        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                          ANDRE T. JOSEPH,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D13-2576

                            [January 7, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David Haimes, Judge; L.T. Case No. 12-004631 CF10A.

  Carey Haughwout, Public Defender, and John M. Conway, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble,
Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   Andre Joseph, the defendant below, appeals from his judgment and
sentence for burglary of a dwelling. He raises two intertwined issues on
appeal, and we find merit as to both and reverse for a new trial.

   The evidence at trial revealed that the defendant used to collect scrap
metal with the victim. On the day of the charged burglary, the defendant
called the victim and asked him if he was home. The victim informed
him he was at work. Later that day, the victim’s wife arrived home from
work and observed the defendant and another man attempting to carry
an engine block out of the carport. The defendant explained that he had
spoken to the victim and entered the property in order to repossess some
window frames he had stored there. The victim’s wife made a phone call
to her husband, who was still at work. He denied the defendant had
permission to come onto the property. The victim was aware, however,
that the window frames had, in fact, been left on the property by the
defendant although the victim had given them away, believing the
defendant had abandoned them. The victim’s wife called the authorities
and before law enforcement officials arrived to investigate, the defendant
and the other man departed, leaving the engine block on the driveway.
Subsequently, the victim discovered another car engine block was
missing from his carport. The second engine block was never recovered.

    Over objection, the court read the following standard jury instruction
to the jury:

      Proof of possession by an accused of property recently stolen
      by means of a burglary, unless satisfactorily explained, may
      justify a conviction of burglary if the circumstances of the
      burglary and of the possession of the stolen property
      convince you beyond a reasonable doubt that the defendant
      committed the burglary.

Fla. Std. Jury Instr. (Crim.) 13.1.

    The defendant argues the instruction was improper. We agree. The
defendant was charged pursuant to section 810.02(1), Florida Statutes
(2012), with “unlawfully enter[ing] or remain[ing]” in a dwelling “with
intent to commit the offense of [t]heft therein.” The statute provides the
following in pertinent part:

      (b) For offenses committed after July 1, 2001, “burglary”
      means:

      1. Entering a dwelling, a structure, or a conveyance with the
         intent to commit an offense therein, unless the premises
         are at the time open to the public or the defendant is
         licensed or invited to enter; or

      2. Notwithstanding a licensed or invited entry, remaining in
         a dwelling, structure, or conveyance:

         a. Surreptitiously, with the intent to commit an offense
            therein;

         b. After permission to remain therein has been
            withdrawn, with the intent to commit an offense
            therein . . . .

§ 810.02(1)(b), Fla. Stat.

   The Florida Supreme Court has explained when the instruction at
issue is proper:

                                      2
      As with all jury instructions, there must be an appropriate
      factual basis in the record in order to give this instruction.
      This means two things. First, it must be shown that the
      defendant, when arrested, either failed to explain or gave an
      incredible or unbelievable explanation for his possession of
      the property. Second, the instruction applies only where the
      property is undisputedly stolen and the question is who stole
      it. “[W]here there is conflict in the evidence as to the intent
      with which property alleged to have been stolen was taken . .
      . the question should be submitted to the jury without any
      intimation from the trial court as to the force of
      presumptions of fact arising from . . . the testimony.” It is
      improper to give this instruction when its only possible effect
      is to allow the jury to presume that a defendant is guilty
      because he was in possession of the property.

Consalvo v. State, 697 So. 2d 805, 815 (Fla. 1996) (alterations in original)
(internal citations omitted) (quoting Curington v. State, 86 So. 344, 345
(Fla. 1920)).

   Applying Consalvo to these circumstances, we find the court erred in
giving the instruction. Although the engine in the defendant’s possession
was undisputedly in the midst of being taken from the carport, and there
was no dispute as to the defendant’s identity, there were disputes as to
whether he had permission to be on the property and what his intent
was, either at the time of entry or after he was on the property. Under
these circumstances, the “only possible effect [of the jury instruction
was] to allow the jury to presume that [the] defendant is guilty because
he was in possession of the property.” Id.

   The instruction was not harmless.         We acknowledge that the
defendant was caught in the act of hauling off a car engine and there was
no evidence he had any claim to the engine or was given permission to
take it. However, if the jury found that the defendant did not have
permission to be on the property, its verdict turned on the defendant’s
intent at the time he entered the property. See Ray v. State, 933 So. 2d
716, 719 (Fla. 4th DCA 2006) (recognizing that where entry is without
permission, the state must prove the intent to commit a crime therein
was formed at the time of entry). There was evidence that the defendant
entered the property for a legitimate purpose – to retrieve window frames
he had stored there. We are unable to say that, in this context, there is
no reasonable possibility the jury instruction contributed to the
conviction. See Rivers v. State, 124 So. 3d 247, 253 (Fla. 2d DCA 2013)

                                     3
(citing State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986)).

   We also agree with the defendant’s second argument on appeal – that
evidence of the missing engine was admitted in error. The victim’s
testimony pertaining to a missing engine was not sufficient to constitute
similar fact evidence admissible under section 90.404(2), Florida
Statutes (2012). See Griffin v. State, 639 So. 2d 966, 970 (Fla. 1994)
(recognizing that a witness’s “mere reference to other burglaries was
obviously not similar fact evidence”). Nor was the evidence necessary for
the state to “adequately describe the deed,” “provide an intelligent
account of the crime(s) charged,” “establish the entire context out of
which the charged crime(s) arose,” or “adequately describe the events
leading up to the charged crime(s).” See Young v. State, 122 So. 3d 891,
896 (Fla. 4th DCA 2013) (alterations in original) (citation omitted). Thus,
the evidence was clearly not inextricably intertwined with the evidence of
the charged offense. To the extent the evidence may have somehow been
otherwise relevant, any probative value was outweighed by the
prejudicial effect. As with the jury instruction error, we find this error
was not harmless. On retrial, if the evidence remains the same, it would
be error for the court to permit the introduction of evidence regarding the
missing engine.

   Reversed and remanded for new trial.

CONNER and FORST, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                      4
