County Criminal Court: CRIMINAL LAW – Evidence – Judgment of Acquittal – Appellant’s motion for judgment of acquittal was properly denied as the State presented a prima facie case. Affirmed. Pineda v. State, No. CRC10006343CFAES, (Fla. 6th Cir.App.Ct. May 16, 2011).
NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY
v. Case No: CRC1006343CFAES
Lower No: 10-4541MMAES
STATE OF FLORIDA,
Appeal from Pasco County Court
County Judge Robert P. Cole
Thomas Matthew McLaughlin, Esq.
Kenneth V. Compton, A.S.A.
ORDER AND OPINION
Appellant raises two issues on appeal. Appellant first argues that the trial court improperly denied his motion for judgment of acquittal. Since the State presented a prima facie case, and the jury was free to disbelieve defense witnesses, the trial court properly denied the motion. Appellant also argues that reversible error resulted from improper prosecutorial comments. We find the State did not err in arguing the facts or the law. Therefore, this court affirms the trial court as set forth below.
On September 7, 2009, Appellant was charged with one count misdemeanor petit theft. At the September 14, 2010 trial, Mike Latham testified that he was the loss prevention officer for the Wal-Mart in Zephyrhills for three years. On June 18, 2009, at about 4:30 in the afternoon, he was walking the sales floor. Mr. Latham noticed Appellant and a young woman (Hana Toneff) with a large canvas beach bag that was flat and empty. They went to the health and beauty products, where Appellant picked up two Sonicare refill cartridge kits, valued at about $39 each. After picking them up, they stood in the aisle for a few seconds, and then moved around the corner toward the back. As they cut the corner, Appellant put the product in Ms. Toneff’s bag. Mr. Latham thought that it was odd that Appellant had a towel around his neck instead of in the beach bag. Mr. Latham called his partner (Justin Sumner) when Appellant and Ms. Toneff walked to the cologne. Neither of the loss prevention officers wore anything to indicate that they were loss prevention officers; they wore regular clothes. Appellant picked up four different kinds of perfumes or colognes. Mr. Latham was on the phone with his partner, describing the events to him as they were happening. Mr. Latham did not actually see Appellant put the cologne in the bag, only the Sonicare kits. When Appellant put the toothbrushes in Ms. Toneff’s bag, they were not in plain view. Had Mr. Latham not seen Appellant conceal them, he would not have known the toothbrushes were there. Next, Appellant and Ms. Toneff went to the garden center, where they met another young man (Eric Madden), and exited the store. They did not make any attempt to pay for the items; rather, they went out the sliding glass door into the green house of the garden center where there are no working cash registers. They did not look sneaky trying to leave, but were walking regularly.
Mr. Sumner was outside the garden gate and made the initial stop. The garden center is inside where the registers are located and within the air conditioned part of store. There are registers outside, but they do not work. The stop was made at the garden gate, exiting the garden center on the outside, fenced-in area, where there is no air conditioning. Ms. Toneff was acting nervous, but kind of spaced out. Mr. Sumner told Appellant that he was store security and needed to talk to them. Mr. Latham was standing behind them. They tried to turn around, so Mr. Latham told them that Mr. Sumner needed to talk to them. Appellant stated that if they did not have a video, then he could not be charged with shoplifting. Appellant said that he did not do it. Mr. Sumner responded that he saw him put the items in the bag. Mr. Latham did not recall Appellant offering to pay for the items. Appellant tried to give the excuse that they were going to the truck with the items and then were planning on coming back in to pay for them. Mr. Latham denied threatening to beat them up with an aluminum bottle. Although Wal-Mart had video surveillance, no video was presented in this case.
The policy for loss prevention officers was to stay with law enforcement from start to finish. Appellant was read Miranda. Appellant commented that the items were in the woman’s bag and that he did not do it. They presented Appellant with the woman’s statement that they did it together. Mr. Latham knew who Eric Madden was, but denied being friends with him. Eric Madden was not charged with a crime.
The second loss prevention officer, Justin Sumner, also testified. He was actually watching another suspect when his partner, Mike Latham, called and described Appellant’s and Ms. Toneff’s suspicious behavior. Mr. Sumner changed his focus to Appellant. Mr. Sumner had a perfect view, as Appellant and Ms. Toneff turned down the cologne aisle. When he turned around to get a glimpse of the suspects, Mr. Sumner saw Appellant conceal perfume in Ms. Toneff’s bag in the party aisle. The perfume was not in plain view. Appellant placed his towel on top. Mr. Sumner told Mr. Latham on the phone what they had done. The lady was wearing a bathing suit; both of them had towels around their necks. The bag had appeared empty. Appellant placed four bottles of cologne in her bag, ranging in price from $39 to $50.
Mr. Sumner and Mr. Latham followed Appellant and Ms. Toneff until they went to the garden exit. Mr. Sumner went outside to meet them at the gate, as Mr. Latham followed behind them. They never had a shopping cart or any environmental-type bags. The bag that they had was a large beach bag that could hold a large quantity of items. Mr. Sumner went around the gate to meet them at the alarm systems. There were three subjects by that time, and the loss prevention officers did not want it to go to the road.
Mr. Sumner made contact as soon as they hit the security systems at the last gate. He stepped forward and introduced himself as Wal-Mart security. They were about four feet from the road. They were not in the air conditioned section of the garden department; they were in outside garden—about twenty yards from the last register of inside garden. There were no registers there to pay for anything. Had it not been for Mr. Sumner standing there, the three would have made it to the parking lot. Mr. Sumner told Appellant and Ms. Toneff that he needed to talk to them in the office, get some information, and get their merchandise back. It was the same merchandise that he saw go into the bag. A receipt of the items totaling their retail value was submitted into evidence demonstrating that the items were valued at $239.88 before tax.
There was a video at the time, which was shown to Appellant. Mr. Sumner explained to Appellant that it did not look like they stopped. He tried to calm Appellant down because he was getting really hyped up. Ms. Toneff was also charged; Eric Madden was charged for the drink and trespassing.
Officer Michael Steven O’Donovan with the Zephyrhills Police Department for over seven years responded to a shoplifting call at Wal-Mart. He spoke to Mr. Latham and Appellant. Appellant was read Miranda. Appellant admitted putting two Sonic toothbrush refills and four bottles of cologne in Ms. Toneff’s bag. Appellant did not think that he needed a shopping cart; the bag was simply a means to carry the items. Appellant told him that he had asked Ms. Toneff to wait in the garden center while he went to get his wallet. Appellant also stated that he spoke to a garden employee and had told him the same thing.
At the end of the State’s case, Appellant moved generally for a judgment of acquittal in that the State had not proven a prima facie case for petit theft. The trial court responded, “Well, I think despite what I’d consider unenthusiastic testimony by – at least by this police officer, I think in a – there is ample evidence that the jury could find that Mr. Pineda is guilty of petit theft.”
Frederick Eric Madden, who works at the Lowe’s next to Wal-Mart, testified first for the defense. Mr. Madden knew Appellant because he became friends with his brother in 2006. He had known Appellant for two and a half to three years at the time of trial. Mr. Madden knew Justin Sumner from a party, where they had a conversation about how difficult it was to steal from Wal-Mart.
Mr. Madden was with Appellant, Hana Toneff, and Appellant’s brother at the Wal-Mart in Zephyrhills on June 18, 2009. Their plan was to go to Wal-Mart before heading to the beach. Appellant needed to buy some cologne for a high school graduation present. They were at Wal-Mart a decent amount of time, walking around and talking. Hana Toneff was carrying a beach bag with long shoulder straps and a big base. It was full with about five towels inside; no one was wearing towels. Mr. Madden and Ms. Toneff helped Appellant decide which cologne smelled the best. Appellant took them and started walking. Appellant realized he did not have anything to carry the items, then noticed that Ms. Toneff had a big bag. He asked if it was okay for him to put the cologne on top, while they walked around some more. Appellant put the cologne on top so that it was visible. They looked at it to make sure that the items were still visible because they all knew about the tight security. They did not want to look as though they were stealing anything.
The group next went to the sporting goods section to check out some items. Mr. Madden talked to another friend he had seen for a short time. When they were ready to go to the beach, they left through lawn and garden because it was in the immediate vicinity. Appellant’s truck was parked just outside lawn and garden. As they were “walking just casually, talking, like no problem” out of the garden center, Appellant stopped him and Hana Toneff just as they got to the cash register. Appellant said, “hold on, guys; I’ve got to make sure I’ve got my wallet so we can pay for it, it’s right here.” Mr. Madden took a couple of steps; right as he took the first step outside of Wal-Mart outside the fence, loss prevention stopped them. Appellant and Ms. Toneff were still in the air-conditioned section, before they had actually passed the register. Mr. Madden was the only one to make it past the register, getting as far as just outside where the cars drive in the unair-conditioned part. He did not see Mr. Sumner until the lawn and garden area. The loss prevention officers took them to their room, where they spoke with the loss prevention officers together.
Appellant testified that prior to going to Wal-Mart, they were preparing to go to the beach. Only three of them went inside Wal-Mart; his brother stayed in the car. Appellant was there to buy some graduation gifts, and his friends were there to help him pick them out. Appellant’s sole purpose to go to Wal-Mart was to get some graduation presents, but he forgot his wallet.
Appellant and his friends first went to the pharmacy aisle. They went up and down the aisles to make sure they got the right Sonic toothbrushes for his mother. Appellant kept them in his hands once he picked them up. Next, they went to the cologne aisle to buy cologne for a gentleman. Hana Toneff was already with him, but Mr. Madden met up with them later. There were a lot of people walking around the store. Hana Toneff was holding a small purse under one arm and a large beach bag on the other. She brought the beach bag inside because she had some items, like expensive tanning lotion and some tiny personal objects, that she did not want to lose in the truck. Hana Toneff was also carrying the towels. Appellant was wearing one of the towels that did not fit in the bag around his neck. They were in the cologne aisle for about twenty minutes to buy graduation presents for his brother’s friends. Hana Toneff and Mr. Madden helped. Appellant could not recall the exact brands of cologne, but that there were four of them. Once he picked out the colognes, Appellant held onto them and the Sonic toothbrushes. Appellant eventually asked Ms. Toneff if she could put it on the top of her bag. Appellant testified that the bag was filled to the top with towels, just enough to put something on top without it falling. Appellant put them in the bag. The items were just high enough to be within plain view and still not fall out. Appellant did not use a shopping cart or Wal-Mart carrying baskets. They did not leave for almost half an hour afterwards.
After they were done in the sporting good section, Appellant and his friends started to leave. Appellant did not have his wallet with him because he accidentally left it in the truck. He went to the garden section. There are cash registers inside and one outside. Appellant told them to stay inside while he left to get his wallet. A Wal-Mart employee appeared at the second exit point of the garden section. He was about to check Hana Toneff’s bag, and they were explaining the situation, when they were ambushed by a person in a tie and two other casually dressed men. The two men did not have any visible indication that they worked for Wal-Mart. Appellant constantly asked if they worked for Wal-Mart because they were threatening and hitting him if he tried to move or run. They told Appellant that if he gave them his ID, he could go to his truck to get money to pay for the items. Mr. Sumner did not tell Appellant until they were halfway to the security office that he was with loss prevention. Every time Appellant tried to explain the situation, Mr. Sumner would curse him out. Appellant contacted his brother. His brother barged into the office with his card, willing to pay, but the loss prevention officer cursed him out, demanded that he get out of the office, and told him that Appellant is not allowed to pay. Appellant was not going to walk out of Wal-Mart without paying because he was on felony probation and cannot do anything with a criminal intent.
Appellant renewed his motion for judgment of acquittal without any new grounds, which was also denied. Appellant was found guilty as charged following the jury trial. Appellant was sentenced to time served immediately after trial. Appellant filed a timely notice of appeal on September 28, 2010.
LAW AND ANALYSIS
Appellant’s argument that reversal is warranted because the trial court failed to grant his motion for judgment of acquittal is without merit. In ruling on a motion for judgment of acquittal, a trial court must view the evidence in the light most favorable to the State. State v. Rivera, 719 So.2d 335 (Fla. 5th DCA 1998). Such a motion should not be granted unless there is no view of the evidence that would support conviction. Gudinas v. State, 693 So.2d 953 (Fla. 1997). If there is competent substantial evidence to support the verdict, then an appellate court must uphold the verdict. See, White v. State, 446 So.2d 1031 (Fla. 1984).
Appellant was charged with petit theft, contrary to Florida Statute 812.014(2)(e). Under that section, a person commits theft if he “knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently” deprive another of a right to or a benefit from the property and appropriate the property to his own use or to the use of another not entitled to the use of the property. Section 812.014 has been defined as including the attempt to commit a theft with the words, “or endeavors to obtain or use.” State v. Sykes, 434 So. 2d 325, 327 (Fla. 1983). The facts show that sufficient evidence exists to sustain a conviction for petit theft. See, Jackson v. State, 995 So. 2d 535, 539 (Fla. 2d DCA 2008)(finding if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction).
The State presented a prima facie case that Appellant not only attempted to commit a petit theft, but did commit a petit theft. Loss Prevention Officer Latham testified that he saw Appellant conceal two Sonicare refill cartridge kits into Ms. Toneff’s large, flat bag as Appellant cut the corner to go to another aisle. They were not in plain view, and Loss Prevention Officer Latham would not have known they were in there had he not seen Appellant put them in the bag. Loss Prevention Officer Sumner testified that he saw Appellant put four bottles of cologne into Ms. Toneff’s bag, which were also not in plain view. Two loss prevention officers testified that Appellant made no attempt to pay for anything in the bag, rather exiting through the sliding glass doors into the unair-conditioned green house where there were no operating cash registers. Loss Prevention Officer Sumner testified that he did not stop Appellant until he was twenty yards past the last operating cash register and at the last gate, only four feet from the road. Appellant was still trying to leave when Loss Prevention Officer Sumner stepped in front of him. Loss Prevention Officer Sumner testified that if it were not for him, they would have made it to the parking lot. Appellant’s actions clearly supported his conviction for petit theft.
Although there were some contradictions in the testimony, the credibility of the witnesses was a matter to be determined by the trier of fact. The jury, as the trier of fact, had the superior point to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses. Stephens v. State, 748 So. 2d 1028, 1032 (Fla. 1999). It is for the trial court, not the appellate court, to pass upon the credibility of witnesses. California Club Realty v. Lucca, 517 So.2d 72 (Fla. 3d DCA 1991). As such, this court cannot reverse the trial court’s denial of Appellant’s motion for judgment of acquittal.
Appellant also argues that reversible error resulted from improper prosecutorial comments. It is within the trial court's discretion to control prosecutorial comments made to a jury, and an appellate court shall not interfere unless an abuse of discretion is shown. Occhicone v. State, 570 So. 2d 902, 904 (Fla. 1990). To preserve an allegedly improper prosecutorial comment for appellate review, a defendant must object to the comment and move for a mistrial." Gutierrez v. State, 731 So. 2d 94, 95 (Fla. 4th DCA 1999); see also, Salazar v. State, 991 So. 2d 364, 381 (Fla. 2008) (holding that a defendant does need not request a curative instruction to preserve an improper comment issue for appeal; it is preserved if the defendant makes a timely, specific objection and moves for a mistrial).
Appellant did not object at trial to the prosecutorial comments he now challenges. Appellant’s silence is considered an implied waiver. Clark v. State, 363 So. 2d 331, 335 (Fla. 1978). Thus, this issue was not properly preserved for appellate review and fundamental error must be shown. Brown v. State, 787 So. 2d 229 (Fla. 2d DCA 2001). While the prosecutor neglected to mention the intent element, the comments were not inaccurate and the jury was properly instructed. Since the prosecutor’s comments did not rise to the level of reversible error, Appellant’s claims do not warrant relief. It is therefore,
ORDERED that Appellant’s conviction and sentence is hereby AFFIRMED.
DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 16th day of May 2011.
Original order entered on May 16, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.