5D03-2658 Franklin Nooe v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-2658

Case Date: 01/03/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2004

FRANKLIN W. NOOE, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed January 7, 2005 Appeal from the Circuit Court for Volusia County, Julianne Piggotte, Judge. Michael H. Lambert and Steven J. Guardiano, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee. PLEUS, J. The defendant appeals from his conviction for grand theft of over $100,000, a first degree felony, and his sentence of 35 months imprisonment followed by 25 years probation. The charge arose out of financial irregularities which occurred at the Rape Crisis Center of Volusia County, Inc., (Center) while the defendant served as its executive director. The defendant raises two primary issues on appeal, the first relating to the Case No. 5D03-2658

denial of his motions for judgment of acquittal. The second asserts he is entitled to a new trial because of the prejudicial admission of evidence and improper closing argument by the prosecutor. We conclude this appeal presents but one meritorious issue. Did the State prove a grand theft felony of the first degree, or does the evidence establish only a grand theft felony of the second degree? The defendant was charged by amended information with one count of grand theft over $100,000, a first degree felony, with the charging document specifically alleging: COUNT I: IN THAT FRANKLIN W. NOOE, from on or about January 1, 1998, through and including August 31, 2001, in the County of VOLUSIA and State of Florida, did knowingly obtain or use, or endeavor to obtain or use cash or U.S. currency of a value of $100,000.00 or more, which was the property of the FLORIDA DEPARTMENT OF HEALTH and/or THE RAPE CRISIS CENTER OF VOLUSIA COUNTY, INC., or any other person not the defendant(s), with the intent to permanently or temporarily deprive the FLORIDA DEPARTMENT OF HEALTH and/or THE RAPE CRISIS CENTER OF VOLUSIA COUNTY, INC., or any other person not the defendant(s) of the property or benefit therefrom or to appropriate the property to the use of FRANKLIN W. NOOE or to the use of any person not entitled thereto, contrary to Florida Statute 812.014(1) and (2)(a). (1 DEG FEL) The defendant argues that the trial court erred in denying his motions for judgment of acquittal because the State failed to prove that: (1) he was involved in any theft, or (2) if there was a theft, that it amounted to over $100,000. The defendant maintains that all the evidence showed was that the Center may have been mismanaged during his tenure as executive director but not that criminal conduct had occurred.

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The standard of review applicable to denial of a motion for judgment of acquittal was set out in Bufford v. State , 844 So. 2d 812, 813 (Fla. 5 th DCA 2003): A motion for judgment of acquittal is designed to challenge the legal sufficiency of the evidence. If the State presents competent evidence to establish each element of the crime, a motion for judgment of acquittal should be denied. State v. Williams, 742 So. 2d 509, 510 (Fla. 1 st DCA 1999). The court should not grant a motion for judgment of acquittal unless the evidence, when viewed in light most favorable to the State, fails to establish a prima facie case of guilt. Dupree v. State , 705 So. 2d 90, 93 (Fla. 4 th DCA 1998). In moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the State that the fact-finder might fairly infer from the evidence. Lynch v. State , 293 So. 2d 44, 45 (Fla. 1974). It is the trial judge's task to review the evidence to determine the presence or absence of competent evidence from which a jury could infer guilt to the exclusion of all other inferences. State v. Law, 559 So. 2d 187, 189 (Fla. 1989). We review the record de novo to determine whether sufficient evidence supports the verdict . Williams v. State, 742 So. 2d at 511. (Emphasis in original). Before addressing the evidence, analysis of the omnibus theft statute, section 812.014, Florida Statutes, is necessary. This statute includes a variety of offenses related to unlawful appropriation of property, including larceny, obtaining by false pretenses and misappropriation. Crawford v. State , 453 So. 2d 1139 (Fla. 2d DCA 1984). See also Thomas v. State , 584 So. 2d 1022 (Fla. 1st DCA 1991). In particular, the theft statute provides: A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property.

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