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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