By RICHARD WEATHERINGTON
If the seller of a stolen item lets it go for far below its fair market value, the law may allow a jury to infer that the seller knew that the item was stolen. But what if the fair market value was never established in court? Would the conviction stand?
Recently, a man convicted of dealing in stolen property under similar circumstances claimed that the trial court was wrong and his conviction should be overturned.
A man, whose first name was Donnie, was charged with dealing in stolen property and false verification of ownership on a pawnbroker’s transaction form. The charges arose from the theft of an air compressor, which Donnie had sold to a Florida pawnshop for $35.
Donnie went to trial, and at the end of his trial the court instructed the jury, without objection by Donnie, that proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.
During closing arguments, the state brought up this inference and argued, “this $35 for this air compressor was an indication that Donnie knew or should have known it was stolen. This is worth a lot more than $35.” Donnie didn’t raise an objection to this statement.
The jury instructions basically followed Florida Law Section 812.022(3), which provided that “Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.”
After Donnie was convicted by the jury, he appealed his conviction to the First District of the Florida Court of Appeals. He claimed that the trial court got it wrong in its instruction to the jury that proof of the sale of stolen property below the fair market value gives rise to an inference the seller knew or should have known the property was stolen, because in his case, no evidence was presented of the compressor’s fair market value.
Value of Compressor
The Appeals Court first noted that although it agreed with Donnie that there was no evidence presented about the fair market value of the compressor, it disagreed that giving the instruction constituted a fundamental error.
A fundamental or plain error is an obvious error that reaches to the basic foundation or merits of a case or affects substantial right of the parties and may result in the voiding of a judgment.
Donnie argued that the trial court committed a fundamental error when it included this inference in its instruction to the jury because the state failed to establish evidence that $35 was in fact substantially below fair market value of the compressor he sold to the pawnshop. He claimed the error was fundamental because it pertained to knowledge, which was an essential element of the crime of dealing in stolen property.
Donnie pointed to several cases in which courts found that giving a jury instruction on a statutory inference that was not supported by the evidence was a harmful error. The Appeals Court noted that the only case Donnie relied on that dealt with a fundamental error was the 2003 case of Tatum v. State, in which the Second District of the Florida Court of Appeals indicated the instruction on a statutory inference without the proper factual basis may be a fundamental error.
The defendant in the Tatum case, a pawnshop owner, was charged with racketeering in the operation of a pawnshop under Florida’s RICO Act. Some of the alleged transactions were made by the pawnbroker himself and others were made by his employee.
The jury was instructed that proof a dealer bought or sold property “out of the regular course of business or without the usual indicia of ownership” gave rise to an inference that the dealer knew or should have known the property was stolen.
The Second District found this instruction was permissible only where the dealer personally made the sale, because the inference goes to prove an essential element of the crime, the defendant’s state of mind.
Thus, the Second District ruled the instruction was an error, and it served to bolster the testimony of the state’s key witness, who was the pawnbroker’s employee.
The Second District concluded that although the state claimed the issue was insufficiently preserved for appellate review, the court said that the error was a fundamental error. The First District Court of Appeals hearing Donnie’s appeal noted, however, that the Second District gave no other reason for its finding that the error was a fundamental one.
The First District Court of Appeals looked at the 2002 case of Cardenas v. State, in which it made a distinction by ruling that an improper instruction or failure to instruct as to an essential element of a crime may rise to the level of a fundamental error.
But in contrast, the court held that a “challenged instruction that merely advised the jury of an evidentiary presumption or permissible inference that they were free to accept or reject” was not a fundamental error.
In the Cardenas case, the defendant argued that the standard jury instruction on the presumption of impairment that arises when blood tests reveal high alcohol levels was a fundamental error. The First District Court of Appeals rejected that argument, finding the instruction neither omitted from the definition of an offense one of the essential elements nor misdefined one of the essential elements of an offense.
As such, the court concluded it did not appear the instruction influenced the outcome of the trial or that the guilty verdict could not have been obtained without the improper instruction.
Here, said the Appeals Court, as in Cardenas, the standard jury instruction at issue did not omit or erroneously define an essential element of the offense.
It merely advised the jury that it could infer Donnie knew the air compressor was stolen if he sold it substantially below the fair market value. Upon review of the record, Donnie’s theory of defense was that the victim mistakenly identified the air compressor as his own, not that Donnie didn’t know that it had been stolen.
As such, said the Appeals Court, giving the instruction in this case did not constitute a fundamental error. The Appeals Court, therefore, affirmed the judgement of the trial court.
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By RICHARD WEATHERINGTON
Criminal statutes are supposed to be written clearly to ensure that a person is not subjected to a criminal penalty unless the words of the law plainly impose it. So when a pawnshop employee sought to have her theft conviction overturned, she pointed to the “explicit” wording in the statute.
An investigator for a national retail chain, which owns and operates discount retail stores, began investigating losses at several of the chain’s stores in Alabama when he received information from several shoplifters that he should look at a certain Web site.
The investigator found that the site listed numerous items similar to those stolen from the chain’s various stores in the area. Police then conducted a series of undercover sales at several locations of an Alabama pawnshop, with the help of a confidential informant, M.B.
An undercover officer and M.B. went to one of the stores to pawn three new iPods — portable media players — provided by the retailer. The officer had his hand bandaged when he went to the pawnshop.
When they entered the store, the officer claimed several store employees, including a woman whose first name was Jennifer, were behind the counter. They approached Jennifer with the three new iPods, put the iPods on the counter, and told her that they wanted to sell them.
The officer said that Jennifer went to talk to another employee. When she came back, she said that the shop would give them $195 for the merchandise. The other employee went into the back and came back with the money, while Jennifer entered information into a computer.
The undercover officer said that while Jennifer was working on the transaction, M.B. asked how much they would pay for a 60-gigabyte iPod and if they could bring more new iPods in the next day.
The police department executed search warrants at three of the pawnshop’s stores. At one location, police discovered a room that contained new items that appeared to be for sale on the Internet Web site.They found shipping labels, packaging materials, and a folder of tickets for items that had been bought during the sting operations. Jennifer was charged with theft of property in the second degree.
Implied, Not Stated
At the trial, the lead detective on the case testified that during the sale involving Jennifer, M.B., and the undercover officer, neither M.B. nor the officer went up to Jennifer and said that the iPods were stolen, but they did imply that they were.
When they executed a search warrant, they discovered two of the iPods Jennifer had purchased were in the back storage area of the store and the third iPod was on the sales floor. The detective testified that according to the city code, pawnshops were supposed to provide information regarding the items they take in but that, in this case, they gave only two serial numbers.
There was also testimony to the effect that state law required a pawnshop to hold merchandise for 15 days before putting it up for sale or transferring it to another location.
The state played a recording of the transaction for the jury. It showed that during the transaction, M.B. asked the officer about his hand. The officer responded that it was better and that the bleeding had stopped.
M.B. said to the undercover officer, “I’m tired of stealing, man. I’m so tired. I’m ready to go home now.” He then asked the officer: “You’ll think twice before you wrestle them cases again, won’t you?” and the officer responded: “Yep.” M.B. also said: “Man … I need to get me one good lick about a … big screen TV and be through with it.”
After Jennifer told them how much they would get for the iPods, M.B. said: “That’s not bad, I guess,” and the officer responded, “I cut my damn hand getting them things out of the case.”
Working Under Supervision
Jennifer testified that in 2007 she was working at the pawnshop part time, and that her primary responsibilities were to clean the store and merchandise. She occasionally handled transactions, but she had to consult a manager on what items the store would buy.
On the day M.B. and the undercover officer came in with the iPods, she said she took the merchandise to the manager, who was in the back, and he examined it and gave her a price. Jennifer said that she went back and after they agreed to the price, she went to the computer, which was away from the counter, to input the data from the transaction.
She claimed that she didn’t hear M.B. or the undercover officer say anything about breaking into a case or anything to do with a case, that she didn’t hear anything that led her to believe that the iPods were stolen, that it was loud in the store, and that no one explicitly told her that the iPods were stolen.
She said that when she put the number of the iPods in the computer she got mixed up and transposed the middle four digits of the serial numbers. Jennifer testified that she would not knowingly take stolen property and that many customers brought in new property to pawn.
Jennifer was convicted and sentenced to 10 years in prison, but her sentence was suspended and she was placed on three years’ supervised probation.
She appealed her conviction to the Alabama Court of Appeals, claiming that the state failed to present sufficient evidence to support her conviction.
Specifically, Jennifer claimed that the state didn’t prove that the undercover officer and M.B. “explicitly” represented to her that the iPods were stolen; rather, she argued, they only implied that the items were stolen.
The Appeals Court first noted that in deciding whether there was sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Conflicting evidence presents a jury question not subject to review on appeal, provided the state’s evidence establishes a prima facie case.
In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. A verdict of conviction, said the court, would not be set aside on the ground of insufficiency of the evidence unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict was so decided as to clearly convince the Appeals Court that it was “wrong and unjust.”
The court noted that the role of appellate courts is not to say what the facts are, but rather to judge whether the evidence was legally sufficient to allow submission of an issue for decision to the jury.
Circumstantial evidence alone, said the court, is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty. Circumstantial evidence is not considered inferior evidence and is entitled to the same weight as direct evidence, provided it points to the guilt of the accused.
Because intent is a state of mind, noted the court, it is rarely susceptible of direct or positive proof. Instead, the element of intent must usually be inferred from the facts testified to by the witnesses together with the circumstances as developed by the evidence. Finally, the intent of a defendant at the time of the offense is a jury question.
The Appeals Court noted that Section 13A-8-2(3) of the Alabama Code says a person commits the crime of theft of property if he or she: “Knowingly obtains or exerts control over property in the custody of a law enforcement agency which was explicitly represented to the person by an agent of the law enforcement agency as being stolen.”
Section 13A-8-4(a) provides that theft of property in the second degree is the theft of property which exceeds $500 in value but does not exceed $2,500 in value, and which is not taken from the person of another.
Alabama, said the court, has yet to address the extent of evidence necessary to satisfy the “explicit” requirement of Section 13A-8-2(3). To sustain a conviction for theft of property, the state had to prove that Jennifer knowingly obtained or exerted control over property in the custody of a law enforcement agency, which was explicitly represented to her by an agent of the law enforcement agency as being stolen.
The Appeals Court noted that it is a well-established principle of interpretation of law that where the meaning of the plain language of the statute is clear, it must be construed according to its plain language. Courts are instructed to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous. Criminal statutes must be strictly construed to avoid ensnaring behavior that is not clearly prohibited.
A criminal statute, said the Appeals Court, is to be construed strictly, not loosely. Such are the teachings of the cases from 1820 to the present day. Chief Justice Marshall’s statement in 1820 that penal laws are to be construed strictly is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.
A person is not to be subjected to a penalty unless the words of the statute plainly impose it.
The Appeals Court noted that according to the 11th edition of Merriam Webster’s Collegiate Dictionary, the term “explicit” is defined as “fully revealed or expressed without vagueness, implication or ambiguity: leaving no question as to meaning or intent.”
The use of the term “explicitly” in Section 13A-8-2(3), said the court, is not ambiguous. When the plain, ordinary, and commonly understood meaning is applied to the language in Section 13A-8-2(3), it is clear that the legislature intended a person charged under this particular provision of the theft statute have knowledge, beyond that which could be implied, that the property in the custody of the law enforcement agency was in fact stolen.
Here, noted the court, the evidence presented by the state established that the undercover officer and M.B. didn’t explicitly represent to Jennifer that the iPods they were seeking to pawn had been stolen.
Indeed, the lead investigator in this case admitted as much. He testified that the plan was for the officer and an informant to go into the pawnshop, explain that the property was stolen, and see if the pawnshop would take the property. However, he admitted that neither M.B. nor the officer said that the iPods were stolen but merely implied that they were.
The fact, said the Appeals Court, that the undercover officer and M.B. believed that Jennifer “had to have heard” what was said during their conversation because she was close to them simply failed to establish an “explicit representation” as required by Section 13A-8-2(3).
The legislature’s use of the term “explicitly” in the statute connotes a more stringent level of proof than normally required by law. Had the legislature intended to require a lesser degree of proof, it would not have used such a precise term as “explicitly.”
Although the state presented evidence indicating that Jennifer may have had reason to believe that the iPods were stolen, the evidence was insufficient to support a conviction under Section 13A-8-2(3) because no explicit representations were made to Jennifer that the iPods were in fact stolen.
The Appeals Court concluded that for the foregoing reasons, Jennifer’s conviction for theft of property in the second degree had to be set aside and entered a judgment in her favor.
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