Opinion
No. 3D18-2491
03-11-2020
C.S., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Kayla Heather McNab, Assistant Attorney General, for appellee.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Kayla Heather McNab, Assistant Attorney General, for appellee.
Before SALTER, SCALES, and MILLER, JJ.
ON MOTION FOR REHEARING
MILLER, J.
We grant appellant's motion for rehearing, withdraw our previously-issued opinion and substitute the following in its stead:
Appellant, C.S., challenges an order withholding adjudication of delinquency for committing the offense of grand theft in the third-degree, in violation of section 812.014(2)(c), Florida Statutes (2017). On appeal, C.S. contends the lower tribunal erred in denying his motion for dismissal, as the evidence adduced by the State to demonstrate the value of the purloined items was insufficient to support a finding of delinquency. For the reasons articulated below, we discern no error and affirm.
BACKGROUND
On the morning of March 22, 2017, Domingo Gonzalez, a junior at G. Holmes Braddock Senior High School, unwittingly left his encased cellular telephone atop a school desk, while turning in a class assignment. The device vanished, and, despite an exhaustive search of the classroom, was not recovered.
During the lunch hour, a classmate, Carla Lugones, received information that C.S. was in possession of the telephone. Lugones approached C.S. and expended vigorous efforts to negotiate the return of the device in exchange for a sum of $50.00. The parties met later, at C.S.'s urging, far from the prying eyes of the school surveillance cameras. The telephone was reunited with its owner, but the case and the subscriber identity module ("SIM card") were not. The agreed-upon monies were not furnished at that time. Thus, after returning the cellular phone, C.S. threatened to kill Gonzalez in the absence of prompt payment.
The incident was reported to school authorities, and C.S. was arrested and charged by petition with one count of grand theft in the third degree. The case eventually proceeded to an adjudicatory hearing.
At the hearing, Gonzalez described the telephone as a pristine, newly purchased, black Apple iPhone 7 Plus. He testified he acquired the device approximately one month prior to the theft for $700.00, from a wireless communications retailer. The case and SIM card, neither of which were ever recovered, cost $50.00 and $25.00, respectively, and were procured simultaneously. At the time of the theft, the telephone was unmarred and functioned perfectly.
At the conclusion of the evidence, C.S. sought dismissal. The trial court denied the motion, found C.S. delinquent, withheld adjudication, and imposed a term of supervision. The instant appeal ensued. STANDARD OF REVIEW
"The standard of review that applies to a motion for judgment of dismissal in a juvenile case is the same standard that applies to a motion for judgment of acquittal in a criminal case." A.P.R. v. State, 894 So. 2d 282, 284 (Fla. 5th DCA 2005) (citing J.P. v. State, 855 So. 2d 1262, 1264 n.1 (Fla. 4th DCA 2003) ("Though referred to as a judgment of acquittal, under the Rules of Juvenile Procedure, the proper title of the motion should have been a Motion for Judgment of Dismissal. Notwithstanding, this court uses the same standard on review as for a judgment of acquittal.")); see E.A.B. v. State, 851 So. 2d 308, 310 (Fla. 2d DCA 2003) ; W.E.P. v. State, 790 So. 2d 1166, 1170 (Fla. 4th DCA 2001) ; see also J.L.F. v. State, 887 So. 2d 432, 433 (Fla. 5th DCA 2004) ; M.N. v. State, 821 So. 2d 1205, 1205-06 (Fla. 5th DCA 2002) (applying standard of review for motions for judgment of acquittal in a juvenile case). Accordingly, "[o]ur review of the denial of a motion for judgment of dismissal is de novo." J.W.J. v. State, 994 So. 2d 1223, 1224 (Fla. 1st DCA 2008) (citing E.A.B., 851 So. 2d at 310 ). "A motion for judgment of dismissal should not be granted unless there is no legally sufficient evidence on which to base a guilty verdict." Id. (citing G.D. v. State, 497 So. 2d 1318, 1319 (Fla. 3d DCA 1986) ). "We view the evidence and all reasonable inferences in a light most favorable to the State." Id. (citation omitted).
LEGAL ANALYSIS
In a third-degree grand theft prosecution, the State bears the burden of establishing the property at issue was "[v]alued at $300 or more, but less than $5,000." § 812.014(2)(c)(1), Fla. Stat. (2017). "Value means 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)(1), Fla. Stat. (2017) ; see Bloodsaw v. State, 994 So. 2d 378, 379 (Fla. 3d DCA 2008) ("The general rule under the theft statute is that value means fair market value at the time of the theft.") (citing § 812.012(10)(a)(1), Fla. Stat.).
Grades of larceny hold historical significance, as "in ancient times, the higher grade of this offense was punishable capitally, and that grade was reached at what now would seem an extremely low figure as to value ... [G]rand larceny ... consist[ed] of feloniously stealing the personal property of another, ‘above the value of 12 pence.’ " State v. Hibberd, 123 Or. 490, 262 P. 950, 953 (1928) (citations omitted).
"It has been held that the cost of a thing is some evidence of its value." Atl. Coast Line R. Co. v. Sandlin, 75 Fla. 539, 545, 78 So. 667, 668 (1918) (citation omitted). However, testimony as to purchase price, absent additional evidence as to "the manner in which the [item was] used, the condition and quality of the item[ ], and the percentage of depreciation of the item[ ] since [its] purchase," is insufficient to establish value. Davis v. State, 48 So. 3d 176, 180 (Fla. 4th DCA 2010) (quoting D.H. v. State, 864 So. 2d 588, 588 (Fla. 2d DCA 2004) ).
Accordingly, "[i]n determining the value of property, ... [r]ecourse may be had to the items of cost, as well as the utility and use of the property." Negron v. State, 306 So. 2d 104, 108 (Fla. 1974) (citation omitted), receded from on other grounds by F.B. v. State, 852 So. 2d 226, 228-29 (Fla. 2003) ; see also Pickett v. State, 839 So. 2d 860, 861-62 (Fla. 2d DCA 2003) ("Value may be established by direct testimony of fair market value or through evidence of the original market cost of the property, the manner in which the items were used, the condition and quality of the items, and the percentage of depreciation of the items since their purchase.") (citation omitted). Restated, in rather austere terms, the purchase price of the stolen item, combined with "other testimony concerning the extent of the diminishment in value," as evidenced by use and condition, is sufficient to establish value. O.B. v. State, 858 So. 2d 1278, 1279 (Fla. 3d DCA 2003) ; see Smith v. State, 305 So. 2d 868, 870 (Fla. 3d DCA 1975) ("[T]he purchase price in this case was sufficient to prove that the property exceeded $100 in value in light of the fact that the [S]tate adduced testimony that the [item] was recently stolen and was still in good condition (‘almost brand new’) at the time of the theft.") (citing Martin v. State, 260 So. 2d 238 (Fla. 3d DCA 1972) ).
"[O]rdinarily the owner of personal property is presumed to have such familiarity with it as to know pretty nearly, if not actually, what it is worth." Sandlin, 75 Fla. at 545, 78 So. at 668 (citations omitted). In the instant case, the uncontroverted testimony of the victim established the purchase price of the telephone was $700.00 and the SIM card, $25.00. Therefore, the items bore an aggregate cost of more than double the statutory threshold. Both the phone and the SIM card were acquired a mere month before the theft. At the time the crime was perpetrated, the device was unsullied, fully operating, and in its original condition. Hence, the State demonstrated "more than just the purchase price and that the phone was in working order." K.W. v. State, 983 So. 2d 713, 715 (Fla. 2d DCA 2008).
"We note that an owner of property is generally qualified to testify as to the fair market value of his property." State v. Hawthorne, 573 So. 2d 330, 333 n.6 (Fla. 1991).
No direct inquiry was made regarding the condition of the SIM card. However, the record reflects that prior to its removal, it was indeed functional and in use.
Our courts have determined that "[e]lectrical components ... are subject to accelerated obsolescence because manufacturers are constantly releasing new, improved technology at lower prices." Y.R. v. State, 226 So. 3d 1008, 1009 n.2 (Fla. 3d DCA 2017) (quoting Lucky v. State, 25 So. 3d 691, 692 (Fla. 4th DCA 2010) ). However, here, the recency of obtainment, along with the condition and utility of the telephone, supported the trial court's reasoned determination that any depreciation in value was de minimis. See Lucky, 25 So. 3d at 693 ("On the other hand ‘purchase price and "other circumstances" can be sufficient evidence of market value in the appropriate case.’ ") (quoting Pickles v. State, 313 So. 2d 715, 717 (Fla. 1975) ).
Our conclusion today is consistent with "a robust ‘consensus of cases of persuasive authority.’ " Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 2084, 179 L. Ed. 2d 1149 (2011) (citation omitted); see Totten v. State, 166 So. 3d 32, 35 (Miss. 2015) (Evidence "presented to show that the purchase price of the stolen items—several of them purchased recently before the burglary—was at least $1,860 ... [was] sufficient ... for a reasonable jury to infer that the value of the items was equal to or greater than $500 at the time of the theft."); State v. Gartner, 263 Neb. 153, 638 N.W.2d 849, 860 (2002) ("Evidence of cost together with evidence concerning age, condition, and utility of the stolen item may afford a basis for determining value.") (citation omitted); State v. Spears, 184 Ariz. 277, 908 P.2d 1062, 1075 (1996) ("Because the truck in this case was not unique [and the evidence established that it was operable and in good condition], we find that the [S]tate offered sufficient evidence at trial from which the jury could infer that the truck was worth between $750 and $1500."); Anderson v. State, 871 S.W.2d 900, 903 (Tx. App. 1994) ("Where the owner of property testifies that a short time before the theft he paid a certain sum of money for the property, this is sufficient to make a prima facie case of the fair market value of the item unlawfully taken.") (citation omitted); People v. White, 167 A.D.2d 256, 257, 561 N.Y.S.2d 756 (N.Y. App. Div. 1990) ("The value of the stolen property at the time of the crime may be ‘established by proof of the original cost of the item reduced to reflect the actual condition of the property, in terms of how long it has been used and its state or utility damage."); Roundtree v. State, 191 Ga.App. 423, 382 S.E.2d 173, 174 (Ga. Ct. App. 1989) (finding evidence that the microwave and coffeemaker were purchased approximately four months before the theft and were in good condition, coupled with the value of the stolen television was "sufficient to enable the jury to determine that the value of the stolen property exceeded $500") (citation omitted); Brewer v. Commonwealth, 632 S.W.2d 456, 457 (Ky. Ct. App. 1982) (finding testimony by the owner of the two-month old, unwrecked stolen motorcycle regarding its value was sufficient to "enable the jury to make an informed conclusion that the cycle was worth more than $100.00 in value") (citation omitted); People v. Langston, 96 Ill.App.3d 48, 51 Ill.Dec. 532, 420 N.E.2d 1090, 1095 (Ill. App. Ct. 1981) ("[T]he jury's finding that the value of the items exceeded [the statutory requirement of being in excess of] $150 was supported by the evidence beyond a reasonable doubt."); State v. Moody, 113 N.H. 191, 304 A.2d 374, 374 (1973) (finding the purchase price of a stolen generator was sufficient evidence of market value where the purchase was recent and the property was in good condition); State v. Brown, 209 Kan. 493, 496 P.2d 1340, 1341 (1972) (Where the owner testified about recently purchasing and utilizing the stolen motorcycle, "the jury could properly infer that an operable motorcycle could not depreciate in value 87% in forty-three days.").
Accordingly, "[i]n viewing this evidence in a light most favorable to the State, a rational trier of fact could find beyond a reasonable doubt" that the aggregate value of both items at the time of the theft was $300.00 or more. K.W., 983 So. 2d at 716. Thus, we conclude the evidence amply supports the judicial finding under review and decline to embrace the assertion of error.
Affirmed.