D.R. v. State
1999 Fla. App. LEXIS 5626, 734 So. 2d 455 (1999)
Rule of Law:
When a defendant offers evidence of consent as an affirmative defense to burglary, the burden shifts to the State to disprove consent beyond a reasonable doubt, requiring clear communication of any consent withdrawal; additionally, a criminal conviction cannot rest solely on a prior unsworn inconsistent statement of a witness who subsequently recants under oath.
Facts:
- Prior to September 19, 1997, D.R. (a 17-year-old) had lived with Eric Brandon and his family for about two weeks, initially in Brandon's car and then on the family couch in their trailer, after Marcus introduced D.R. to Brandon.
- On one occasion, Brandon locked his keys in the residence and asked D.R. to crawl through a previously ripped window in the baby's room to open the front door.
- On Friday, September 19, Brandon informed D.R. that the power had been cut off, the family was moving out of the trailer to Quincy, and Brandon offered to drop D.R. off somewhere, but D.R. chose to walk to a friend's house.
- Brandon and his family then locked the trailer and left for the weekend, intending to return on Monday, September 22, to retrieve more belongings that their small car could not carry.
- D.R. testified that Brandon told him he could return to the trailer over the weekend to get his clothes from the back part of the residence, which Brandon knew were still inside, and that Brandon had left the front door unlocked.
- On Saturday, September 20, D.R. and a friend went to Brandon's trailer, and D.R. entered to retrieve his personal belongings.
- Upon returning on Monday, September 22, Brandon discovered his $800 stereo, a $30 cellular phone, and some jewelry were missing from the trailer, and a window in his son's bedroom had been forced open.
- Andrew returned the cellular phone to Brandon on Monday, September 22, after initially telling Marcus (who then told Brandon) that D.R. had given him the phone, but later testifying under oath that he received it from someone else and implicated D.R. out of fear of getting in trouble for marijuana.
Procedural Posture:
- The State filed an amended petition in the trial court, alleging that D.R. committed burglary of a dwelling (Count One) and grand theft (Count Two).
- The trial court adjudicated D.R. delinquent for both offenses and committed him to a Level 6 boot camp.
- D.R. appealed the ruling of the trial court to the Florida First District Court of Appeal.
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Issue:
1. Does the State fail to meet its burden of disproving the affirmative defense of consent beyond a reasonable doubt for a burglary charge when the alleged victim's testimony regarding withdrawal of consent is equivocal and not clearly communicated to the defendant? 2. Can a conviction for grand theft be sustained beyond a reasonable doubt based solely on a witness's prior unsworn inconsistent statement that is later recanted under oath?
Opinions:
Majority - Browning, J.
Yes, the State failed to meet its burden of disproving the affirmative defense of consent beyond a reasonable doubt for the burglary charge because Brandon's testimony regarding withdrawal of consent was equivocal and not clearly communicated to D.R. D.R. admitted the first element of burglary, knowing entry, but denied the second (knowledge of unpermitted entry) and third (criminal intent). Consent to enter is an affirmative defense to burglary. Once D.R. offered evidence to establish consent (his testimony that Brandon explicitly permitted him to enter the residence to retrieve his clothing and had left the front door unlocked), the burden shifted to the State to disprove that consent beyond a reasonable doubt (citing Hansman v. State and Coleman v. State). Brandon’s testimony that it was “a fair statement” that D.R. was not permitted to be in the residence merely indicated Brandon's own belief and state of mind, failing to demonstrate that consent, once given, was ever expressly or implicitly withdrawn and communicated to D.R. The prosecutor's failure to elicit a clearer response on cross-examination regarding explicit communication of consent withdrawal left the State's burden unsatisfied. Therefore, the State failed to prove D.R.'s knowledge that his entry was without permission. No, a conviction for grand theft cannot be sustained beyond a reasonable doubt based solely on a witness's prior unsworn inconsistent statement that is later recanted under oath, which consequently means the criminal intent element of burglary also fails. The sole evidence linking D.R. to the stolen cellular phone was Andrew's initial unsworn comment to Brandon, made without safeguards for reliability or truthfulness. Andrew later totally recanted this statement under oath at the adjudicatory hearing, explaining he received the phone from someone else and implicated D.R. out of fear of personal legal trouble. A criminal prosecution cannot sustain guilt beyond a reasonable doubt based solely on a prior inconsistent statement of a recanting witness (citing Green v. State and State v. Moore). Without the stereo ever being found or linked to D.R., and Andrew's statement being insufficient, the State failed to present competent evidence to prove grand theft. The third element of burglary—criminal intent to commit an offense within the dwelling—was interrelated with the grand theft charge. The absence of competent evidence to prove D.R.'s theft, and the lack of evidence of stealthy entry to infer intent, meant the State failed to prove criminal intent for the burglary charge. Accordingly, the adjudication of delinquency for both counts must be reversed.
Concurring - Miner, J.
Concurred with the majority opinion.
Concurring - Benton, J.
Concurred with the majority opinion.
Analysis:
This case significantly clarifies the burden of proof when an affirmative defense of consent is raised in burglary cases, requiring the State to present clear and convincing evidence that consent was unequivocally withdrawn and communicated to the defendant. It also reinforces critical evidentiary standards, holding that a criminal conviction cannot rely solely on a prior, unsworn, and subsequently recanted witness statement, particularly when the witness's motive for the initial statement is questionable. This decision emphasizes the importance of reliable evidence and clear communication in establishing the elements of a crime, impacting prosecutorial strategies by demanding robust corroborating evidence beyond unsworn hearsay, especially when the defendant offers a plausible defense.
