County Criminal Court: CRIMINAL LAW- Evidence- trial court did not error in granting defendant'smotion for judgment of acquittal after jury verdict of guilty- felonious intent must exist at the time of taking--to prove specific felonious intent, the state can rely on circumstantial evidence, but such circumstantial evidence must exclude every reasonable hypothesis but that of guilt-state failed to establish felonious intent. Order Affirmed. State v. Relford, No. 051938CFAES (Fla. 6th Cir. App. Ct. February 15, 2006). ††







††††††††††† Appellant,


v. ††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Appeal No: 051938CFAES



††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Lower No: CTRC044955MMAWS

††††††††††† Appellee.





Appeal from verdict, judgment and sentence Pasco County Court


County Judge Debra Roberts


James Goodnew, Esq.

Attorney for Appellant


Michael J. Raska, Esq.

Attorney for Appellee





††††††††††† THIS MATTER is before the Court on the state's appeal of the trial court's granting of the defendant's motion for judgment of acquittal after a jury verdict of guilty.After reviewing the briefs and record, this Court affirms the trial courtís decision.

††††††††††† Defendant was charged with one count of Culpable Negligence, and one count of Petit Theft by information on July 1, 2004. At the close of the state's case, defendant moved for judgment of acquittal on both counts. The court heard argument and reserved ruling on the motion. At the close of all evidence, defendant renewed her motion for judgment of acquittal on both counts of the information. Defendant's motion was granted as to count one of the information.The court reserved ruling on defendant's motion for judgment of acquittal until after the jury returned the verdict. The case was submitted to the jury and the jury returned a verdict of guilty on count two of the information. Defendant then renewed her motion for judgment of acquittal as to the Petit Theft count. The court granted defendant's motion for judgment of acquittal. The court held the state had failed to present any evidence inconsistent with the defendant's reasonable hypothesis of innocence.The state filed its timely Notice of Appeal.

††††††††††† On May 9, 2004, the defendant went to the Tires Plus store located at 3732 U.S. 19 in Pasco County, Florida.Defendant requested an oil change service package. The manager, John Gallagher, testified that the defendant had requested the 'good' oil change service which includes an engine flush, tire rotation, topping off all the fluids, as well as a vehicle inspection. He explained that that service costs $19.99 plus tax . David Kemble performed the requested services on defendant'svehicle after defendant signed a work order for the services to be performed totaling $24.99.

††††††††††† After performing the requested services, Kemble , the technician, went to cash defendant out and complete the transaction.At that time, she presented Kemble with a competitor's coupon for the price of $9.95.†† Kemble requested help from Gallagher (the manager) and Gallagher and defendant got into a dispute about the price. Gallagher testified that the defendant basically told him that he had to honor the competitor's coupon.He explained that whether or not the store accepts a competitor's coupon is discretionary and must be for the same services performed. Gallagher also testified that the customer is supposed to present the coupon up front before they actually sign the work order.Gallagher explained that in this case, defendant signed a work order for a 'good' oil change but the coupon she presented did not include all the other services included in the oil change performed.He testified it was just for a basic oil change from one of the competitors. However, Gallagher offered a compromise in the form of a $5.00 discount. The compromise was not acceptable to the defendant. Kemble testified that defendant grabbed her car keys off of the store counter. Defendant then made a phone call while both Kemble and Gallagher continued to work with other customers. No payment was received by Gallagher or Kemble at this point.

††††††††††† Thereafter, Kemble sees defendant get into her car. He then asked Gallagher if she had paid.Gallagher told him that she had not. At that time, both Kemble and Gallagher observe defendant shutting her car door and preparing to leave.Gallagher ran outside to confront the defendant and prevent her from leaving.He stands in front of the defendant's car with is hand motioning her to stop.Gallagher testified that he told the defendant that she had not paid her bill yet but she continued driving forward at him. Gallagher testified that defendant drove directly at him striking him with her vehicle, and then drove off, still not having paid for the oil change.Gallagher then called 911.

††††††††††† Defendant testified that she called the store before hand and was told they would honor the coupon. She also testified that that she had never had any difficulty using other competitor's coupons at the other Tires Plus and she had never had difficulty using a coupon after the services had been done.She explained that she called a different Tires Plus that morning and spoke with the manager, "Coach."She testified that she told him of the situation and he gave her a price of$13.30. She testified that she then made a check out for $13.30. The defendant explained that she did not drive towards Gallagher, he jumped on her car.

††††††††††† Defendant told Deputy Jason Christy of the Pasco County Sheriff's Office that she left a check for $13.30 on the store counter.She explained the situation to him and provided him a carbon copy of the check. Defendant told Deputy Christy she had contacted a Tires Plus store to obtain a price check after the dispute over cost of services.Deputy Christy verified this by calling the Tires Plus store.††

††††††††††† The defense then renewed its motion for judgment of acquittal. After argument, the court granted directed verdict as to Count I; culpable negligence but reserved ruling as to Count II, petit theft. The jury found the appellee guilty of petit theft as charged.The court the heard argument on the defense's motion for directed verdict. The court granted the motion after finding that the state did not prove intent, [1] specifically stating "I can't find that the State has . . . presented testimony contradicting the appellee's reasonable hypothesis of innocence." [2] This Court affirms the decision of the trial court.

††††††††††† Under Florida law, a theft requires proof of a taking with the intent to steal. Bartlett v. State, 765 So. 2d 799 (Fla. 1st DCA 2000). The felonious intent must exist at the time of taking.Adams, III, v. State, 443 So. 2d 1003 (Fla. 2d DCA 1984). "[W]here it clearly appears that the taking was perfectly consistent with honest conduct, although the party charged with the crime may have been mistaken, he cannot be convicted of larceny."Sassnett v. State, 156 Fla. 490, 23 So. 2d 618, 619 (Fla. 1945)(citing to Cooper v. State, 82 Fla. 365 So. 375 (Fla. 1921)).To prove specific felonious intent, the state can rely on circumstantial evidence, but such circumstantial evidence must exclude every reasonable hypothesis but that of guilt.See McGough v. State, 302 So. 2d 751, 755 (Fla. 1974)("[w]here an attempt is made by the state to prove [knowledge and intent] through circumstantial evidence, such proof must not only be consistent with guilt but also inconsistent with any other reasonable hypothesis of innocence").

††††††††††† In this case, all witnesses agree that the dispute was over the amount that should be paid and there is no evidence in this record that the dispute was not legitimate. Thus, there is no evidence that defendant did not intend to pay for the service at the time she contracted for the service.Moreover, the defendant in this case openly admitted from the start that she did not pay the contracted price because she believed Tires Plus would honor the competitor's coupon. In fact, the evidence showed that subsequent to thedisagreement with the manager over whether the coupon would be accepted, the defendant called another local Tires Plus and obtained the cost of services plus fees and taxes if the coupon was honored.This evidence was corroborated through the testimony of Deputy Christy. That raises a presumption of no felonious intent.See Adams, III, v. State,443 So. 2d 1003.(where the 'taking', if any, was open, obvious and undisputed by the defendant there is a presumption of no felonious intent). This Court finds that that presumption was not overcome by the state.


IT IS THEREFORE ORDERED that the ruling of the trial court be AFFIRMED.


DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of February, 2006.


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

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

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




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

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

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


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

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

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


Copies furnished to:

Honorable Debra Roberts

James Goodnew, Esq., A.S.A

Michael J. Raska, Esq., A.P.D


[1] The state argued that the intent was shown by the testimony of Gallagher and Kemble that she left without paying for services she received .The state said 'if you leave without paying for it, you're certainly not intending to pay for it then."The state said that her intent was to deprive them of the value of the services rendered.


[2] The state continually argued that the burden to get past a motion for judgment of acquittal is whether the state presents a theory inconsistent with the appellee's theory of events; not that the theory be proven.

The court acknowledged, that at the time of argument, the case was past JOA; and they were at the point of proving beyond a reasonable doubt.The state responded,"[a]nd thatís been established. You submitted it to the jury.The jury came back with a verdict of guilty. You can't take it away under this reasoning."The court responded, ". . . proving intent. That is what I've got to look at, sir, intent.That's where we're stuck. That's where I'm stuck.So I'm going to grant the motion for directed verdict."