Henry v. State

133 So. 3d 1034, 2014 WL 52801, 2014 Fla. App. LEXIS 152
CourtDistrict Court of Appeal of Florida
DecidedJanuary 8, 2014
DocketNo. 4D12-1502
StatusPublished
Cited by5 cases

This text of 133 So. 3d 1034 (Henry v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henry v. State, 133 So. 3d 1034, 2014 WL 52801, 2014 Fla. App. LEXIS 152 (Fla. Ct. App. 2014).

Opinion

GERBER, J.

The defendant, who used a worthless check to buy music recording equipment from the seller, argues that the trial court erred in denying his motion for judgment [1035]*1035of acquittal on the charges of grand theft of property valued at $100,000 or more and obtaining property in return for a worthless check. On the grand theft charge, the defendant argues the state: (1) failed to prove that he obtained the seller’s equipment with an intent to either permanently or temporarily deprive the seller of the equipment; and (2) failed to rebut his reasonable hypothesis of innocence that his failure to fully pay for the equipment amounted to no more than a civil breach of contract. We disagree with the defendant’s arguments on the grand theft charge and write to discuss our affirmance of that conviction. We affirm without further discussion the defendant’s conviction for obtaining property in return for a worthless check.

At trial, the state presented the following evidence. The seller placed an advertisement to sell various pieces of music recording equipment and the seller’s lease interest in a recording studio which housed the equipment. The defendant responded to the advertisement. The defendant told the seller that he was a record producer who recently moved to the area and was looking for a studio near his home. He said that he already' owned a recording console worth half-a-million dollars and needed to house it in a studio. Based on those representations, the seller developed confidence in the defendant’s ability to purchase the equipment and the lease.

Soon after, the seller and the defendant executed an asset purchase agreement in which the defendant agreed to purchase the seller’s equipment for $125,000. Attached to the agreement was a list of the equipment being purchased and their assigned values. Upon execution of the agreement, the defendant paid a $12,500 deposit to the seller by cashier’s check. The deposit payment allowed the defendant to have unlimited access to the seller’s recording studio and equipment. The defendant was to pay the remaining $112,500 balance to the seller by cashier’s check or other certified check at a scheduled closing, at which time the defendant would take over the seller’s lease of the studio. If the transaction did not close due to the buyer’s action, then the seller would keep the deposit as liquidated damages and not as a penalty.

At the scheduled closing, the defendant gave the seller a personal check for the $112,500 balance. The defendant told the seller that he did not have time to go to the bank to obtain a cashier’s check. The seller took the defendant at his word and accepted the personal check. The seller took the defendant to the studio’s leasing office. The lease was transferred from the seller to the defendant, and the defendant paid two months’ rent totaling $17,000.

The following day, the seller deposited the defendant’s personal check. The seller’s bank returned the check because the defendant’s account contained insufficient funds. The seller contacted the defendant. The defendant said “there was a mess-up at the bank, a wire must have gotten crossed somewhere; there was money that should have been there that wasn’t there.” The seller believed that the defendant’s excuse sounded reasonable. The seller and the defendant agreed to meet for a second closing ten days later.

At the second closing, the defendant arrived three hours late. He gave the seller another personal check for $112,500. He again told the seller that he did not have time to go to the bank to obtain a cashier’s check. He said that the money was in his account. The seller again accepted the defendant’s personal check.

Four days later, the seller deposited the defendant’s personal check. The seller’s bank again returned the check because the defendant’s account contained insufficient [1036]*1036funds. The seller contacted the defendant. The defendant said “there was a wire problem at the bank, a transfer problem.” The defendant also said that he still wanted to make good on the payment.

A few days later, the defendant dropped off a certified $20,000 check at the seller’s business. That check cleared. However, because the defendant did not pay the full amount owed for the equipment, the seller attempted to call the defendant on a number of occasions to no avail.

Three months later, the seller obtained a civil writ of replevin to re-enter the recording studio and recover the equipment. Upon re-entering the recording studio, the seller observed that some of the “high-end” equipment was missing. The missing equipment’s value, as listed in the parties’ asset purchase agreement, was over $33,000.

The seller contacted the defendant about the missing equipment. The defendant told the seller that the equipment was at a repair shop. The defendant gave the seller a telephone number for the repair shop. The seller called the telephone number four different times, but no one answered.

The seller notified the police about the defendant’s non-payment and the missing equipment. The police subpoenaed the defendant’s bank records. The bank records, stipulated into evidence, indicated that, during the three-month period when the defendant gave the seller his personal checks, there were never funds in his account to cover the amount of the checks.

The state charged the defendant with three counts: (1) grand theft of the seller’s equipment, valued at $100,000 or more, at the time the defendant issued the first worthless check; (2) obtaining the seller’s equipment in return for the first worthless check; and (3) obtaining the seller’s equipment in return for the second worthless check.

After the state presented the evidence described above, the defendant moved for a judgment of acquittal on all charges. On the grand theft charge, the defendant argued the state did not present sufficient evidence to prove that he obtained the equipment with the intent to defraud the seller. The defendant further argued that his partial payments negated any possible finding that he intended to defraud the seller. The trial court denied the motion.

On count one, the jury found the defendant guilty of grand theft as charged. On count two, the jury found the defendant guilty of the lesser included offense of attempting to obtain property in return for the first worthless check. On count three, the jury found the defendant guilty as charged of obtaining property in return for the second worthless check.

This appeal followed. The defendant argues that the trial court erred in denying his motion for judgment of acquittal on the charges of grand theft and obtaining property in return for the second worthless check. As stated above, we affirm without further discussion the defendant’s conviction for obtaining property in return for the second worthless check. Also, the defendant does not appeal his conviction of attempting to obtain property in return for the first worthless check.

Thus, we limit our review to the trial court’s denial of the defendant’s motion for judgment of acquittal on the grand theft charge. Our supreme court set forth the appropriate standard of review in Pagan v. State, 830 So.2d 792 (Fla.2002):

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evi[1037]*1037dence.

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Cite This Page — Counsel Stack

Bluebook (online)
133 So. 3d 1034, 2014 WL 52801, 2014 Fla. App. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-state-fladistctapp-2014.