Warmington v. State

86 So. 3d 1188, 2012 WL 1448128, 2012 Fla. App. LEXIS 6542
CourtDistrict Court of Appeal of Florida
DecidedApril 27, 2012
DocketNo. 3D10-1028
StatusPublished
Cited by3 cases

This text of 86 So. 3d 1188 (Warmington 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
Warmington v. State, 86 So. 3d 1188, 2012 WL 1448128, 2012 Fla. App. LEXIS 6542 (Fla. Ct. App. 2012).

Opinions

SHEPHERD, J.

This is an appeal by James Warmington from his conviction for grand theft of a sum of money greater than $20,000 but less than $100,000. Warmington asserts two grounds for reversal: (1) that the investigating officer’s testimony, given over defense objection, that Warmington told the officer, just before he was arrested, he could not provide any documentation to support his position that the money owed was a loan rather than a theft, constituted improper burden shifting on the part of the prosecution; and (2) prosecutorial mis[1189]*1189conduct during closing argument. Finding no merit in either point raised, we affirm the conviction.

Taking the facts in the light most favorable to the State, the State established that Christine Pistol, who had been a student in Warmingtoris real estate class, and her husband, Robert Pistol, approached Warmington, expressing a desire to invest in mortgages. Warmington responded that a friend, Rene Sardina, was interested in borrowing money, secured by a second mortgage on a piece of property he desired to purchase. According to Warmington, Sardina’s credit was such that he could not qualify for a second mortgage loan in the marketplace and, therefore, was willing to pay a higher-than-market, nine-percent interest rate on the mortgage. Warmington functioned as the middleman for the transaction.

On September 10, 2002, the Pistols and Sardina met Warmington and his wife at the Warmingtons’ house for the purpose of closing the transaction. The closing documents, including a promissory note and mortgage, were prepared by Warmington. The Pistols brought two $75,000 checks, representing the loan amount. After Sar-dina signed the promissory note and mortgage, all of the parties travelled together to Warmingtoris bank, where his wife deposited the two checks into the Warming-tons’ personal bank account. Robert Pistol testified that given Warmingtoris role in the transaction as the middleman, he did not find anything suspicious about the fact the money was deposited into the Warmingtons’ bank account.

The Pistols received payments on the loan from October 2002 through 2005. Payments were made from Warmingtoris bank account. When the Pistols stopped receiving payments, they contacted Sardi-na, who stated he never received the $150,000, and was told by Warmington the deal fell through. Warmington testified the mortgage deal fell through, but the Pistols agreed to continue the transaction as a personal loan to Sardina, upon which Sardina simply had defaulted.

Detective Abolsky was assigned as the lead detective to the criminal case, precipitated by the Pistols’ complaint to the authorities after the payments to them ceased. After interviewing the Pistols and Sardina, Detective Abolsky approached Warmington and obtained an interview. Detective Abolsky testified:

[Prosecutor]: When you interviewed Mr. Warmington, how far [sic] is it that it came about?
[Detective]: Well, what I believed to be the complete case file, I went to his home to visit with him.
[Prosecutor]: What [wa]s the purpose of your visit?
[Detective]: The purpose of my visit was to allow him to dispel any alarms that I may have or concerns that he did anything wrong.
[Prosecutor]: And was he able to do that?
[Defense Counsel]: Objection. Burden shifting.
The Court: Sustained.
[Defense Counsel]: We have a motion to object, Judge.
The Court: Yes.
[Prosecutor]: When you went and spoke to him, what was the extent of your investigation?
[Detective]: I advised him of the nature of the investigation. We spoke outside his residence. I began explaining to him what the allegations were and I offered him an opportunity to—
[Defense Counsel]: Objection.
The Court: Sustained.
[Prosecutor]: Your Honor.
[1190]*1190The Court: Continue on.
[Prosecutor]: And what was the result of that conversation?
[Detective]: Well, Mr. Warmington had indicated to me that a loan had been funded to Mr. Rene Sardina and that Mr. Sardina was no longer paying on the loan. The loan was comprised basically [of] a mortgage or something and as a result he had explained this to the Pistols and subsequently it was a matter he was trying to take care of.
[Prosecutor]: Was the defendant able to produce any documentation?
[Defense Counsel]: Objection. Burden shifting. We reserve—
The Court: Overruled.
[Prosecution]: Was there documentation that day with regards to this explanation he gave you?
[Detective]: No, in fact, he represented that his home was also his office. And when I asked for him to provide any documentation, he couldn’t.
[Defense Counsel]: Objection
The Court [sic]: Same objection as previously noted. We reserve the motion.
The Court: Continued objection. Go ahead.
[Prosecution]: When you had that conversation with Mr. Warmington, what happened?
[Detective]: I placed him under arrest.

At the conclusion of Detective Abolsky’s testimony, Warmington moved for a mistrial, arguing the State improperly shifted the burden of proof to Warmington. The trial judge denied the motion, finding the State did not shift the burden. Warming-ton argues on appeal the trial judge abused his discretion in denying the motion. We disagree.

Burden shifting occurs when the State “invite[s] the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.” Gore v. State, 719 So.2d 1197, 1200 (Fla.1998). An investigating officer’s testimony concerning what he saw, observed, or discovered during the course of his investigation does not shift the burden of proof. It is evidence. In this case, the investigating officer discovered that Warmington did not have copies of certain mortgage documents signed by Sardina at the closing of the transaction at his home. The testimony may or may not have been significant; one might argue that Warmington, who, after all, merely was the middleman in the transaction, would have no need to have a set of the mortgage documents. On the other hand, the fact certainly was material for the jury to hear.1

The defense places its primary reliance on a line of cases where a prosecutor’s questioning at trial resulted in the burden at trial being less than it should be, where the jury is left with the impression that a defendant had an obligation to produce evidence of his innocence at trial, or when the burden at trial, is less than reasonable doubt. For example, in Hayes v. State,

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Related

James Warmington v. State of Florida
149 So. 3d 648 (Supreme Court of Florida, 2014)

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Bluebook (online)
86 So. 3d 1188, 2012 WL 1448128, 2012 Fla. App. LEXIS 6542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warmington-v-state-fladistctapp-2012.