### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

BOBBY LEE CLARK

, Appellant,

v.

STATE OF FLORIDA

, Appellee

.

No. 4D 17

- 160

[ January 24, 2018 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County ; John S. Kastrenakes , Judge; L.T. Case No.

502015CF009659A

.

Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, T allahassee, and Kimberly T.

Acu ñ a , Assistant Attorn ey General, West Palm Beach, for appellee.

G ERBER

, C.J

.

The defendant appeals from his conviction for burglary of a dwelling

while wearing a hood or mask. The defendant argues, among other things,

that the trial court erred when it denied his motion for judgment of acquittal

on the “hood or mask” enhancement, because the evidence showed that

the defendant’s shirt was pulled over only the back of his head, and did

not cover his face. We disagree with the defendant’s argument, because

under the plain language of section 775.0845, Florida Statutes (2016), it is

not necessary that the hood, mask, or other device cover an offender’s face.

Instead, under the statute, the factfinder simply considers “ if, while

committing the offense, the offender was we aring a hood, mask, or other

device that concealed his or her identity .” (emphasis added). We affirm the

conviction.

We present this opinion in three parts:

1. the state’s trial evidence;

2. the trial court’s denial of the defendant’s JOA motion; and

3. our review.2 1. The State’s Trial Evidence

On the night of the incident, the victim’s neighbor heard the victim’s

home security alarm sounding. The neighbor knew that the victim was

not home because the victim was at the hospital visiting her husband.

The neighbor yelled to her family about the alarm and ran outside.

Once the neighbor was outside, she heard the victim’s front side door

shut and saw the defendant exit from the door. The defendant had a shirt

pulled over the back of his head. The shirt did not cover the defendant’s

face. As the defendant walked away from the victim’s home, he removed

the shirt from his head. The neighbor noted that the victim had a security

camera positioned over the door from which the defendant exited.

As the defendant walked down the victim’s driveway, the neighbor’s

daughter’s boyfriend came up to the victim’s home. T he neighbor told the

defendant to stop, and t he boyfriend told the defendant he already was

calling 911 . The defendant continued walking across the street towards

an apartment complex. The boyfriend followed the defendant until the

defendant reached an apartment, where the defendant began banging on

a door . When the door opened, the defendant went inside. T he boyfriend

waited outside the apartment complex until the police arrived.

When the police arrested the defendant, he had several cuts on his body

. During the investigation at the victim’s home, an officer found blood on

shattered window glass and swabbed it for DNA testing. The DNA matched

the defendant.

The victim testified that she knew the defendant because he frequently

did odd jobs for her husband. However, the defendant had never been

inside the victim’s home and he did not have permission to enter. On the

day of the burglary, the defendant came to the victim’s home and asked

about the victim’s husband. The victim told the defendant that she was

on her way to visit her husband at the hospital. Shortly after the defendant

left, the victim locked her doors and went to the hospital . The victim’s front

window was intact when she left. After the victim was at the hospital,

she received a call from her alarm company. She left the hospital and

returned home. When she arrived home, she saw her front window was

shattered and the window’s screen was torn.

The state introduced the surveillance video from the camera located

over the victim’s front side door. The v ideo shows the defendant walking

away from the door with his shirt pulled over the back of his head

.3 2. The Trial Court’s Denial of the Defendants’ JOA Motion

After the state rested its case

- in

- chief, the defendant moved for a judgment of acquittal on the “hood or mask” enhancement. The defendant

argued the state failed to present a prima facie case that the defendant wore

a hood, mask, or other device to conceal his identity, because the evidence

showed the defendant’s face was not covered.

The trial court denied the motion. In reaching its decision, the court

pointed out that the defendant used his shirt such that he would be

concealed from the camera’s view. According to the trial court, the camera

would not have captured the defendant’s face because he was walking

away

, but the camera would have captured the back of his head had the

defendant not covered it. The trial court did not believe that the

defendant’s failure to conceal his face from the neighbor was a dispositive

fact. The trial court further observed:

It’s what his intent is at the time that he conducts that

maneuver with the shirt and I think you brought out in the

case that [the maneuver] was done at the time and the

location that is critical to the camera’s eye. In other words,

where the camera was located. Because certainly when

he got away from the camera, he took [the shirt] down.

At the close of all evidence, the defendant renewed his motion for

judgment of acquittal on the “hood or mask” enhancement, based upon the

same argument he made earlier.

The trial court denied the motion, reasoning as follows:

So if we look at the enhancement statute, of course it

makes no reference to covering the face. So that’s not

required.

. . . [T]he Fifth District [in Fletcher v. State , 472

So. 2d 537 (Fla. 5th DCA 1985)]. . . used some language

which is helpful to me here. [“T]he statute is [] aimed at

criminals who employ devices either to make witnesses’

identifications of them difficult or to otherwise facilitate the

commission of a crime. This may include covering up one’s

face [;] [or] altering one’s appearance by disguise or

costume.[”] Id. at 540. So is it a concealment that is used

to facilitate the commission of the crime. And then [in

footnote 4] they talk about concealment which, of course,4 is the operative term, and they go to Webster’s dictionary

. . . it’s [“]to prevent disclosure or recognition [of : ] avoid

revelation [of : ] refrain from revealing [:] withhold knowledge

[of : ] draw attention from [: treat ] as to be so unnoticed

. . . ”]

and here, [“] to place out of sight [:] withdraw from being

observed [:] shield from vision or notice.[” Id. at 540 n.4

. ]

To shield from vision or notice. And that is the definition of

conceal and it’s a broad definition.

So let’s look at the facts of this case with those concepts

in mind. First, [the defendant] is absolutely known to the

homeowners.

. . . But at the same time, that familiarity is

the reason why [the defendant] can’t be seen on the video,

even his features, as he is leaving the house. So people are recognized who know each other by many things . . . . It

doesn’t have to be your face. It can be your gait. It can be

your voice. It can be the top of your head. In this case, [the

defendant]

. . . is bald and there are many features about his

physical make

- up that a person who knew him well could

readily recognize if it was seen on a video.

. . . So in order

for [the defendant] to hide or conceal from view physical

features of himself from those people, he decided that he

needed to cover his head.

. . .

So the Fletcher case is very instructive in that regard. It

doesn’t have to be your face. It can be covering certain

physical items of you that make it apparent to who you are

. . . but in this case it’s the covering of his head and the

covering of, you know, ears, backs of the head, things of

that nature, that someone could easily recognize. So

. . . I do find that the government has made not only a prima

facie case, but that a jury, a reasonable finder of fact, could

find that when [the defendant] . . . is putting the shirt over

the top of his head for that moment while he was under

the camera view as he was leaving the house, that he did

so with the intent to conceal his identity from people who

otherwise would have known who he was. And therefore

. . . I am denying the motion for judgment of acquittal on

that enhancement ground.

3. Our Review

This appeal followed. The defendant argues that the trial court erred

when it denied his motion for judgment of acquittal on the “hood or mask”5 enhancement, because the evidence showed that the defendant’s shirt was

pulled over only the back of his head and did not cover his face.

Our standard of review was set forth in Pagan v. State , 830 So. 2d 792

(Fla. 2002):

In reviewing a motion for judgment of acquittal, a de novo

standard of review applies. Generally, an appellate court will

not reverse a conviction which is supported by competent,

substantial evidence. If, after viewing the evidence in the

light most favorable to the State, a rat ional trier of fact could

find the existence of the elements of the crime beyond a

reasonable doubt, sufficient evidence exists to sustain a

conviction.

Id. at 803 (internal citations omitted).

Section 775.0845, Florida Statutes (2016), states, in pertinent part:

The felony or misdemeanor degree of any criminal

offense

. . . shall be reclassified to the next higher degree as

provided in this section if, while committing the offense, the

offender was we aring a hood, mask, or other device that

concealed his or her identity

.

(emphasis added).

“[T]he statute is aimed at criminals who employ devices either to

make witnesses’ identifications of them difficult or to otherwise facilitate

the commission of a crime. This may include covering up one’s face; or

altering one’s appearance by disguise or costume.” Fletcher v. State , 472

So. 2d 537, 540 (Fla. 5th DCA 1985) (emphasis added). The statute does

not require that the offender be successful in his or her attempt to avoid

identification through use of a mask, hood, or device. See generally L.D.H.

v. State , 212 So. 3 d 387, 390

- 91 (Fla. 4th DCA 2017) (juvenile violated

section 775.0845 even though juvenile used his shirt to cover his face for

only a brief amount of time). “Instead, the factfinder simply considers

the totality of the evidence to determine whether the person personally

wore a hood, mask, or other device to conceal their identity.” Id. at 390.

Here, the defendant pulled a shirt over the back of his head as he walked

away from the victim’s home, under the view of the victim’s surveillance

camera. Viewing this evidence in the light most favorable to the state, it is

reasonable to conclude that the defendant took this action to conceal his6 identity. As the trial court observed, many ways exist to identify an

offender, particularly when the offender is known to a witness. Here, the

victim personally knew the defendant because the defendant helped

the victim’s husband with odd jobs around their home. T he defendant,

likely knowing the surveillance camera’s location from his earlier visits

to the home, attempted to cover the only area of his body which would be

visible in the camera’s view

– the back of his head. As the trial court

observed, a person like the victim who knew him well could readily

recognize him on a video. So t he defendant, in order to conceal his identity

from the victim, used his shirt to cover the back of his head. Such action

constitutes competent, substantial evidence that the defendant violated

section 775.0845

.

Conclusion

As we noted in L.D.H.

, “With the growing use of home security video

technology as a crime prevention measure, it is not unreasonable to

conclude that a person intending to burglarize a dwelling would wear a

hood, mask, or other device to conceal t heir identity.” 212 So. 3d at 391.

That appears to have been the case again here. Based on the foregoing, we

affirm the trial court’s denial of the defendant’s motion for judgment of

acquittal. On the defendant’s other two arg uments, we affirm without

further discussion.

Affirmed

.

C IKLIN and L EVINE

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.