Kelly v. State of Florida

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
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No. 1D2024-1482
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A LAN M ICHAEL KELLY ,
Appellant,
v.
STATE OF FLORIDA ,
Appellee.
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On appeal from the Circuit Court for Walton County.
Kelvin C. Wells, Judge.
March 4, 2026
TREADWELL , J.
Appellant was found guilty by a jury of burglary by unlawful
entry, aggravated assault by threat with a deadly weapon, and
criminal mischief. We affirm the judgment and sentence with
respect to all issues raised on appeal, and we issue this opinion
only to address Appellant’s argument that the trial court erred
when it denied Appellant’s motion for judgment of acquittal on the
burglary count.
I.
“This Court reviews the denial of a motion for judgment of
acquittal de novo ‘to determine whether competent, substantial
evidence supports the elements of the crime.’” Carter v. State, 238
So. 3d 362, 364 (Fla. 1st DCA 2017) (quoting Chambers v. State,

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200 So. 3d 242, 245 (Fla. 1st DCA 2016)). “A judgment of acquittal
should only be granted when the jury cannot reasonably view the
evidence in any manner favorable to the opposing party.” Id.
(quoting Criner v. State, 943 So.2d 224, 225 (Fla. 1st DCA 2006));
see also Scott v. State, 414 So. 3d 464, 467 (Fla. 1st DCA 2025)
(“The evidence must be construed in the light most favorable to the
State when ruling on a motion for judgment of acquittal.”).
In this case, the evidence viewed in the light most favorable
to the State shows the following. On November 18, 2022, Appellant
forcibly entered his ex-girlfriend’s house, without warning, by
breaking 	the 	locked 	front 	door. 	The 	ex-girlfriend 	was 	on 	the
opposite side of the house and was unaware of Appellant’s presence
until he walked through the house and, armed with a shotgun,
threatened to shoot her in the face. She got scared and went into
another room while her sister confronted Appellant and got him
back outside on the porch. Meanwhile, the sister’s son jumped into
a car to get help. From the porch, Appellant briefly pointed his
shotgun at the sister’s son, but the sister hollered and further
confronted Appellant. The son drove off. Appellant then returned
to his truck and drove off.
During 	cross-examination, 	the 	ex-girlfriend 	testified 	that,
prior to this incident, Appellant was “always welcomed” to her
house. In fact, it was common for him to stay at her house and her
to stay at his house, but they never lived together. She further
explained 	that 	Appellant 	did 	not 	need 	to 	call 	ahead 	to 	get
permission to come over.
After 	the 	State 	rested, 	Appellant 	moved 	for 	judgment 	of
acquittal on the burglary count. He argued that the ex-girlfriend’s
testimony demonstrated that he had consent to enter the house as
an invitee, therefore his forced entry was lawful. The trial court
denied the motion.
On appeal, Appellant again argues that the ex-girlfriend’s
testimony that he was “always welcomed” to her house established
the affirmative defense of consent to be inside her house. As a
result, the State then had the burden of disproving that defense
beyond a reasonable doubt. Appellant contends that the State
offered no evidence that the ex-girlfriend revoked her consent for
Appellant to enter her house, therefore his motion should have

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been granted. In response, the State argues that a rational jury
could have concluded beyond a reasonable doubt that Appellant
lacked consent to enter the house based, in part, on his forced
entry. We agree with the State.
II.
One 	way 	a 	person 	commits 	a 	burglary 	is 	by 	entering 	a
dwelling with the intent to commit an offense. § 810.02(1)(b), Fla.
Stat. (2022). But if the person is licensed or invited to enter, there
is no burglary. Id. Thus, an owner’s consent for the defendant to
enter 	the 	dwelling 	is 	an 	affirmative 	defense 	to 	burglary.
§ 810.015(3), Fla. Stat. (2022).
Appellant’s ex-girlfriend testified that Appellant was “always
welcomed” to her house, even unannounced, prior to this incident.
But Appellant never lived at her house, and there is no evidence
that he could enter as he pleased. Viewing this evidence in the
light most favorable to the State, the ex-girlfriend’s testimony only
supports an invitation to arrive at her door, not to enter her home
whenever Appellant wished. In other words, a reasonable jury
could infer that an owner of a dwelling does not give consent to
enter the dwelling by extending a blanket invitation to come over
anytime. The common, colloquial invitation to “come over anytime”
does not necessarily grant permission to enter a residence at any
time. After all, there is a significant difference between arriving at
a front door unannounced, with hopes of being let in, and actually
walking inside unannounced. Accordingly, a jury could reasonably
conclude that the ex-girlfriend’s general invitation to come over
and be “welcomed” did not grant Appellant consent to enter the
dwelling. 	Appellant 	is 	therefore 	mistaken 	that 	her 	testimony
established the affirmative defense of consent to enter.
Nevertheless, 	even 	if 	the 	ex-girlfriend’s 	testimony 	was
competent evidence of consent to enter, the State only had the
burden of contradicting that evidence to the extent that a jury
could conclude that there was no reasonable doubt as to the
defendant’s guilt (i.e., lack of consent), to survive the motion for
judgment of acquittal. Williams v. State, 468 So. 2d 447, 449 (Fla.
1st DCA 1985), aff’d, 492 So. 2d 1051 (Fla. 1986). The State can
prove a defendant’s lack of consent with circumstantial evidence.
§ 810.015(3), Fla. Stat.

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Here, the State met its burden by presenting evidence of
Appellant’s forced entry into the dwelling while the owner was
present. Forced entry is generally evidence of an uninvited entry.
See, e.g., Tobler v. State, 371 So. 2d 1043, 1045 (Fla. 1st DCA 1979)
(“Appellant’s forced entry into the fenced area was one burglary,
and his later forced entry into the enclosed trailer parked within
the fenced area was a second burglary.”). After all, burglary is a
crime against one’s security in a dwelling. See Colley v. State, No.
SC2024-1011, 2025 WL 3763551 at *19 (Fla. Dec. 30, 2025) (noting
that “burglary is a disturbance to habitable security”).
The 	Florida 	Supreme 	Court 	recently 	denied 	relief 	to 	a
defendant who was convicted of burglary for entering the home
where he previously lived and still often visited. Id. The Court
reasoned that any prior consent he had to visit the home was
revoked, because he forcibly entered and attacked his ex-wife and
her guests. Id. The Court explained,
Despite any previous invitations she may have extended
to Colley to visit her at the marital home, there is nothing
to suggest that she invited Colley on August 27, 2015.
And even if a “standing invitation” existed, a reasonable
person would understand that any such invitation was
revoked the moment Colley shot through the sliding glass
door at Amanda and her friends inside. It is totally
unreasonable to suggest that Colley could have believed
he was welcome to enter by violently destroying the door
and immediately opening fire.
Id. Similarly in this case, a reasonable jury could conclude that
Appellant was not welcome, despite his previous visits, to enter his
ex-girlfriend’s 	home 	by 	violently 	breaking 	the 	door 	and
threatening her life on November 18, 2022. Thus, the trial court
did not err by denying the motion for judgment of acquittal.1
1 For purposes of a motion for judgment of acquittal, the
question of whether there is competent evidence from which the
jury could infer guilt is a question of law. Aguirre-Jarquin v. State,
9 So. 3d 593, 605 (Fla. 2009) (emphasis added).

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Appellant’s reliance on this Court’s opinion in D.R. v. State,
734 So. 2d 455 (Fla. 1st DCA 1999), is unavailing. In that case,
D.R. had been staying at the residence when the power was cut off
and the owner temporarily moved out, after which D.R. admitted
to reentering the residence to retrieve his clothes. 734 So. 2d at
457, 459. When the owner returned, an $800 stereo, a $30 cellular
phone, and some jewelry were also missing from the residence. Id.
at 457. Because D.R. admitted to entering the residence, this Court
focused 	on 	whether 	the 	State 	presented 	evidence 	of 	D.R.’s
knowledge that his entry was without consent. Id. at 459-60. First,
this Court determined that D.R. “clearly” had consent to enter the
residence because the owner had permitted him to stay on the
couch 	during 	the 	nights 	immediately 	preceding 	the 	alleged
burglary. Id. at 459. Based on that competent evidence of consent,
the State then had the burden to show that the consent had been
withdrawn when the owner temporarily moved out. Id. This Court
observed, “Nothing in the record suggests that consent to enter,
once given to D.R., was ever withdrawn expressly or by implication
and communicated to him.” 	Id. at 460. Thus, the State failed to
meet its burden. Id. at 456.
Here, unlike in D.R., Appellant was not living or staying at
his ex-girlfriend’s house immediately preceding the events on
November 18, 2022. As a result, D.R. does not support the legal
conclusion 	that 	he 	had consent 	to enter the 	house 	that day.
Moreover, in D.R., the owner was absent when D.R. entered the
residence; there was no opportunity for D.R. to be let inside by the
owner. Here, Appellant’s ex-girlfriend was inside her house, yet
Appellant forcibly entered by breaking through the locked door. No
reasonable jury could infer that Appellant had consent to enter by
forcible means when the owner was present and able to let him
inside. For these reasons, the holding with respect to the unique
facts in D.R. is not applicable to this case.2
2 Notably, in D.R., there was some testimony about a forced
entry. 734 So. 2d at 457. But such testimony did not factor into this
Court’s analysis. Rather, the case turned solely on whether D.R.’s
consent to enter was withdrawn by the owner. Id. at 460. This
Court offered no opinion on whether a defendant’s consent to enter
a residence includes entering by means of forced entry. We are

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Accordingly, 	the 	trial 	court 	properly 	denied 	Appellant’s
motion for judgment of acquittal. We affirm on all issues.
A FFIRMED.
LEWIS and R OBERTS, JJ., concur.
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Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jessica J. Yeary, Public Defender, and Kathleen Pafford, Assistant
Public Defender, Tallahassee, for Appellant.
James 	Uthmeier, 	Attorney 	General, 	and 	Steven 	E. 	Woods,
Assistant Attorney General, Tallahassee, for Appellee.
certainly doubtful of that contention, absent evidence of express
permission or exigent circumstances. Regardless, neither party in
this case mentioned or relied on the aspect of forced entry in D.R.,
and we find it unavailing here.