IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


PHILIP GABRIEL CAPPELLO,

             Appellant,

 v.                                                    Case No. 5D15-1977

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed September 9, 2016

Appeal from the Circuit Court
for Orange County,
Timothy R. Shea, Judge.

James S. Purdy, Public Defender, and
Matthew Funderburk, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Deborah A. Cheesman,
Assistant Attorney General, Daytona
Beach, for Appellee.


ORFINGER, J.

      Philip Cappello appeals his conviction and sentence for burglary of a structure with

an assault and a weapon. Cappello contends that the trial court erred when it denied his

motion for judgment of acquittal because the 7-Eleven he robbed was open to the public,

and he did not enter an area that was off limits to patrons. We agree and reverse.
      Cappello was charged with burglary of a structure with an assault and a weapon,

and robbery with a weapon and a mask after entering a 7-Eleven store and demanding

money from a store employee, Rehan Baig, at gunpoint.1 Baig was working at the cash

register when a person, later identified as Cappello, entered the store wearing a mask.

Cappello pointed a gun at Baig and demanded money from the cash registers. The

store’s security system recorded the entire episode, which was played for the jurors. The

video recording showed Cappello entering the store and pointing a gun directly at Baig,

who then opened the first cash register and gave Cappello the cash inside. Baig then

opened the second cash register and placed the cash register tray on the counter.

Cappello took the cash from the tray on the counter and fled the store while Baig called

the police. Cappello was apprehended shortly thereafter.

      After the State rested, Cappello moved for a judgment of acquittal on the burglary

count. He argued that the State failed to prove that he entered an area of the store that

was not open to the public. The trial court denied the motion and Cappello was convicted

as charged.

      A trial court’s denial of a motion for judgment of acquittal is reviewed de novo for

the sole purpose of determining whether the evidence is legally sufficient. Durousseau

v. State, 

, 556 (Fla. 2010). In moving for a judgment of acquittal, a

defendant “admits not only the facts stated in the evidence adduced, but also admits

every conclusion favorable to the adverse party that a jury might fairly and reasonably

infer from the evidence.” Beasley v. State, 

, 657 (Fla. 2000) (quoting



      1 We affirm Cappello’s conviction and sentence of robbery with a weapon and
mask without comment.



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Lynch v. State, 

, 45 (Fla. 1974)). “Whether to grant a motion for judgment

of acquittal hinges on the sufficiency of the evidence presented at trial and what factual

findings the jury could ‘fairly and reasonably infer’ from that evidence.” Grohs v. State,

, 456 (Fla. 4th DCA 2006).

       In relevant part, section 810.02(1)(b)1., Florida Statutes (2015), defines burglary

as “[e]ntering 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 . . . .” “[I]f a defendant can

establish that the premises were open to the public, then this is a complete defense” to a

charge of burglary. Miller v. State, 

, 957 (Fla. 1998).            However, a

defendant can be found guilty of burglary if “he or she entered into or remained in areas

of the premises which he or she knew or should have known were not open to the public.”

Johnson v. State, 

, 1164 (Fla. 2001) (affirming burglary conviction of

defendant who entered area of convenience store behind counter not open to public).

       Generally, determining whether an area is open to the public is a question of fact

for the jury to decide. 

some cases, the courts have recognized that the

trial court is obligated to grant a motion for judgment of acquittal if there is no evidence

that would allow a reasonable person to conclude that a particular area was not open to

the public. See, e.g., Mansfield v. State, 

, 76 (Fla. 4th DCA 2007); Savage

v. State, 

, 809 (Fla. 2d DCA 2002).

       Here, the 7-Eleven was clearly open for business, and, thus, open to the public.

Consequently, the only issue we consider is whether Cappello entered an area of the

store off limits to patrons, which would constitute a burglary. Unlike the defendant in

Johnson, who walked behind the check-out counter, Cappello did not enter any area of




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the store that was not open to the public. He stood in the same place that customers

stand to purchase items from the convenience store and demanded the money from the

cash registers. Contrary to the State’s assertion, Cappello never “reache[d] over the

counter” into any area that was not open to the public. Cappello also never reached into

the actual cash register, which would have constituted a burglary, as it is located in an

area, which is not open to the public. Instead, the video recording clearly shows that the

store clerk opened the first register and handed Cappello the cash from inside. The

employee then opened the second register and placed the tray from the cash register on

the sales counter. Cappello then took the money from the tray that was on the sales

counter, an area that is open to the public.

       The State’s reliance on Fine v. State, 

(Fla. 5th DCA 2000), is

misplaced. In Fine, the defendant was charged with burglary after he drove up to a fast

food drive-thru window, leaned through the window and grabbed money from the cash

drawer. In rejecting Fine’s argument that no burglary was committed because the drive-

thru window was open to the public, we held that by reaching into the interior of the store

window and grabbing money, Fine was in a part of the restaurant not accessible to the

. Unlike Fine, Cappello never entered or reached into any part

of the store off limits to the public.

       Still, the State insists that the orientation of the cash register tray is dispositive of

the case. According to the State, the cash register faced the “employee side of the

counter, which was not open to the public, thus rendering the register and its contents as

not open to the public.” This argument takes the burglary statute too far. There is no

support in the State's argument that Cappello’s subsequent act of taking the cash from




                                               4
the tray placed in front of him on the sales counter, while standing in an area open to the

public, constitutes “[e]ntering a dwelling, a structure, or a conveyance” as required by the

burglary statute. Cf. Colbert v. State, 

, 822 (Fla. 4th DCA 2010) (reversing

burglary conviction for taking jewelry after breaking side glass panel of jewelry counter

open to public and then placing hand inside jewelry counter while standing in area open

to public).

       Burglary is a crime against property. Section 810.02(1) specifically exempts from

its purview premises that are open to the public at the time the offense is committed. See

Dakes v. State, 

, 940 (Fla. 3d DCA 1989). It is only “[w]hen an individual

proceeds from the public area of a business into a nonpublic area with the intent to commit

a crime therein, [that] a burglary is committed.” Lewis v. State, 

, 583 (Fla.

3d DCA 2003) (citing Thomas v. State, 

, 327 (Fla. 3d DCA 1999); 

). This is why, for example, a defendant who robbed a pharmacy by

taking money that a store clerk handed to him from the cash register could not also be

convicted of burglary, where it was undisputed that the pharmacy was open to the public,

and there was no evidence that the defendant was in a restricted area of the pharmacy.

Ducas v. State, 

, 1214, 1218-19 (Fla. 3d DCA 2012).

       Since it is undisputed that the convenience store was open to the public and there

was no evidence presented that Cappello entered or reached into a restricted area of the

store when he committed the robbery, he was entitled to the complete defense to burglary

afforded by section 810.02(1)(b)1. The trial court should have granted his motion for

judgment of acquittal as to the burglary charge. We reverse Cappello’s conviction for

burglary, but affirm his conviction on the robbery count.




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     AFFIRMED IN PART; REVERSED IN PART.


BERGER and LAMBERT, JJ., concur.




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