07-4353 ANTONIO BERNARD WHITE, v. STATE OF FLORIDA

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State: Florida

Court: Florida First District Court

Docket No: 07-4353

Case Date: 10/31/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA ANTONIO BERNARD WHITE, Appellant, v. STATE OF FLORIDA. Appellee. _____________________________/ Opinion filed October 31, 2008. An appeal from the circuit court for Escambia County. Paul A. Rasmussen, Judge. Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant. Bill McCollum, Attorney General, and Shelly A.R. Chichester, Assistant Attorney General, Tallahassee, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D07-4353

WEBSTER, J. In this direct criminal appeal, appellant seeks review of convictions, following a jury trial, for burglary of an occupied dwelling and grand theft. He contends that (1) as to both charges, the trial court committed reversible error when it sustained the state's hearsay objection to his testimony intended to demonstrate a lack of intent,

which is an essential element of both offenses; and (2) as to the grand theft charge, the trial court committed reversible error in denying his motion for judgment of acquittal on the ground that the evidence had been legally insufficient to establish the value of the property allegedly taken. We agree with appellant on the latter point. However, we disagree as to the former. Accordingly, while we affirm appellant's burglary conviction, we reverse the grand theft conviction and remand with directions that the trial court enter judgment for petit theft, and sentence appellant to time served on that conviction. I. At trial, the victim testified that she saw appellant and another person steal a heavy generator, which she had purchased some two years earlier for $1,100, from a shed attached to her house. As the offense was occurring, the victim yelled "stop," screamed loudly and told the two men that she was going to call the police. The two stopped what they were doing, turned, and stared at the victim. The victim became frightened. She ran into her house and dialed 911 to report the theft. A short time later, police apprehended appellant and another person in the vehicle the victim had described. The generator was in the back seat. At the conclusion of the state's case, appellant moved for a judgment of acquittal on the grand theft count, arguing that the count charged theft of property having a value of more than $300 but less than $5,000, 2

but that no evidence had been presented as to the value of the generator on the day it was taken. The trial court denied the motion, stating simply that "[t]he jury c[ould] determine what the value was at the time that the generator was stolen." Appellant then took the stand. During his testimony, the state objected to a question, arguing that the question called for inadmissible hearsay. Appellant was permitted to proffer proposed testimony out of the presence of the jury. Appellant testified that the other person in the car when they were apprehended was his nextdoor neighbor, whom he had known for roughly two years. According to appellant, his neighbor asked him for a ride to the victim's house so that the neighbor might pick up a generator that the neighbor said the victim had given him in return for work he had done for her. Appellant said that he had no idea that the neighbor intended to steal the generator, or that the neighbor had ever before been involved in any illegal activity. The state again objected that the testimony constituted inadmissible hearsay. Appellant's lawyer responded that the testimony was not hearsay at all, because it was not being offered to prove the truth of the matter asserted but, rather, was being offered to establish that appellant lacked the specific intent which was an essential element of both offenses. The trial court sustained the state's objection. The jury found appellant guilty of burglary of an occupied dwelling and grand theft, as charged, and the trial court entered judgment accordingly. This appeal follows. 3

II. A. Rulings regarding the admissibility of evidence are generally subject to an abuse of discretion standard of review. See Ray v. State, 755 So. 2d 604, 610 (Fla. 2000) ("Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion") (citing Alston v. State, 723 So. 2d 148 (Fla. 1998)). However, such discretion is circumscribed by the rules of evidence. See Sybers v. State, 841 So. 2d 532, 545 (Fla. 1st DCA 2003) (quoting from Nardone v. State, 798 So. 2d 870, 874 (Fla. 4th DCA 2001)). B. "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

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