James Dion McAllister v. State of Florida

Appellant, James McAllister, seeks review of his conviction for burglary of a
dwelling, a second-degree felony. Appellant also challenges the trial court's refusal
to admit certain hearsay statements that appellant characterizes as "exculpatory." As to the evidentiary issue, we reject appellant's argument that the rule of completeness
would have required the trial court to permit defense counsel to introduce appellant's
statements through the testimony of a police officer, or through testimony of another
witness who apparently overheard part of a conversation between appellant and the
police officer. Because nothing in the record provides any definitive information as
to the substance of the excluded statements, we affirm this issue without further
discussion. As to the remaining issue, however, because the evidence introduced at
trial was sufficient only to convict appellant of burglary of a structure, a third-degree
felony, we reverse the conviction for burglary of a dwelling and remand with
instructions.

At trial, the State produced evidence sufficient to make a case that appellant
burglarized a garage owned by Geraldine Small. Small testified that while cleaning her
refrigerator, she heard a noise in the garage. She went to "the door," looked out, and
saw an automobile parked perpendicular to her driveway. She then opened the door
and saw McAllister "in our garage and he had one of our Coleman lamps in his hand."
The evidence presented at trial thus establishes that appellant entered the garage with
intent to commit a theft. The question on appeal is whether the evidence is sufficient
to sustain a conviction for burglary of a dwelling.

The burglary statute defines "dwelling" as "a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary
or permanent, mobile or immobile, which has a roof over it and is designed to be
occupied by people lodging therein at night, together with the curtilage thereof." §
810.011(2), Fla. Stat. (2001). At trial, appellant moved for judgment of acquittal,
relying on what counsel characterized as a lack of evidence "that the garage was
sufficiently attached to the house to establish the element of a dwelling. . . ." The trial
court denied that motion.

On appeal, appellant argues that this court must reverse under the decision in
Martinez v. State, 700 So. 2d 142 (Fla. 5 th DCA 1997). In Martinez, the burglarized
garage was not attached to the home, nor were the improvements on the property
enclosed by a fence. Relying on State v. Hamilton, 660 So. 2d 1038 (Fla. 1995), the
Fifth District reversed Martinez' conviction for burglary of a dwelling because the
evidence showed neither that the garage was part of the dwelling, nor that the garage
and the dwelling were "sufficiently demarcated from the surrounding land so as to be
enclosed," thus meeting the court's definition of curtilage. Martinez, 700 So. 2d at
143. This court has cited Martinez as the "pertinent case law" establishing that
burglary of a detached garage not enclosed together with the home by a fence does not
constitute burglary of a dwelling. See Sassnet v. State, 838 So. 2d 650, 652 (Fla. 1 st DCA 2003). * Accordingly, unless Small's garage was either attached to the house or
enclosed substantially along with the house, appellant is guilty of burglary of a
structure, not burglary of a dwelling.

We conclude that Small's testimony was not inconsistent with appellant's
theory that the garage in question was not part of a dwelling. The assistant state
attorney failed to elicit information from Small identifying which door she peered out
of, or whether that door was the same door she opened when she saw appellant at
what she characterized as a very close distance. In fact, Small's testimony is
consistent with her having looked out a door facing the street, rather than a door
entering a garage, given her testimony that when she looked out the door, she saw an
automobile parked in the street perpendicular to her driveway. Although the State
argues that Small must have looked out her kitchen door into the garage, a fair reading
of her testimony will not establish such fact. The State apparently accepts the
authority of Martinez because its brief does not mention or discuss that case in any
attempt to criticize or distinguish its holding. The State can make no persuasive
argument with regard to curtilage because the trial record contains no evidence at all
as to that factor.

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