Salvatore Bagnara v. State of Florida

189 So. 3d 167, 2016 Fla. App. LEXIS 1037, 2016 WL 320190
CourtDistrict Court of Appeal of Florida
DecidedJanuary 27, 2016
Docket4D14-4093
StatusPublished
Cited by16 cases

This text of 189 So. 3d 167 (Salvatore Bagnara v. State of Florida) 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
Salvatore Bagnara v. State of Florida, 189 So. 3d 167, 2016 Fla. App. LEXIS 1037, 2016 WL 320190 (Fla. Ct. App. 2016).

Opinions

DAMOORGIAN, J.

Appellant, Salvatore Bagnara, appeals his conviction and sentence for one count of burglary of a dwelling’and one count of third degree grand theft after he took a riding mower from his neighbor’s garage. On appeal, Appellant argues that: 1) the State failed-to establish the value of the mower and, therefore, did not prove the charge of grand theft; and 2) the trial court erred by prohibiting Appellant from introducing evidence that the victim did not own the home that Appellant allegedly burglarized. We agree with Appellant and reverse.

The following transpired at Appellant’s trial. The victim was Appellant’s neighbor. She testified that at the time of the burglary, she was in the process of moving out of her house and was primarily moved out with the exception of a few things, including a riding mower. After returning [170]*170to the home after a few days’ absence to collect the remainder of her belongings, the victim noticed the mower was gone and called the police.

On cross-examination, Appellant’s counsel questioned the victim on her ownership of the home. She admitted that the home was foreclosed on, but stated that she thought she had three or four days at the time of the burglary to “get everything out.” At this point, Appellant’s counsel moved to introduce a judgment of foreclosure concerning the burglarized home and the State objected on relevancy grounds. The court sustained the objection, reasoning that the judgment was not relevant to the issue of whether Appellant- committed a burglary,

After the victim réported the mower missing, the officer in charge of the- investigation went to speak to the victim’s neighbors to determine if anyone had seen or ■ heard anything. Appellant was not home at the time, but another neighbor provided the officer with Appellant’s phone number, and the officer called and left a message. Appellant called back and explained that he took the mower under the impression that it was abandoned, and returned it back to the neighbor’s driveway. The officer never saw the mower, but valued it at $500 based on what he thought the average used riding mower was worth. The victim testified that her husband purchased the mower in 2011 for “about seyen hundred [dollars]”, but admitted she was not sure of its worth at the time of the burglary, although she- assumed, it was over $300. She acknowledged the mower’s tires were deflated and the seat was ripped, but she thought that the mower still worked.

Appellant and another neighbor testified that they thought the victim had moved out of her house at the time of the alleged burglary. Appellant further testified that in the months leading up to the mower incident, the victim’s house was in foreclosure and was unkempt. Approximately two weeks before the mower was reported stolen, it appeared that the occupants of the home had a “big move day” and moved out. Thereafter, Appellant did not see any of the' residents coming or going from the home. He did, however, see what appeared to be potential buyers checking out the property. One such buyer approached Appellant and said he had been inside the home and seen animals living in poor conditions. While trying to retrieve a cat from inside the home, Appellant saw the mower sitting in the garage and thought it had been left for trash. He explained that the tires on the mower were flat, it was dirty, and “covered with all kinds of junk.” Appellant took the mower and started to clean it up. Shortly thereafter, he received a call from a police officer and after learning that the mower was not abandoned, promptly put it back.

Considering the above evidence, the jury found Appellant guilty of one count of burglary of a dwelling and one count of grand theft in the third degree.

On appeal, Appellant asserts that the State failed to prove the value of the mower, an element of theft. Appellant acknowledges that his counsel failed to challenge the sufficiency of the evidence via a motion for judgment of acquittal and, therefore, concedes that we may only review for fundamental error. As the Florida Supreme Court has outlined, “[i]n order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down into the validity of the trial itself To the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” F.B. v. State, 852 So.2d 226, 229 (Fla.2003) (citations and internal quotations omitted).

[171]*171“[T]he insufficiency of the evidence to prove one element of a crime does not constitute fundamental error, and therefore this claim must first be raised in the trial court to be preserved for appellate review.” Id. at 227 (approving this court’s opinion in F.B. v. State, 816 So.2d 699 (Fla. 4th DCA 2002), which held that the state’s failure to prove the value of items stolen from the victim’s residence did not constitute fundamental error). As Appellant did not raise the issue of the sufficiency of the evidence as to the value of the mower during trial, Appellant’s 'argument on this issue is not cognizable on appeal unless he establishes that his counsel’s performance was deficient enough to constitute ineffective assistance of counsel on the face of the record.

“The general rule is that a claim of ineffective assistance of counsel may not be raised on direct appeal.” Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). “On rare occasions, the appellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” Id.

For example, failure to move for a judgment of acquittal when the State has not proved an essential element of its case, when it is clear that the State could not reopen its case to prove that essential element, amounts to ineffective assistance of counsel that may sometimes be adequately assessed from the record on direct appeal.

Id.

A conviction for grand theft in the third degree requires competent and substantial evidence showing that the defendant stole property with a “value” of between $300 and $20,000. § 812.014(2)(c)l.~3., Fla. Stat. (2013). “Value” is defined as “the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)l., Fla. Stat. (2013).

In Lucky v. State, 25 So.3d 691, 692 (Fla. 4th DCA 2010), this Court outlined the two-pronged test for determining whether the evidence of value elicited by the state at trial is sufficient to withstand a motion for judgment of acquittal. “First, the court must, ascertain whether the person testifying is competent to testify to the value of the property,” and second, “if the person is competent, the court must ascertain whether the evidence adduced at trial is sufficient to prove-that, the property was worth over $300 at the time of the theft.” Id. (citations and internal quotations omitted).

“ ‘With regard to the first prong ... an owner is generally presumed as competent to testify to the value of his stolen property.’” I.T. v. State, 796 So.2d 1220, 1221-22 (Fla. 4th DCA 2001) (quoting Taylor v. State, 425 So.2d 1191, 1193 (Fla. 1st DCA 1983)); see also State v. Hawthorne, 573 So.2d 330, 333 n. 6 (Fla.1991).

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Bluebook (online)
189 So. 3d 167, 2016 Fla. App. LEXIS 1037, 2016 WL 320190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salvatore-bagnara-v-state-of-florida-fladistctapp-2016.