NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
MICHAEL SHANE O’NEILL
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
ORDER AND OPINION
MATTER is before the Court on the defendant, Michael O’Neill’s, appeal from a
judgment and sentence entered against him by the
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.
was a major dispute during the trial about the location of the boundary between
Baywalk property and public property.  The
State must show, by direct or circumstantial evidence, that the accused was on
property owned or lawfully possessed by another. See
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.
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 (
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.
AND ORDERED in
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.
 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.