Background
Paul Michael Phang II, a rideshare driver, encountered a malfunctioning exit gate after dropping off a passenger inside a gated residential community at approximately 2:00 a.m. He called the posted assistance number four times over sixteen minutes but received no answer. He then pushed and pulled the community’s gates by hand, ultimately bending the exit gate enough to drive through. The community spent $1,360 repairing a broken post and the damaged gate.
Police identified Phang from security video and located him at his apartment. According to Chief Judge Gerber’s special concurrence, Phang denied his identity and ownership of the vehicle shown in the video, although the vehicle was parked outside and bore transfer paint matching the gate. A jury convicted him of felony criminal mischief because the damage exceeded $1,000. The circuit court adjudicated him guilty, imposed twenty-four months’ probation, and ordered $1,360 in restitution. Phang appealed after the court denied his motions for judgment of acquittal, which argued that the State had not sufficiently proved the statutory requirement that he acted maliciously.
The Court’s Holding
The Fourth District issued a per curiam affirmance of Phang’s conviction. The panel’s decision states only “Affirmed” and supplies no majority reasoning for rejecting his sufficiency challenge.
Chief Judge Gerber separately concurred and explained his own view that the security video provided sufficient evidence for a jury to find malicious conduct. He reasoned that malice under Florida’s criminal-mischief law does not require ill will or hatred, and that jurors could find Phang acted wrongfully, intentionally, without legal justification or excuse, and with knowledge that damage would or might result. Gerber also concluded that Phang could have called the police non-emergency number or stopped applying force once it became apparent that the gate was likely to break. Judges May and Shaw joined the affirmance but did not join Gerber’s written reasoning.
Key Takeaways
- The Fourth District affirmed Phang’s felony criminal-mischief conviction without issuing a majority explanation.
- Chief Judge Gerber’s special concurrence—not the panel opinion—concluded that the video permitted the jury to find the statutory malice element beyond a reasonable doubt.
- Gerber’s discussion of malice, available alternatives, and the inapplicability of duress or necessity reflects only his separate reasoning and should not be treated as the court’s holding.
Why It Matters
The decision leaves Phang’s felony conviction, probation, and restitution order intact. Because the per curiam affirmance provides no rationale, however, it does not establish a panel-endorsed explanation of how Florida’s criminal-mischief statute applies to the facts.
Chief Judge Gerber’s concurrence offers a detailed account of why he believed the evidence was sufficient, but attorneys should distinguish that individual view from the unexplained disposition joined by all three judges.