R.D.S. v. State

FERGUSON, Judge. Appellant, a sixteen-year-old juvenile, was arrested in possession of a stolen and severely damaged moped from which the identification number had been removed; he had no registration documents for the vehicle. The explanation offered by appellant for being in possession of the recently stolen property was that he had purchased the moped from a boy named Rodney Middleton for $35 and that it was in poor condition when he bought it. It is conceded here, by the State, that no attempt was made to verify or refute appellant’s testimony. On the charge of grand theft, appellant was adjudicated delinquent and committed to the custody of the Department of Health and Rehabilitative Services. Appellant contends that the circumstantial evidence relied upon by the state is insufficient to support the delinquency adjudication, relying mainly upon two recent cases of the court which are factually similar — R.M. v. State, 412 So.2d 44 (Fla. 3d DCA 1982) and R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981). We held in R.A.L. that: [T]he respondent’s unrefuted, exculpatory, and not unreasonable explanation of his possession of a stolen moped — that he bought it at a flea market — rendered the state’s case, which was based solely on the inference provided by Section 812.-022(2), Florida Statutes (1979), without any additional incriminating circumstances, insufficient as a matter of law to establish guilt. 402 So.2d at 1337. The State argues that this case is factually distinguishable from R.A.L. and R.M. because there are incriminating circumstances inconsistent with appellant’s explanation in addition to the inference provided by the statute1 — specifically that the identification number on the vehicle had been removed. But an inference that the identification number was removed by the person who sold the moped to appellant is just as reasonable as, and comports with, appellant’s otherwise unrefuted testimony that he purchased the vehicle in poor condition from a person named Middleton. In other words, the alleged additional incriminating circumstances do not point to this appellant as the thief to the reasonable exclusion of some other person. There is then no meaningful distinction between this case and those relied upon by appellant. “The law does not deal in probabilities, but in proof of guilt beyond [a] reasonable doubt.” A.R. and F.M. v. State, 393 So.2d 1174, 1175 (Fla. 3d DCA 1981), citing Davis v. State, 90 So.2d 629 (Fla.1956) and Fisk v. State, 138 Fla. 815, 190 So. 10 (1939). Reversed and remanded with directions to discharge the appellant. Footnotes [1] Section 812.022(2), Florida Statutes (1983) provides: Proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen, [e.s.]