Opinion
No. 80-2232.
January 8, 1982.
Appeal from the Circuit Court, Lee County, Jack R. Schoonover, J.
Jerry Hill, Public Defender, and Geoffrey A. Foster, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
Appellant seeks reversal of his conviction for grand theft on the ground that the court erred in admitting certain testimony concerning the value of the stolen items.
Appellant was convicted of grand theft for stealing a television set and two bedspreads from the Sheraton Motor Inn in Fort Myers. There was no evidence of the value of the bedspreads. The only testimony concerning the value of the television set came from Mark McClung who was on duty at the motel on the night the property was stolen. The state originally called Mr. McClung to testify concerning the details of the theft. He explained his job as follows:
Q Would you just relate to us what the duties are of the night auditor?
A My duties as night auditor is to balance the books for the day, the daily — all transactions going on through the day. I balance those. If there's an error I correct it. I bring everything into balance and add it up for the next day. And while doing this, I take care of the front desk, checking in guests and answering the phone and doing what is necessary.
Q Do you check in people and check them out and so forth?
A Yes.
Q You're more or less in charge at the time of the —
A Yes, sir.
On redirect examination, the following occurred with respect to the value of the television set:
Q Mr. McClung, being the night auditor and so forth, in control of the property of the Sheraton, do you have any idea as to the value of the television that was taken?
MS. MONTGOMERY: Your Honor, I object to that. I don't believe he's been qualified to give an opinion as to the value.
THE COURT: Objection overruled. He's testified as custodian.
THE WITNESS: $250 minimum.
BY MR. NEEL: (Cont'g.)
Q Is that what your opinion is?
A That's my opinion, personal opinion.
On recross, McClung testified as follows:
Q Do you have anything to base your opinion on?
A Base your opinion — ?
Q Do you have anything to base your opinion on?
A No, ma'am. It's just my personal opinion to it being a TV.
Q Have you ever tried to buy a used television set?
A Used television? No, ma'am.
Q Have you ever tried to sell a used television?
A No, ma'am.
Q So you don't really know anything about used televisions, as far as their fair market value, do you?
A No, ma'am.
The court should not have admitted Mr. McClung's testimony concerning the value of the television set.
Ordinarily an owner may give his opinion as to the market value of personal property. Dickens v. State, 350 So.2d 110 (Fla. 1st DCA 1977); Wright v. State, 251 So.2d 890 (Fla. 1st DCA 1971). Of course, Mr. McClung was not the owner of the television set but rather an employee of the owner. In Salvage Surplus, Inc. v. Weintraub, 131 So.2d 515, 516 (Fla. 3d DCA 1961), the court said, "[O]wnership of property by a corporation does not automatically qualify an officer of the corporation to testify as to its value. The officer must be shown to have knowledge regarding the property and its value sufficient to qualify him."
While we must always give substantial deference to a trial judge's decision to allow a witness to testify as an expert, it must be supported by at least some factual predicate. Here, there is nothing in the record to demonstrate that Mr. McClung possessed the requisite knowledge to testify concerning the market value of the television set. With respect to the court's observation that McClung was a "custodian," a careful analysis demonstrates that he was really only the custodian of the card files which indicated the serial numbers of the television sets in each room of the motel. There is no indication that there was any information on the card pertaining to the stolen television set which would assist in determining its value. The fact that McClung may have been in charge of the premises the night of the theft did not endow him with knowledge of the value of all the equipment in the motel. In fairness to Mr. McClung, it is obvious that he did not consider himself an expert.
A careful reading of the two early Oklahoma cases cited by Judge Campbell in his dissenting opinion indicates that it was the competency of the owners' testimony which was in issue in those cases. Further, Mr. McClung's testimony would not have been admissible under section 90.701, Florida Statutes (1979), because it did not meet the requirements of subsection (1) thereof.
90.701 Opinion testimony of lay witnesses.
— If a witness is not testifying as an expert, his testimony about what he perceived may be in the form of inference and opinion when:
(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.
One of the elements of grand theft is that the stolen property was worth at least $100. § 812.014(2)(b)1., Fla. Stat. (1979). Therefore, admitting Mr. McClung's testimony harmed appellant's case because without it there was a lack of proof that the stolen property was worth $100 at the time of the theft. We do not know when or for what price the television set was purchased, and we know nothing about its condition when appellant took it. The fact that the jury saw it when the state introduced it into evidence does not dispense with the necessity of the prosecution presenting some legally admissible proof of market value.
Appellant suggests that we should reduce his conviction to petit theft because this is usually done when the state fails to prove the requisite value in a grand theft case. E.g., Beasley v. State, 394 So.2d 201 (Fla. 4th DCA 1981). Here, however, the court's error was not in failing to grant appellant's motion for acquittal because if we assume, as the court did, that Mr. McClung's testimony was admissible, the court properly denied the motion. The error occurred when the judge overruled appellant's objection to Mr. McClung's testimony. Had he sustained the objection, the state might still have been able to prove the value in some other way, and so it should not be precluded from retrying appellant for grand theft. Therefore, we reverse the conviction for grand theft with directions to enter a judgment of guilt for petit theft unless the state within thirty days of our mandate signifies its intention to retry appellant for grand theft, in which event the court should entirely set aside the prior conviction.
SCHEB, C.J., concurs.
CAMPBELL, J., dissents with opinion.
I respectfully dissent. The television set alleged to have been stolen was a Zenith Chromacolor II color television in working condition at the time it was stolen from the room rented to appellant at the Sheraton Motor Inn in Fort Myers. As stated by the majority, the television set was introduced into evidence for the jury to see. Also as noted by the majority, Mr. McClung, in charge of the motel on the night the television was allegedly stolen, stated his opinion as to its value was, "It's just my personal opinion to it being a TV."
The majority cites Salvage Surplus, Inc. v. Weintraub, 131 So.2d 515, 516 (Fla. 3d DCA 1961), for the proposition that ownership of property by a corporation does not automatically qualify an officer of the corporation to testify as to its value. The court there, however, recognized, as does the majority, that an individual owner of property may testify as to value though not qualified as an expert. In that case the court explained that the rule is based upon the individual owner's "familiarity with the characteristics of the property, knowledge or acquaintance with its uses or purposes, and experience in dealing with it." The court concluded that an officer of a corporation may likewise testify as to value when in the position of having the "knowledge of the character and uses of property as in the case of an individual owner."
It is my opinion that the trial judge here made such a determination in regard to the testimony of Mr. McClung.
Rogers v. O.K. Bus Baggage Co., 46 Okla. 289, 148 P. 837, 839 (1915), states what is in this writer's opinion the preferred rule:
This ruling of the court seems to be upon the theory that it required expert testimony to establish the value of the trunk and the contents thereof, and that the witnesses have not shown themselves qualified by reason of special knowledge or information as to the value of goods of that class and character to place a value thereon. In this the court committed error. It is well established in this state that expert witnesses are not needed to prove the market value of chattels in common use, where such value is within the knowledge of persons of ordinary intelligence and experience, and that, where a witness testifies generally as to the value of articles in common use, it will be assumed that the market value is meant, unless it appears from the testimony of the witness that he bases the value given upon some other consideration. Such has been the holding of this court practically since its organization.
Later, in O.K. Transfer Storage Co. v. Neill, 59 Okla. 291, 159 P. 272, 275 (1916), the court quoted Rogers with approval saying:
Complaint is also made as to the competency of the witnesses who testified. It is not necessary to have experts to testify to the value of household goods and wearing apparel, if the witnesses are reasonably familiar with the goods concerning which they are testifying.
That rule is in harmony with section 90.701, Florida Statutes (1979), providing that non-expert witnesses may offer opinion evidence when "[T]he opinions and inferences do not require a special knowledge, skill, experience, or training."
Finally, as this court held in Harbond, Inc. v. Anderson, 134 So.2d 816 (Fla. 2d DCA 1961), the qualification of a witness to testify as to value must be left in large part to the discretion of the trial court. Judge Downey writing in Division of Administration v. Saemann, 399 So.2d 359, 361 (Fla. 4th DCA 1981), quotes Harbond with approval and adds further, "[P]rofessor Wigmore describes the trial court's discretion in this area as an almost unqualified discretion."
I would affirm the judgment and sentence of the trial court.