County Criminal Court: CRIMINAL LAW --- Jury trial - Evidence --- Motion for judgment of acquittal should have been granted in defendant’s trespassing case where State failed to demonstrate that the defendant was on the property of another. Judgment and sentence reversed. O’Neill v. State, No. CRC 06-31 APANO, (Fla. 6th Cir. App.Ct. March 28, 2008).















v.                                                                                                                                          Appeal No. CRC 06-31 APANO








Opinion filed ____________________.


Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Donald E. Horrox


J. Jervis Wise, Esquire

Attorney for appellant


Kate A. Alexander, Esquire

Assistant State Attorney




            (J. Demers)


            THIS MATTER is before the Court on the defendant, Michael O’Neill’s, appeal from a judgment and sentence entered against him by the Pinellas County Court following his trespass conviction by a jury. After reviewing the briefs and record, this Court reverses the judgment and sentence because the trial court should have granted the defendant’s motion for judgment of acquittal. The standard of review for a denial of a motion for judgment of acquittal is de novo. Higgins v. State, 889 So.2d 743, 765 (Fla. 2004).

            The defendant was charged with trespassing while demonstrating at the Baywalk entertainment complex one Saturday night. There were numerous demonstrators, and several Baywalk security personnel and police were there to make sure the demonstrators stayed on the sidewalk and did not enter Baywalk property. At some time during the demonstration, the defendant, on two occasions, apparently wandered quite a few feet onto the Baywalk property with a video camera and was asked to leave by a security guard for Baywalk. He was not, however, being prosecuted for those excursions. When the security guard saw the defendant on Baywalk property again, he asked the officer to give the defendant a trespass warning. After the officer gave the defendant a trespass warning, the officer saw the defendant two to three feet beyond what he believed was the property line --- beyond an imaginary line connecting rivets placed in the ground. That observation was the basis for the prosecution.    

            There was a major dispute during the trial about the location of the boundary between Baywalk property and public property.  [1] The State must show, by direct or circumstantial evidence, that the accused was on property owned or lawfully possessed by another. See Fla. Std. Jury Instr. (Crim.) 13.4. Ordinarily, that does not require any proof of where the property line is located. For example, a homeowner may say: “I bought this house and I presently own it and (the defendant) was standing on my front porch.” That would be admissible direct evidence from a person with personal knowledge, and it would be sufficient to establish a prima facie case. Or a security person, or for that matter a customer, at a mall may say: “I saw (the defendant) standing in the middle of the mall. He was surrounded by stores and was 100 feet from the public sidewalk.” That would be circumstantial evidence and would permit one reasonable inference --- the defendant was on private property, not public property. That too would be sufficient to establish a prima facie case. In the case at bar, the situation was not as clear and established as those in the foregoing scenarios.

            There was no admissible direct evidence that the defendant was on the property of another at the time in question. Instead, the State relied solely on inadmissible lay testimony not based on personal knowledge. There was insufficient foundation to establish that the security guard knew where the Baywalk property line was. The security guard said that the boundary was where the rivets were located. He claims to know that because of his training. If his testimony was treated as that of a fact witness, “training” would be nothing more than a euphemism for hearsay. That is an out-of-court statement introduced to prove the truth of the statement. In any event, the security guard’s testimony was not admissible to establish that the defendant was on the wrong side of the line. The State never suggested he was an expert or sought to introduce his testimony as an expert. Since it was not based on personal knowledge, his testimony was inadmissible as lay opinion.

            The only other testimony the State presented was that of the arresting officer. He also testified that the rivets established the boundary. But the State presented even less testimony about how the officer had this knowledge. There was no evidence at all that he was involved in placing the rivets or that they were correctly placed. There is not even a pretense that he was giving opinion testimony, and there should not be. It leaves us once again with hearsay as the sole basis for establishing that the property where the defendant was located at the time of the alleged offense was owned or lawfully possessed by another. At best, the State presented circumstantial evidence that the defendant was on the property of another.

            Although a motion for judgment of acquittal should be granted only where the evidence is such that there is no view which the jury could lawfully take favorable to the State that could be sustained, a special standard of review applies when proof of one or more of the elements of the offense depends entirely on circumstantial evidence. Linn v. State, 921 So.2d 830 (Fla. 2d DCA 2006).  In such a case, a motion for judgment of acquittal should be granted if the state fails to present evidence from which the jury could exclude every reasonable hypothesis except that of guilt. Id., citing State v. Law, 559 So.2d 187 (Fla. 1989). More precision is required under these circumstances, but the State failed to produce such precision. The defendant was in a location where the property line became critical. There was no admissible evidence of that property line. The circumstances were as consistent with the defendant’s claim that he was on public property as they were with the State’s claim that he was on Baywalk property.  In short, there was insufficient circumstantial evidence that the defendant was on the property of another.

            As noted by the defendant, the State failed to: (1) call a qualified witness to testify about the property line; (2) offer documentary evidence to establish the property line; or (3) seek judicial notice of the property line. Because an element of the crime --- that the defendant remained on Baywalk property --- was not demonstrated by competent evidence, direct or circumstantial, the defendant’s motion for judgment of acquittal should have been granted. This Court need not reach the defendant’s second issue because its ruling on the first issue is dispositive.

            IT IS THEREFORE ORDERED that the judgment and sentence is reversed, and this case is remanded to the trial court with instruction that the defendant be discharged.

            DONE AND ORDERED in Clearwater, Pinellas County, this _____ day of March, 2008.


                                                                                    David A. Demers

                                                                                    Circuit Court Judge




                                                                                    Raymond O. Gross

                                                                                    Circuit Court Judge




                                                                                    Robert J. Morris, Jr.

                                                                                    Circuit Court Judge

cc:        Office of the State Attorney


            Honorable Donald E. Horrox


                        J. Jervis Wise, Esq.



[1] This Court notes that the defendant apparently abandoned his argument that the State failed to prove he

willfully remained over the property line because he failed to raise it in his briefs.