Summary
In L.S. the defendant was one of two youths who could have pushed the victim from behind; however, there was no evidence that the appellant was the youth who actually did the pushing, and the court reversed a conviction for battery, concluding that the mere presence of the defendant with another youth was insufficient to support a battery conviction.
Summary of this case from R.M. v. StateOpinion
No. 78-1007.
December 16, 1980.
Appeal from the Circuit Court, Dade County, Seymour Gelber, J.
Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen. and Michael A. Vandetty, Certified Legal Intern, for appellee.
Before BARKDULL, BASKIN and PEARSON, DANIEL, JJ.
We reverse the adjudication of delinquency by the commission of a battery entered against defendant L.S. Although circumstantial evidence disclosed that defendant was present with another child when motorcycle gloves were taken from the victim's back pocket and he was pushed from behind causing him to fall, the evidence was insufficient to prove beyond a reasonable doubt that defendant was the unseen person who pushed the victim. State v. V.D.B., 270 So.2d 6 (Fla. 1972). The evidence is entirely circumstantial and must therefore be consistent with guilt and inconsistent with any reasonable hypothesis of innocence. J.O. v. State, 384 So.2d 966 (Fla.3d DCA 1980); Pack v. State, 381 So.2d 1199 (Fla.2d DCA 1980). The evidence was also insufficient to prove that defendant was an aider and abettor.