Memorandum of Law – Burglary


COMES NOW the Defendant, by and through his undersigned counsel, and hereby files this Memorandum of Law, and in support thereof, states as follows:

1. Burglary Tools

Florida Statute 810.06, entitled Possession of Burglary Tools, states the following:
Whoever has in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree.

It is our understanding that this is the statute that the State would intend to charge the Defendant under. While not all statutes have pattern jury instructions, Possession of Burglary Tools does have pattern jury instructions, which state the following:
To prove the crime of Possession of Burglary Tools, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) intended to commit a burglary or trespass.

2. (Defendant) had in [his] [her] possession a [tool] [machine] [implement] that [he] [she] intended to use, or allow to be used, in the commission of the burglary or trespass.

3. (Defendant) did some overt act toward the commission of a burglary or trespass.

Florida Pattern Jury Instruction 13.2. Respectfully, absent evidence unknown to us at this time, the State would have difficulty proving any of these three elements.
From a review of the pertinent police reports, it is our understanding, as well as the understanding of the Sheriff’s Office, that the Defendant was a passenger in a vehicle, while another individual committed a burglary at a nearby business. Furthermore, there were reports that there was an alarm that may have spooked the burglar, or that the burglar was able to hear police sirens and fled. It was also stated that law enforcement officers observed an unknown individual (though they may believe they know who that is now) approach the vehicle that the Defendant was in, see law enforcement, and then flee, all prior to entering the vehicle.
Turning to the first element, there is no evidence that the Defendant intended to commit a burglary or a trespass. Factually, this is accurate, as the Defendant never intended to commit such an offense. Indeed, based on our understanding of the facts and the theory of law enforcement, the burglary had already been completed prior to the tools being in the vehicle with the Defendant. Clearly, there is no admissible evidence that the Defendant intended to commit a burglary or trespass. This ties in to the second element as well.
With regard to the second element, there are three issues. First and foremost, the possession requires a future intent to commit a burglary or trespass. Possession of Burglary Tools, statutorily, punishes an individual for possessing tools with the intent that they are used to commit a future offense. The Possession of Burglary Tools statute does not punish an individual for possessing tools that have been used in an already completed burglary. Based on our understanding of the allegations, the burglary was a fait accompli, and the burglar had already fled the scene. Once the tools were in the vehicle, there was no burglary or trespass that was intended to be committed at that point.
Factually, there are two other issues with regard to the second element. All of this is with the caveat that we have not reviewed the video, nor have we spoken to all of the witnesses that the State has spoken to. Primarily, it is our understanding is that the burglar fled at the sound of police sirens, attempted to reach the vehicle where the Defendant was sitting, but ran away before reaching the vehicle. It makes no logical sense that a burglar, fleeing the encroaching sounds of sirens, would pack his tools into a backpack and walk away from a vehicle where he could have easily driven away from, only to later attempt to return to the vehicle. Thus, even assuming the theory of the Sheriff’s Office as entirely accurate, it seems highly unlikely that any tools found in the vehicle would belong to the burglar, or have been used in the burglary attempt that has been alleged.
If the burglar had time to return to the vehicle and pack the tools away, the burglar would have had time to flee in the vehicle. If the burglar did not have time to flee in the vehicle, the burglar would have kept the tools in his or her possession. This second outcome is far more likely, based on the Sheriff’s Office report, that an individual was attempting to approach the vehicle and law enforcement chased that person away. It makes no sense that the tools would have made it into a backpack and into the vehicle, but the burglar would have left on foot, rather than in the vehicle, and then made a subsequent approach to the vehicle.
The second factual issue has to do with possession. Although some objects may have been in view, it is our understanding that the burglary tools were discovered in the backseat of the vehicle, not near the Defendant, and in a closed container (a backpack). There are clear issues of actual and constructive possession given that scenario, particularly where the objects are not in and of themselves unlawful (unlike a drug possession). Thus, even if the State were not required to prove the other two elements, or the future conditional requirements of possession of the tools, it is still factually difficult to prove that the Defendant actually or constructively possessed anything in the backpack.
Finally, the third element requires that the defendant, rather than another individual, commit an overt act toward the commission of a burglary or a trespass. This fails for two reasons. First, the burglary (and again, assuming for the sake of the argument, the Sheriff’s Office’s understanding of events) had already been completed, so no overt act was left to commit. Second, and more importantly, the Defendant did not commit any overt act, much less an overt act in furtherance of a burglary or a trespass. This requires both an intent to commit a burglary, and an act in furtherance of that burglary, neither of which are present in this case. The Florida Supreme Court has held “the specific intent to commit a burglary or trespass using tools, instruments or machines in the defendant’s possession or control exists when he or she engages in or causes some overt act toward the commission of the burglary or trespass, which goes beyond merely thinking or talking about it.” Thomas v. State, 531 So. 2d 708, 710 (Fla. 1988).
A review of the case law, which is uniform among the districts and binding, makes it clear that the tools must be possessed with intent to commit a future burglary or trespass. “In Thomas v. State, 531 So. 2d 708, 709 (Fla.1988), our supreme court concluded that the burglary tool statute, section 810.06, Florida Statutes, describes and prohibits a crime in the nature of an attempt. The statute criminalizes an attempt to commit a burglary or trespass, which is discerned from possession of the tools, coupled with the accused’s intent to use the tools in the commission of a crime.” A.J.R. v. State, 726 So. 2d 326, 327 (Fla. 2d DCA 1999).
“Under binding precedent, where tools are not employed or intended to be used to gain entry, their possession is not the crime of possession of burglary tools.” Fortson v. State, 179 So. 3d 414, 414 (Fla. 1st DCA 2015) citing Calliar v. State, 760 So. 2d 885, 886–87 (Fla.1999). “The offense of possession of burglary tools requires proof that the defendant used or intended to use the tools in the course of unlawfully entering the premises of another, which is not satisfied by proof that the defendant intended to use the tools to commit an offense after entering the premises.” Hardwick v. State, 16 So.3 d 1045, 1046 (Fla. 1st DCA 2009). Further, the tools cannot be possessed where the burglary or trespass had already been committed.
In this case, there is simply no evidence the Defendant possessed any tools that she personally intended to use to commit a future burglary, nor is there any evidence she took an overt act to commit a burglary. At best, there is evidence that tools, that had already been used in this burglary, or another burglary, were in the vehicle with the Defendant. As a matter of law, this is insufficient evidence on every element necessary to prove the crime of possession of burglary tools.

2. Accessory After the Fact

The State is considering charging the Defendant with accessory after the fact, pursuant to Florida Statute 777.03. We are not aware of any actions the Defendant is alleged to have engaged in, after the completion of the burglary, that would aid or assist the individual who had committed the felony, as required by said statute and the pattern jury instructions.
Based on what the State has informed us, as well as the theory of the Sheriff’s Office, is that the Defendant would be guilty as an accessory after the fact because she drove the burglar to the location, or alternatively, that she may have driven the individual away. As previously discussed, there is no evidence that the Defendant was aware that a burglary to a structure was planned or taking place. Assuming the accuracy of the Deputy Sheriff’s report (parts of which the Defendant disputes), the Defendant made plain that she drove the car to the area, dropped one or more individuals off, but that she is kept in the dark about what they may be doing, whether it is legal or not, and what specifically was to take place.
Legally, this cannot make the Defendant an accessory. Either she was aware that a burglary was to take place and is potentially a principal (which there is no evidence to suggest happened), or she provided unlawful assistance afterwards, and is an accessory after fact. We will turn and discuss those in order.
Florida Statute 777.011 provides the legal definition of a Principal in First Degree, which states:
Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.

“To be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.” Watkins v. State, 826 So. 2d 471, 474 (Fla. 1st DCA 2002) citing Banks v. State, 790 So. 2d 1094, 1098 n. 2 (Fla.2001). As these cases have held, an individual has to either (with knowledge of the crime to be committed), commit “some act or said some word that was intended to and did incite or cause another individual to” commit the intended crime. Id. There is no evidence to support such a theory in this case.
The jury instructions, found under Principals, 3.5(a), states the following:

If the defendant helped another person or persons [commit] [attempt to commit] a crime, the defendant is a principal and must be treated as if [he] [she] had done all the things the other person or persons did if:

1. the defendant had a conscious intent that the criminal act be done and

2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually [commit] [attempt to commit] the crime.

To be a principal, the defendant does not have to be present when the crime is [committed] [or] [attempted].

Indeed, even if there were evidence that the Defendant knew a burglary was to take place (which she did not and there is no evidence to suggest otherwise), the rule is clear that “mere knowledge that an offense is being committed is not the same as participation with the requisite criminal intent.” C.P.P. v. State, 479 So. 2d 858, 859 (Fla. 1st DCA 1985). While the Defendant may have been nearby, “presence at the scene of the offense and flight from the scene are insufficient to establish participation.” Id. This is even more applicable where the Defendant did not flee, but stayed and spoke with law enforcement. Courts have held that there is insufficient evidence to proceed to a jury where the “only evidence presented at trial which tied appellant in any way to the offenses charged was a statement voluntarily given by appellant to law enforcement officers shortly after the offenses had been committed” placing them at the scene. Evans v. State, 643 So. 2d 1204, 1205 (Fla. 1st DCA 1994).
“In Staten v. State, 519 So.2d 622, 624 (Fla.1988), the Florida Supreme Court acknowledged . . . that neither knowledge that the offense is being committed nor mere presence at the scene nor a display of questionable behavior after the fact is equivalent to participation with criminal intent.” West v. State, 585 So. 2d 439, 441 (Fla. 4th DCA 1991). In West, not only was the individual present, but was found to be “driving the car, along with his later attempts to hide the guns.” Id. In that case, the court rejected the State’s argument that such evidence was sufficient, as there was no evidence to establish that the defendant was aware of the exact criminal nature of the attempt.
The court further held that while “evidence of intent may be circumstantial, it must exclude every reasonable inference that the defendant did not intend to participate in criminal activities.” Id. citing W.B. v. State, 554 So. 2d 577, 578 (Fla. 3d DCA 1989); Shockey v. State, 338 So. 2d 33, 35 (Fla. 3d DCA 1976). In this case, there is no evidence to rebut the Defendant’s denial that she knew what activities, criminal or not, were taking place.
In a case far more egregious than this, the “court concluded that the defendant’s conduct in driving the actual perpetrator to the scene of the crime in combination with other questionable after-the-fact behavior was insufficient to sustain a conviction even though such evidence might suggest guilt. Such evidence was held to be insufficient as a matter of law to exclude a reasonable hypothesis of [defendant]’s innocent presence at the scene that could be drawn from the same evidence.” Id. citing Stuckey v. State, 414 So. 2d 1160, 1161 (Fla. 3d DCA 1982).
In another similar case, the appellate court discharged the case, finding that “although [defendant] drove one of the robbers to the scene of the crime and picked them both up afterwards, these naked facts are plainly circumstantially insufficient, even absent her uncontradicted denial from the witness stand that she had any previous knowledge of the crime.” E.H. v. State, 452 So. 2d 664, 665 (Fla. 3d DCA 1984). Thus, even absent the Defendant’s statement, there is insufficient circumstantial evidence to rebut that she was an innocent bystander or did not otherwise participate in the criminal activity.
In cases where the driving occurs afterwards, courts have held that such evidence is insufficient. Courts have held that “evidence that the defendant drove the getaway car from the scene of the burglary at the burglar’s request, without more, was insufficient to convict.” Smith v. State, 502 So. 2d 77, 78 (Fla. 3d DCA 1987). “Mere knowledge that an offense is being committed is not the same as participation with criminal intent, and mere presence at the scene, including driving the perpetrator to and from the scene or a display of questionable behavior after the fact, is not sufficient to establish participation.” Collins v. State, 438 So. 2d 1036, 1038 (Fla. 2d DCA 1983). Thus, absent additional, compelling evidence, there is insufficient evidence to charge the Defendant as a principal to a burglary.
Additionally, the only evidence that the Defendant drove is not admissible under the corpus delecti rule. J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998); Finney v. State, 550 So. 2d 1194, 1195 (Fla. 1st DCA 1989) (“The corpus delicti of a crime essentially consists of showing both the fact that the crime charged has been committed and that some person is criminally responsible for it.”). Outside of her statements, as the Defendant was found in the passenger seat, there is no evidence that the Defendant even drove the vehicle. Because her statements alone are not admissible where they are the only evidence to establish an element of the offense, even disregarding the lack of evidence that she knew and aided in the offense, her statements regarding driving are inadmissible. Thus, there is truly no evidence to support the filing of such a charge, as it could never lawfully go before a jury.
While the State has indicated that the behavior of driving the purported burglar to the general area of the burglary would be sufficient to support an accessory charge, we also wanted to address a charge of accessory after the fact. That crime, found at Fl. Stat. 777.03, is a separate and distinct offense. That statute, in pertinent part, states the following:
Any person . . . who maintains or assists the principal or an accessory before the fact, gives the offender any other aid, knowing that the offender had committed a crime and such crime was a third degree felony, or had been an accessory thereto before the fact, with the intent that the offender avoids or escapes detection, arrest, trial, or punishment, is an accessory after the fact.
As with the other offenses discussed above, the jury instruction for said offense, found at 3.5(c) state the following:
To prove the crime of Accessory After the Fact, the State must prove the following four elements beyond a reasonable doubt:

1. A (felony alleged) was committed by (name of person committing felony).

2. After the (felony alleged) was committed, (defendant) [maintained] [assisted] [aided or attempted to aid] (name of person committing felony).

3. At that time, (defendant) knew that (name of person committing felony) had committed the (felony alleged).

4. (Defendant) did so with the intent that (name of person committing felony) avoid or escape detection, arrest, trial, or punishment.

In this case, the alleged felony would be a burglary. In order to commit this offense, the State would be required to prove the above four elements. With regard to the first element, based on our research, we have little doubt that the State could prove that a burglary occurred. However, the State would be required to prove that the Defendant not only committed an affirmative act, but she did so after the burglary had been committed and with knowledge that a burglary had been committed.
Our understanding, from our research and review of the arrest report, is that the Defendant is not alleged to have taken any actions subsequent to the burglary. Additionally, the only evidence that the Defendant was aware that a burglary occurred is because at some point, law enforcement officers informed her that a burglary had occurred. It is a requirement that a defendant actually know what crime had been committed, because the degree of the offense is dependent on the degree of the underlying charge. Wilson v. State 824 So. 2d 335 (Fla. 4th DCA 2002).
Importantly, the Defendant committed no actions to assist anyone after the completion of the burglary. Law enforcement approached the vehicle before anyone else entered the vehicle. The Defendant remained with the vehicle and did not drive anyone away. There is no direct or circumstantial evidence that the Defendant committed an act to help anyone she knew to have committed a felony to escape.