (Fla. 1976) (“A person’s confession to a crime is not
sufficient evidence of a criminal act where no independent direct or
circumstantial evidence exists to substantiate the occurrence of a crime.”).
This court addressed the doctrine of corpus delicti in Snell v. State, 939
So. 2d 1175 (Fla. 4th DCA 2006):
“Ordinarily, proof of the corpus delicti of the crime charged is
required before a confession or admission against interest
may be received in evidence.” Garmon v. State, 772 So. 2d 43,
46 (Fla. 4th DCA 2000). Specifically, the state has to prove:
(1) that a crime of the type charged was
committed; and (2) that the crime was committed
through the criminal agency of another. In regard
to the first part—that a crime was committed—
each element of the relevant offense must be
shown to exist. With respect to the second part—
the criminal agency of another—the proof need
not show the specific identity of the person who
committed the crime. That is, it is not necessary
to prove that the crime was committed by the
Franqui v. State, 699 So. 2d 1312, 1317 (Fla. 1997) (citations
omitted). The primary function of this requirement is to
protect the defendant “from being convicted of a nonexistent
crime due to ‘derangement, mistake or official fabrication.’ ”
Baxter v. State, 586 So. 2d 1196, 1198 (Fla. 2d DCA 1991)
(quoting State v. Allen, 335 So. 2d 823, 825 (Fla. 1976)).
Id. at 1178-79. “The state’s burden in establishing the corpus delicti for
an admission is far below its burden for a conviction” and “[c]ircumstantial
evidence may be offered to satisfy” it. Id. at 1179; see also Allen, 335 So.
2d at 825 (reaffirming “that circumstantial evidence may be presented
prior to admission of a defendant's confession in order to establish the
occurrence of the necessary elements of the alleged crime”).
J.B. was charged with petit theft under sections 812.014(1)(a) and
(3)(a), Florida Statutes (2011). The elements of petit theft are “[1]
knowingly obtaining or using, or endeavoring to obtain or use, [2] the
property of another [3] with intent to either temporarily or permanently . .
. [d]eprive the other person of a right to the property or a benefit from the
property . . . .” A.M. v. State, 755 So. 2d 759, 760 (Fla. 4th DCA 2000)
(interpreting 1999 version of statute with identical petit theft provisions).
In this case, the state argues there was circumstantial evidence of a theft
because J.B. was seen outside the JCPenney entrance while wearing a
bracelet currently being sold in the store. Yet this is insufficient to prove,
even circumstantially, that a theft had occurred, because this evidence is
equally consistent with a theory that J.B. had previously purchased the
bracelet from JCPenney (or received it as a gift), making it her property.
See id. at 760 (element of theft is taking the property of another); see also
R.L.B. v. State, 703 So. 2d 1245, 1246 (Fla. 5th DCA 1998) (finding corpus
delicti for burglary where there was proof the defendant did not have
permission to use the stolen golf cart). It does not tend to prove that J.B.,
or anyone else, had taken the bracelet with the required intent. See C.W.
v. State, 778 So. 2d 358, 360 (Fla. 2d DCA 2001) (state must offer evidence
that a theft had occurred before introducing a defendant’s confession).
Neither the store security officer who allegedly observed J.B. take the
property, nor the store’s manager, who could have documented with store
records that the bracelet had not been paid for, testified at trial. Because
there was no direct or circumstantial evidence, besides inadmissible
hearsay, to prove the corpus delicti of theft, the trial court erred in
admitting J.B.’s written confession.
Without the hearsay evidence or J.B.’s confession, the state failed to
prove its case. We therefore reverse and remand for the trial court to
dismiss the petit theft charge.
CONNER and FORST, JJ., concur.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos Rodriguez, Judge; L.T. Case No. 2011005418
Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.