### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT July Term 2014

D.J.D., a c hild

, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 12

- 1242

[ August 6, 2014 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County ; Nicholas Lopane , Judge; L.T. Case No. 11

- 4288 DL00A

.

Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistan t Attorney General, West Palm Beach, for appellee.

G ERBER
, J

.

The juvenile appeals his adjudication for assault on a law enforcement officer. He argues that because the officer was not engaged in the lawful performance of a duty when the assault occurred, the circuit court erred in denying his motion for judgment of dismissal to reduce the charge from

assault on a law enforcement officer to the lesser included offense of assault. We agree with the juvenile’s argument and reverse.

At the adjudicatory hearing, an officer who witnessed the assault

testified as follows. He and two other uniformed officers received a dispatch to assist a Department of Children an d Families (“DCF”) investigation of a woman and her young ch ild at her apartment. When the

officer s arrived at the apartment, the DCF investigator advised them that

she discovered the juvenile living with the woman and her child. The

woman told the DCF investigator she believed that the juvenile was an

adult. When the woman learned that the juvenile was not an adult, she

said that she wanted the juvenil e to leave.2

The officers contacted the juvenile’s mother and told her to pick him up. The officers then took the juvenile outside and detained him until his

mother arrived. The offi cers instructed him that he was not to come back to the apartment and that he was being turned over to his mother

. The juvenile said that he did not want to go with his mother and wanted to

walk off on his own. The officer s told him that he had “to be tu rned over

to an adult” and could not “ walk off when subject to an investigation.” The

officer later testified that the juv enile was not the subject of an investigation.

When the juvenile’s mother arrived, the officers explained the situation

to her. She told the officers that the juvenile frequently runs away and

she could not control him

. The officer s then instructed the juvenile to get into his mother’s car. The juvenile sat partially in and partially out of the car, and then started arguing with one of the officers who was standing

next to the door . The juvenile again said that he did not want to go with

his mother and wanted to leave on foot

. The officer with whom the juvenile was arguing said, “Come with me . . . you’re going to go to jail for

tr espassing.” At that point, the juvenile became combative. He took a fighting pos ture, clenched his fists , and said

, “I’m not going anywhere” and “I’m going to punch you in your s***.” The officer then said, “ Okay. Put your hands behind the back of your [head], you’re under arrest

, ” and grab bed the juvenile ’s hand

. At that point, the juvenile , with a clenched fist, pushed the officer in the chest

. The officer then took the juvenile into custody.

The state ultimately filed a petition for delinquency ch arging the juvenile with assault on a law enforcement officer under section 784.07(2)(a), Florida Statutes (2011). That statute provides, in pertinent part, as follows:

(2) Whenever any person is charged with knowingly committing an assault . . . upon a law enforcement officer . . .

while the officer . . . is engaged in the lawful performance of his

or her duties , the offense for which the person is charged shall

be reclassified as follows:

(a) In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.

§ 784.07(2) (a) , Fla. Stat. (2011) (emphasis added).

After the state rested, the juvenile moved for a judgment of dismissal.

The juvenile argued , in pertinent part :3 In order for the State to show that an assault or a battery takes place on a law enforcement officer . . . [the State has] to show that [the] officer was in the legal execution of his duty because a person has a right to resist any unlawful arrest.

. . . .

[T]here’s no testimony that [the officer] was in the lawful execution of his duty. At [the time of the assault], according to the testimony, the [juvenile] was with the mother. They had fulfilled their obligation. That he was ordered to go, be with his mother, and he could only be turned over to her custody

before he could leave. She met with him. If he wanted to walk off that was now the mother’s jurisdiction to decide how to

handle that situation. He was off the premises of the apartment [and] he was no longer interfering at all with th e investigation by DCF . This is a completely separate incident. Maybe he was mouthy, disrespectful to the officer but that’s not enough to sustain this.

. . . .

The state re sponded that because the officers were assisting in a DCF investigation and investigating a possible trespass, they were engaged in

the lawful execution of their duty. The court denied the motion.

In the juvenile’s case

- in

- chief, the juvenile’s mother te stified that when

she got to the apartment location, she told the juvenile to get into her car

. He said that he was going to walk , and started walking . The juvenile’s

mother testified she “was okay with that” because she knew he needed to

cool down and s he knew the area

. However, when t he juvenile started walking

, “ the officers p ulled their car in front of him and pulled him to the ground; told him to get in [her] car.” The officers then pulled the juvenile back up, and again told him to get in her car. When t he juvenile became defiant and did not move, the officers put him in their car.

After the juvenile rested, he renewed his motion for a judgment of dismissal. The juvenile argued , in pertinent part :

[The State has] to show that this officer was i n the legal execution of his duty. And there’s a difference between a cop just being on duty and being in a legal execution of a duty here. And that wasn’t established by the State. The child was4 ordered to go to his mother, he did. The mother had deci ded the best way to handle this case was to let him cool down, walk off. She had the experience. She knew what she was doing. And the situation and in her estimation was being resolved. The officers took it upon themselves to come back and grab the chi ld at that point [and arrest him].

. . . They no longer were in lawful execution of a duty, the child was not inhibiting, or delaying, or obstructing the DCF investigation at all. He was not being detained for any sort of investigation at all regarding anything. . . . .

Also, with . . . the lack of the execution of duty, the child really has no obligation to do anything except . . . leave the apartment, which he did and was satisfied. And then fall into the mother’s jurisdiction to handle that. There ’s really nothing . . . further because the State hasn’t met those elements and established that there was a legal duty at that point. . . . .

The circuit court denied the motion for judgment of dismissal . The court then found the juvenile guilty of ass ault on a law enforcement officer and adjudicated him delinquent.

Th is appeal followed. T he standard of review applicable to the denial of

a motion for judgment of dismissal in a juvenile case is de novo

. A.R. v. State , 127 So. 3d 650, 653 (Fla. 4th DCA 2013) (citation omitted). If the evidence taken in the light most favorable to the state does no t support
the juvenile’s guilt , then we must reverse the denial of the motion for judgment of dismissal. Id.

The juvenile argues that the circuit court erred in denying his motion

for a judgment of dismissal as to the enhanced offense of assault on a law enforcement officer, and that we should remand the case with directions to reduce the adjudication to the lesser included offense of assault.

The state argues that, at the time of the assault, the officer was engaged in the lawful performance of a duty i n three ways :

First . . . t he police were still assisting with the DCF investigation and by not actually leaving the premises, there was a real possibility that [the juvenile] would have returned

to the residence, where he had been living, and interrupted or interfered with the investigation. Thus, they had a legal duty5 to ensure that he left the premises completely. And the only way to ensure this would be if [the juvenile] left in the car with his mother. If [the juvenile] left on foot, as he wanted, he could have easily returned to the re sidence, contrary to [the woman’s] wishes . . . .

Second , while [the juvenile] was not initially the subject of the DCF’s investigation of [the woman] and the child, he became the subject of a DCF investigation and subject to detention by the police, until he could be released to a parent,

because it was disclosed during the initial investigation that he was under the age of 18 and he was having a sexual relationship with [the woman], an a dult

. See § 794.011(8),

Fla . Stat. (2011) (sexual battery of a child between the ages of 12 and 18 and noting that consent is not a defense ) ; § 39.401(1)

- (2), Fla. Stat. (2011) (Taking a child alleged to be dependent into custody; law enforcement officers and

auth orized agents of the department.

– A child may only be taken into custody by a law enforcement officer if the officer has probable cause to support a finding that the child has been abused and if the officer takes the child into custody, the

officer shall release the child to the parent of the child).

. . .

Third, when the mother arrived on the scene to pick [the juvenile] up, she told the police that her so n was a frequent runaway and she could not control him . At this point, the police were authorized under their community care

- taking function to take [the juvenile] into custody and release him to

her care

. See § 984.13, Fla. Stat. (2011) (authorizing and obligating a law enforcement officer to take a child into custody if the officer ha s reasonable g rounds to believe that the child has run away from his parents); see also D.O. v.

State , 77 So. 3d 787, 790 (Fla. 3d DCA 2011) [(Emas, J., specially concurring) ] (“Law enforcement, in a very real sense, fulfills a role as a ‘community caretaker’ when they encounter . . . child runaways . . . and children beyond the control of

t heir parents. They have not only the authority, but also a statutory obligation, to quickly reunite the child with their parent or guardian , or return the child to school or the

appr opriate agency that can provide the services needed in light of the individual ci rcumstances.”) (emphasis added)

.6

We agree with the juvenile’s argument for reduction of the enhanced offense, and conclude that the state’s three arguments for the enhanced

offense lack merit. We address each of the state’s three arguments in turn.

The state’s first argument appears to suggest that the officers arrested the defendant for the crime of “possible later trespass” of the woman’s

residence. However, no such crime exists. Moreover

, t he officer s could not lawfully arrest the juvenile for trespass in the woman’s residence due to his earlier presence there because he already had left that residence after being told to do so

. Cf. F .E.H., Jr. v . State , 28 So. 3d 213, 217 (Fla.

4th DCA 2010 ) ( d etective who approached juvenile in the parking lot of a closed daycare center lacked reasonable suspicion to make an investigatory st op of the juvenile for trespassing where the parking lot was an open lot on a corner and the juvenile already had left the lot when he was stopped ).

The state’s second argument lacks m erit as a matter of law . T he officer who testified at the adjudicatory hearing conceded that the juvenile was not the subject of a DCF investigation , and the record contains no evidence that the officers were seeking to take the juvenile into custody as a dependent child

. Moreover, no legal basis existed for the officers to take the juvenile into custody as a dependent child

. T he juvenile was not an abuse victim under section 794.011(8)(b), Florida Statutes (2011), as the state alleges, because the woman with whom he was living was not “a

person . . . in a position of familial or custodial authority ” over him. § 794.011(8)(b), Fla. Stat. (2011). As for the relationship between the juvenile and his mother

, the officers had n o information to form a probable

cause finding that he had been “ abused , neglected, or abandoned, or [was] suffering from or [was] in imminent danger of illness or injury as a result of abuse, neglect, or abandonment .” § 39.401(1)(b)1., Fla. Stat. (2011).

The state’s third argument also lacks merit as a matter of law. A lthough the juvenile’s mother told the officers that he frequently runs away and

she could not control him

, the record contains no evidence that the officers were seeking to take the juven ile into custody as a runaway

. See § 984.13 (1)(a) , Fla. Stat. (2011). As for the “ community caretaker” role

described in D.O. , the officers already had fulfilled that role by reuniting the juvenile with his mother. Although the juvenile again said that he did not want to go with his mother and wanted to leave on foot , his mother did not request the officer s to prevent him from doing so , and he had not done

so before the officer at issue told him “you’re going to go t o jail for trespassing” and grabbed the juvenile out of his mother’s car. Without

more information from the mother or more action from the juvenile , it was7

premature for the officer at issue to intervene in the mother’s custody of

her son at that time , ev en if well

- intentioned

.

In sum, because the officer whom the juvenile pushed was not engaged in the lawful performance of his duty at the time of the assault, the circuit court erred in denying the juvenile’s motion for judgment of dismissal to

reduce the charge from the enhanced offense of assault on a law

enforcement officer to the lesser included offense of assault. We reverse and remand with instructions for the circuit court to adjudicate the juvenile of the lesser included offense of assault , and to conduct any further proceedings necessary as a result of that lesser adjudication

.

Reversed and remanded with instructions.

G ROSS and C ONNER

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.