### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

R.N., a child

,

Appellant,

v.

STATE OF FLORIDA

, Appellee

.

No. 4D 17

- 3554

[ November 7, 2018 ]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County ; Michael C. Heisey , Judge; L.T. Case No.

562017CJ000168A XXXXX

.

Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant

.

Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.

K UNTZ , J

.

A juvenile appeals the circuit court’s order adjudicating him delinquent

for intentional or knowing malicious harassment or interference with a police dog. The State charged the juvenile with violating section 843.19( 4), Florida Statutes (2017), which provides that “ [a] ny person who intentionally or knowingly maliciously harasses, teases, interferes wi th, or attempts to interfere with a police dog . . . while the animal is in the performance of its duties commits ” a second

- degree misdemeanor. The issue presented is one of statutory interpretation. Is the statute directed

to a person who maliciously ha rasses or teases a police dog ? O r is it

directed to a person who maliciously harasses or maliciously teases a police dog ? Because we conclude the latter construction is the correct one

, we vacate the adjudication of delinquency and remand for dismissal of the charge.2 Background

Two officers and a K

- 9 , Kona, responded to a vehicle accident involving the juvenile. Kona’s hand l er instructed Kona to conduct an exterior

narcotics search of the vehicle. Kona conducted the exterior search and

alert ed the handler to narcotic odor. Based on Kona’s alert, the two officers

conducted an interior search of the vehicle.

When the officers began the interior search of the vehicle, the juvenile “interrupted” them, “became loud and belligerent,” and told them they “couldn’t do that.” One officer testified that the juvenile was “talking loud”

and that h e projected his voice in the direction of the dog. The other officer testified that the juvenile was “loud,” “belligerent,” and “disruptive.”

Neither officer could identify the exact words the juvenile used to distract

Kona. And at no point was the juvenile closer than five to ten feet from

Kona.

The officers warned the juvenile two times to stop distracting Kona, and they ultimately arrested the juvenile. Both officers testified they conduct ed

the search with no further interruption s or distraction s after the y arrested the juvenile

. T he entire search lasted around five minutes

.

The State charged the juvenile with violating section 843.19(4), Florida

St atutes (2017). After the State rested, the juvenile moved for a judgment

of dismissal :

Weighing the evidence most favorable to the State, the prosecutor failed to show that [Appellant] either maliciously

-

- maliciously harassed, teased, interfered or att empted to

interfere with K

- 9 Kona, so we’re asking the Court to enter an Order dismissing the petition for insufficiency of evidence.

The court denied the motion and later adjudicated the juvenile delinquent for violating section 843.19(4), Florida Statut es. The juvenile appeal s

.

Analysis

The juvenile argues the court erred in denying his motion for judgment of dismissal. We review the court’s denial of a motion for judgment of dismissal in a juvenile case de novo. D.J.D. v. State , 143 So. 3d 1115, 1118 (Fla. 4th DCA 2014) (citing A.R. v. State , 127 So. 3d 650, 653 (Fla.

4th DCA 2013)). And “ [t] he construction and application of a statute is an issue of law subject to de novo review. ” Wiley v. State , 125 So. 3d 235, 2373 (Fla. 4th DCA 2013) (citing Boca Airport, Inc. v. Fla. Dep't of Revenue, 56

So. 3d 140, 142 (Fla. 4t h DCA 2 011)).

The juvenile asserts the State failed to establish that he acted “in a knowingly malicious manner towards the police dog.” Section 843.19(4), Florida Statutes (2017), states :

Any person who intentionally or knowingly maliciously harasses, teases, interferes with, or attempts to interfere with a police dog, fire dog, SAR dog, or police horse while the animal is in the performance of its duties commits a misdemeanor of the second degree, punishable as provided in

s. 775.082 or s. 7 75.083.

§ 843.19(4), Fla. Stat. (emphasis added).

The police dog, Kona, was undeniably in the performance of its duties at the times in question. So the issue is limited to whether the juvenile had the requisite intent under the statute. That analys is revolves around

the word “maliciously

. ” First, what does it mean ? Second, where does it apply ? Finally , we apply the se answers to the case before us.

i. The Definition of Malice in Section 843.19(4), Florida Statutes

“M aliciously” is not defined in the statute

, so it “must be understood as a word of common usage having its plain and ordinary sense.” See Seese

v. State , 955 So. 2d 1145, 1149 (Fla. 4th DCA 2007) (citing State v. Hagan

, 387 So. 2d 943, 945 (Fla. 1980); State v. Mitro

, 700 So. 2d 643, 645 (Fla. 1997)).

In law, m alice can be defined in two ways. Id . (citing Reed v. State , 837 So. 2d 366, 368 (Fla. 2002)). The first is legal malice

, which “ means ‘wrongfully, intentionally, without legal justification or excuse [

. ] ’” I d

. (footnote omitted) (quoting Reed , 837 So. 2d at 368). The second is actual

malice

, which “ means ‘ill will, hatred, spite, an evil intent .” Id

. (footnote omitted) (quoting Reed , 837 So. 2d at 368)

.

We analyzed the proper application of malice in Seese

. 955 So. 2d at

1149

- 50. Seese involved the use of “ maliciously ” in section 784. 048(4), Florida Statutes (2004). Th at statute provides: “Any person who, . . . after
any . . . court

- imposed prohibition of co nduct toward the subject person

. . . , kn owingly, willfully, maliciously, and repeatedly . . . harasses . . . another person commits the offen se of aggravated stalking

. . . . ” § 784.048(4), Fla. Stat.4 We explained that we take the text of the statute “as a whole.” Seese

, 955 So. 2d at 1149. And “ considering its context and the discernible purposes of the legislature, we conclude [d] that the plain meaning of the
statutory term maliciously is legal malice .” 1 We concluded that the statute
used legal malice “ because the es sence of this entire subsection is to criminalize the stalker who violates a court order prohibiting the contact with the subject. ” Id

.

T he State argues the terms “knowingly” and “maliciously” in the stalking statute analyzed in Seese are like the terms here, and should be construed similarly. It is true that the words knowingly and maliciously appear in the statute at issue in Seese and the statute here

. But we do

not determine the defini tion of the word malice by looking at individual

words in isolat ion. We must consider the words in the statute in context

and after considering the entire statute

.

A review of section 843.19, Florida Statutes

, shows that different subsections within the section employ different terms. For example,

section 843 .19(2) provides: “ Any person who intentionally and knowingly, without lawful cause or justification , causes great bodily harm . . . upon [] a police dog . . . commits” a third

- degree felony. ( E mphasis added). Th us, section 843.19(2) specifically applies the leg al definition of malice

. In
contrast, sub section 843.19(4) , uses the terms “intentionally or knowingly maliciously harasses[.]” ( E mphasis added).

Using different terms in different portions of the same statute can

convey different meanings. In re Fa i l l a , 838 F.3d 1170 , 117 6

- 7 7 (11th Cir.

2016 ) ( “ The presumption of consistent usage instructs that ‘ [a] word or phrase is presumed to bear the same meaning throughout a text ’ and that

‘ a material variation in terms suggests a variation in meaning. ’ ” (quoting

Antonin Scalia & Bryan A. Garner, Reading Law 170 (2012)) (citing

Russello v. United States , 464 U.S. 16, 23 (1983) ) )

. We have explained that using different terms in the same statute is “strong evidence” that the

1 We note that our proper inquiry is not in to the “discernible purposes of the legislature,” but in to all the words used in the statute in their context. See, e.g.

, Pictet Overseas Inc. v. Helvetia Tr

. , - F.3d

- , No. 17

- 12279, 2018 WL 4560685, at *5 (11th Cir. Sept. 24, 2018) ( William Pryor, J., concurring) (“ [W] e must look at

all of the words in their context .” (emphasis in original)). If the law was defined by the intent of the legislature, the law may be known only in the mind of the legislators. Which, of course, leads to another question : w hich legislator’s mind

would we use to determine the int ent of the legislative body?5 terms have different meanings. Bortell v. White Mountain Ins. Group, Ltd.

, 2 So. 3d 1041, 1045 (Fla. 4th DCA 2009 ) (quoting Maddox v. State , 923 So. 2d 442, 446 (Fla. 2006)) ; see also Barber v. State , 988 So. 2d 1170,

1172

- 73 (Fla. 4th DCA 2008).

Thus, the use of the legal definition of malice in section 843.19(2), and the different use in section 843.19(4), is “strong evidence” that the definition of malice in section 843.19(4) mean s actual malice. 2 In other words, section 843.19(4) requires the State to prove beyond a reasonable

doubt that the juvenile intentionally or knowingly maliciously harasse d

Kona , meaning with “ ill will, hatred, spite, [or] an evil intent .” See Seese

, 955 So. 2d at 1149 (quoting Reed , 837 So. 2d at 368).

ii. Maliciously Modifies Each Subsequent Word

The State al so argues that the juvenile’s actions need not be malicious. The statute provides: “. . . intentionally or knowingly maliciously harasses, teases, interferes with, or attempts to interfere with a police dog . . . .” § 843.19(4) , Fla. Stat. (emphasis added). The State argues the word “maliciously” modifies only the act of harassing and not the act s of teasing

or interfer ing with a police dog. In other words, it did not have to prove malice at all, only interference.

T he State relies on Yarn v. State , 1 06 So. 3d 39 (Fla. 2d DCA 2013)

. In

Yarn , the relevant statute provided: “Any person who actually and intentionally maliciously touches, strikes, or causes bodily harm to a police dog” commits a first

- degree misdemeanor. 106 So. 3d at 41 ( quoting § 843.19(3), Fla. Stat. (2009)). Because it was undisputed that Yar n did not touch the police dog, t he Second District concluded that the State “had to prove that Yarn intentionally struck or caused harm to the police dog.”

Id . at 40

- 41. The Sec ond District did not discuss a requirement of malice

. I nstead, it held that the trial court erred in denying Yarn’s motion for judgment of acquittal because “ the State failed to prove that Yarn knew that there was a police dog in the vehicle he struck and that he intended to strike or cause harm to the police dog.” Id . at 42. So, in our case, the State argues the Second District must have construed “maliciously” to modify only “touches,” rather than also each other verb.

2 This construction, defining malice in section 843.19(4) as actual malice

, is

consistent with the Rule of Lenity and section 775.021(1), Florida Statutes (2017). S ection 775.021(1) states that “ [t] he provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the

accused.”6 But the Second District did not discuss the applicability of the word maliciously in Yarn . It had no need to do so based on its holding that

there was no intentional act.

Unlike Yarn

, here, w e must apply the word maliciously in the statute

, and we conc lude it modifies each of the words in the series that follows it.

In Porto Rico Ry., Light & Power Co. v. Mor , 253 U.S. 345, 348 (1920) (citations omitted), the Supreme Court explained that “ [w] hen several words are followed by a clause which is applicabl e as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.”

The Fourth Circuit applied this canon of statutory construction in Long

v. United States , 199 F.2d 717 (4th Cir. 1952). In Long

, the defendant was convicted of violating a statute that provided: “ W hoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designed in section 1114 of this title

. . . . ” Id . at 718 (quoting 18 U.S.C. § 111). The Fourth Circuit explained that “[t]he use of the adverb ‘forcibly’ before the first of the string of verbs, with the disjunctive conjunction used only between the last two of them, shows quite plainly that the adverb is

t o be interpreted as modifying them all.” Id . at 719.

In another case, the Maryland Court of Special Appeals noted that in the statutory phrase “[w]illfully damage or tamper with any vehicle without the consent of its owner,” the word willfully applied to both damage and
tamper. In re John R. , 394 A.2d 818, 819 n.1 (Md. Ct. Spec. App. 1978)

.

Section 843.19(4), Florida Statutes

, therefore, requires the State to

establish that a defendant “intentionally or knowingly maliciously harasses, [ maliciously ] teas es, [ maliciously ] interferes with, or [ maliciously ] attempts to interfere with a police dog, fire dog, SAR dog, or police horse while the animal is in the performance of its duties.”

iii. The State Failed t o Establish t he Juvenile Maliciously Interfered w ith Kona, the Police Dog

The officers testified that the juvenile was “getting loud and belligerent” and “projecting his voice in the direction of the dog.” But neither officer

could re call the words used by the juvenile. One officer testified the juvenile was six to eight feet from Kona, and the other officer testified the juvenile was five to ten feet from Kona. A witness testified the juvenile was about ten steps behind Kona during the incident.7 In response to the motion in the circuit court, the Stat e argued that it took “no position on [ ] whether it’s malicious harassment, teases

. . . .” Although the State established that the juvenile “interfered” with the police dog, more was required

— evil intent or ill will. And, the State took “no position” o n whether it actually proved malice. Thus, the motion for judgment of dismissal must be granted.

Conclusion

We reverse the circuit court’s denial of the juvenile’s motion for judgment of dismissal and direct the court to vacate the adjudication of delinquency and dismiss the charge.

Reversed and remanded

.

T

AYLOR and K LINGENSMITH , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.