# Third District Court of Appeal

State of Florida

Opinion filed August 13, 2014

. Not final until disposition of timely filed motion for rehearing.

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No. 3D12-1522

Lower Tribunal No. 11-26818

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### Perry Campbell

, Appellant,

vs.



### The State of Florida

, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Milton Hirsch

, Judge.

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public

Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas

, Assistant

Attorney General, for appellee.

Before WELLS, LAGOA, and LOGUE, JJ.

LAGOA, J.Perry Campbell (“Campbell”) was charged with one count of burglary of an

unoccupied dwelling and one count of first-degree misdemeanor criminal mischief.

At the close of the evidence, defense counsel moved for judgment of acquittal on

both counts. The trial court denied the motion, and Campbell was convicted of

trespass, as a lesser-included offense of burglary, and criminal mischief, as

charged. Because the evidence was legally insufficient to support a charge of

criminal mischief, we reverse that conviction but affirm the conviction for trespass.

On appeal, Campbell argues that the trial court erred in denying his motion

for acquittal. We review an order denying a motion for judgment of acquittal de

novo

. Jean-Marie v. State

, 947 So. 2d 484, 487 (Fla. 3d DCA 2006). “ Where the

State fails to present sufficient evidence to establish a prima facie case of the

charged crime, a judgment of dismissal is required.” R.R.W. v. State

, 915 So. 2d

633, 635 (Fla. 2d DCA 2005).

A person commits the offense of criminal mischief if he willfully and

maliciously damages the real or personal property of another. § 806.13(1)(a), Fla.

Stat. (2011). To sustain a conviction for criminal mischief, the State must prove

the defendant caused the damage. Valdes v. State

, 510 So. 2d 631, 632 (Fla. 3d

DCA 1987); see also R.R.W.

, 915 So. 2d at 635 (“An essential element of

. . .

criminal mischief is the defendant's willful and malicious causation of damage to

the property of another.”). “Where the only proof of guilt is circumstantial, no

matter how strongly the evidence may suggest guilt, a conviction cannot be

2sustained unless the evidence is inconsistent with any reasonable hypothesis of

innocence.” State v. Law

, 559 So. 2d 187, 188 (Fla. 1989); see also Mayo v. State

,

71 So. 2d 899, 904 (Fla. 1954) (“[E]vidence leaving uncertain which of several

hypothesis may be true, or establishing only a probability favoring one hypothesis

rather than another, cannot be equal to proof of guilt, no matter how strong the

probability may be.”).

Here, the State’s evidence was entirely circumstantial. Officer Rodriguez

and Detective Ryan were the State’s only two witnesses. Office Rodriguez

testified he was dispatched to a burglary in progress, and once on the scene, he

noticed damage to both the apartment’s front door and the apartment’s door frame.

Detective Ryan testified that Campbell told her he entered the apartment through

the front door, but Campbell did not say how he gained entry. The photographs

admitted into evidence depicted damage to the front door. There was no

testimony, however, as to the condition of the door before Campbell entered the

apartment nor was there direct evidence that Campbell caused the damage. While

the circumstantial evidence against Campbell certainly suggests guilt, the State

failed to present substantial, competent evidence from which the jury could

exclude any reasonable hypothesis of innocence. See Law

, 559 So. 2d at 189 (Fla.

1989) (stating that the State is not required to rebut every possible hypothesis, but

must “introduce competent evidence which is inconsistent with the defendant’s

theory of events”).

3Because the evidence was legally insufficient to support the charge of

criminal mischief, we are compelled to find that the trial court erred in denying

Campbell’s motion for judgment of acquittal as to that charge. Accordingly, we

reverse and remand for the trial court to vacate Campbell’s conviction for criminal

mischief. We affirm, however, as to Campbell’s conviction for trespass.

Affirmed in part; reversed in part with instructions.

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