County Criminal Court: CRIMINAL LAW-Jury Trial-Evidence- trial court did not error in denying appellant's motion for judgment of acquittal - the state is not required to "rebut conclusively every possible variation" of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events-in reviewing a finding of a jury trial, a judgment of conviction is presumed correct and a defendantís claim of sufficiency of the evidence cannot prevail where there is substantial competent evidence to support the verdict-Order affirmed. Arce v. State, No. 04-00038. (Fla. 6th Cir. App. Ct.November 23, 2004 ).

 

 

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

JOSEPH ARCE,

††††††††††† Appellant,

 

vs.††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No: CRC04-00038CFAES

 

STATE OF FLORIDA,

Appellee.

____________________________/

 

 

Opinion filed _________________________.

 

Appeal from verdict, judgment and sentence Pasco County Court

 

County Judge Robert P. Cole

 

Joy K. Goodyear, Esq.

Attorney for Appellant

 

C. Marie King, Esq.

Attorney for Appellee

 

 

ORDER AND OPINION

 

††††††††††† THIS MATTER is before the Court on the defendantís appeal of the judgment and sentence entered by the Pasco County Court after a jury trial.After reviewing the briefs and record, this Court affirms the trial courtís decision.

††††††††††† On November 9, 2001, Richard Young, owner of Find It First Locating Service, Inc., fired Joseph Arce for his inadequate job performance. Young testified that Arce was angry when he was fired and used a lot of profanities. Young explained that after he fired Arce, he told him to give him the keys to the company vehicle.Young testified that Arce told him the keys were in the truck. Young then told him to go out to the truck to get them.Young stayed at the office with his manager, Joe Mancuso, and watched from the door. Young testified that he observed Arce get into the driver's side of the vehicle, sit down and make a striking motion with his right hand.Young could not see exactly what Arce was hitting, but saw Arce's fist come down in a violent motion.Arce then exited the vehicle and began to walk away. Young then went out to the truck to retrieve the keys from the truck's floorboard. Young removed all of the equipment from the truck and brought it back inside to his office to inventory with Mancuso.One of the items found in the truck was the company issued laptop, which was found on the front passenger seat. While looking over the items, Young discovered that the laptop, which had been issued to Arce for his work, was damaged.Both Young and Mancuso explained that the keyboard area was damaged, stating that it was 'concaved'. Young stated that after he discovered the damage to the computer, he went after Arce in order to confront him.Young testified that Arce said "I don't give a [ ] about your computer."Deputy Kelly testified at trial that Arce told him he was willing to repair the computer.

††††††††††† Arce's theory at trial was that he used his computer the day he was fired, he went to the truck when asked for the keys followed by Young, the laptop was damaged by his boss to get even with him, and he made a comment stating that he didn't care about the computer. Arce was the only person to offer contradictory evidence testifying that he had used the laptop all day, did not damage the laptop, and did not offer to repair it.

Arce argues that the trial court committed error in not granting his motion for judgment of acquittal because the only evidence against him was circumstantial and his testimony set forth a reasonable hypothesis of innocence that was not rebutted by the State. This Court disagrees."A motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt."Orme v. State, 677 So. 2d 258, 262 (Fla. 1966).It is the trial judge's proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state.†† Spinkellink v. State, 313 So.2d 666, 670 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). The state is not required to "rebut conclusively every possible variation" of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events. Johnston v. State, 863 So. 2d 271, 283 (Fla. 2003).†† Once that threshold burden is met, it becomes the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. State v. Law , 559 So.2d 187, 189 (Fla.,1989).In reviewing a finding of a jury trial, a judgment of conviction is presumed correct and a defendantís claim of sufficiency of the evidence cannot prevail where there is substantial competent evidence to support the verdict.Terry v. State, 668 So.2d 954 (Fla. 1996).

Because we find that it is clear from the record that the state introduced competent evidence from which the jury could have reasonably rejected Arce's theory,the result reached by the trial court is affirmed.

 

IT IS THEREFORE ORDERED that the judgments and sentences be AFFIRMED.

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of October, 2004.

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† W. Lowell Bray, Circuit Judge

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Primary Appellate Judge

 

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

†††††††††††††††††††††††††††††††††††††††††††††††††††††††††††

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Daniel D. Diskey

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ______________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Stanley R. Mills

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge

 

Copies furnished to:

Honorable Robert P. Cole

Joy K. Goodyear, Assistant Public Defender

C. Marie King,Assistant State Attorney