L.A.T., A CHILD

v.

STATE OF FLORIDA

GROSSHANS, J.

L.A.T. appeals an order adjudicating him delinquent for two offenses, including the discharge of a firearm in public. On appeal, he argues that the trial court erred in denying his motion for judgment of dismissal directed at the public-discharge offense. We agree and reverse.

L.A.T. was arrested and charged with possession of a firearm by a person found to have committed a delinquent act and discharging a firearm in public. At trial, the evidence demonstrated that the incident surrounding L.A.T.’s arrest took place at a wastewater treatment plant operated by Toho Water Authority (Toho), which contained several buildings, trailers, a wooded area, a pond, and a paved road.

A Toho employee testified as to his observations on the day of the incident. The employee heard approximately forty gunshots while in a meeting inside a Toho trailer. After hearing the gunshots, the employee saw three individuals on Toho property who appeared to be “firing at the ground or in the ditch.” The employee did not see the individuals shooting toward any inhabited area of the Toho property, testifying that the individuals were over 250 feet away from him and facing the opposite direction.

The State also called several law enforcement officers as witnesses. One responding officer recovered thirty-five shell casings from the Toho property in the wooded area where the three individuals had been seen. Other officers responded to the neighborhood where L.A.T. lived, which was just to the east of the Toho property. An officer obtained a cell phone from an individual who was accompanying L.A.T. After a search warrant was issued, another officer extracted a video from that cell phone, which showed L.A.T. discharging a firearm near a wooded area while standing on a paved road.

At the conclusion of the State’s case, L.A.T. moved for a judgment of dismissal, arguing that the State had failed to establish that the incident took place on a public road.

The trial court denied the motion and, at the conclusion of the trial, adjudicated L.A.T. delinquent for committing both charged acts. The court entered a disposition order consistent with the adjudications of delinquency. This appeal timely followed. 2 On appeal, L.A.T. challenges his adjudication for discharging a firearm in public. “The standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case.” A.P.R. v. State, 894 So. 2d 282, 284 (Fla. 5th DCA 2005). As such, we review the denial of a motion to dismiss de novo. Id. at 285. “A conclusion that an act of delinquency was committed is to be sustained where, viewing the evidence in the light most favorable to the State, a rational trier of fact could find that the elements of the delinquent act have been established beyond a reasonable doubt.” K.H. v. State, 265 So. 3d 684, 686–87 (Fla. 2d DCA 2019) (citing E.A.B. v. State, 851 So. 2d 308, 310 (Fla. 2d DCA 2003)).

To prove the offense of discharging a firearm in public, the State must establish that a person knowingly discharged a firearm in a public place, on a paved public road, or “over the right-of-way of any paved public road, highway, or street or over any occupied premises.” § 790.15(1), Fla. Stat. (2019). The parties do not dispute that the first option is inapplicable here as the area in which L.A.T. discharged the firearm was not a public place. Thus, we focus on whether the State presented sufficient evidence to prove that L.A.T. discharged a firearm on or over a paved public road or over occupied premises.

To prove that L.A.T. discharged a firearm on or over a paved public road, the State was required to present evidence that the road was both paved and public. Viewing the evidence in the light most favorable to the State, we cannot find that it met this burden.

While there was evidence to indicate that the road was paved, the State produced no evidence that the road was accessible to the public. In fact, the evidence at trial suggests the opposite—there was ample testimony that the road was on Toho’s private property, that it ran from Toho’s main gate around the property, and that it was used only by Toho’s 3 employees to access the facilities. By failing to present evidence that the road was accessible to the public, the State failed to prove that L.A.T. discharged a firearm on or over a public road.

Having established that the State did not prove L.A.T. discharged a firearm in public, on a paved public road, or over a paved public road, we are left with determining whether the State presented sufficient evidence that L.A.T. discharged a firearm over occupied premises. We hold that the State did not do so. The State presented no evidence that L.A.T. discharged the firearm over—or even toward—the occupied buildings. In fact, the State’s proof was to the contrary. All of the evidence indicated that L.A.T. fired away from the occupied buildings and into an empty wooded area. Thus, we conclude that there was insufficient evidence, as a matter of law, to prove that L.A.T. discharged the firearm over occupied premises.

The State contends that the issue of whether L.A.T. discharged the firearm over occupied premises is unpreserved, but we find that the insufficiency of the evidence amounts to fundamental error since the State failed to prove that a crime actually occurred. See F.B. v. State, 852 So. 2d 226, 230–31 (Fla. 2003); see also Jackson v. State, 289 So. 3d 967, 971–72 (Fla. 4th DCA 2020); Edwards v. State, 254 So. 3d 1195, 1195 n.1 (Fla. 5th DCA 2018).

Therefore, we conclude that the trial court erred in denying L.A.T.’s motion for judgment of dismissal as to the count alleging that he discharged a firearm in a public place. See A.P.R., 894 So. 2d at 285. Accordingly, we reverse the adjudication of delinquency and remand with instructions for the court to enter a dismissal for that 4 offense. However, we affirm his adjudication of delinquency for possession of a firearm by a person found to have committed a delinquent act.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

COHEN and HARRIS, JJ., concur. 5