Bogren v. State
| Decision Date | 18 December 1992 |
| Docket Number | No. 91-1030,91-1030 |
| Citation | 611 So.2d 547 |
| Court | Florida District Court of Appeals |
| Parties | 18 Fla. L. Week. D19 Ronald BOGREN, Appellant, v. STATE of Florida, Appellee. |
James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and James N. Charles, Asst. Atty. Gen., Daytona Beach, for appellee.
Ronald Bogren appeals his convictions and sentences for one count of grand theft in the second degree in violation of sections 812.014(1) and (2)(b), nineteen counts of grand theft of the third degree in violation of sections 812.014(1) and (2)(c)(1), and one count of petty theft, a misdemeanor.
Bogren and his wife, Linda, were sole stockholders of a Florida corporation incorporated in 1980 to conduct a travel agency business known as Lin's Travel Agency, Inc., in Lake County. The business did well until sometime in 1988 and finally closed on March 8, 1989. Eight days later, the Bogrens filed a petition for personal bankruptcy. The state later filed an information against Ronald Bogren for theft of advance payments made by customers who had not received the travel arrangements for which they had paid. Bogren was found guilty after a jury trial.
In this appeal, Bogren challenges the trial court's exclusion of certain evidence he sought to introduce, the denial of his motion for mistrial after the prosecutor suggested in his closing argument that the victims' funds were used to pay a gambling debt, and the sufficiency of the evidence to sustain his conviction. We find that a jury could lawfully conclude from the evidence presented that Bogren did commit the alleged crimes, and, therefore, we find no merit in his additional challenge that a judgment of acquittal should have been granted at the conclusion of the state's case. The remaining points raised by Bogren are discussed below.
The primary basis for the state's charges against Bogren is that, beginning sometime in 1988 and continuing until the business closed in 1989, Bogren accepted payments in advance from customers for travel arrangements and knew at the time he accepted the payments that the travel would not be provided. Instead of paying the providers of the travel services, it is alleged, Bogren diverted the funds for other purposes. While there exists no requirement that the advance payments be placed in a trust or escrow account, the state argued, when Bogren accepted the advance payments, his corporation was on the brink of collapse, he failed to pay providers for the travel anticipated by the customers, and he knew the customers would never realize their travel plans.
The state's proof of the requisite criminal intent consisted of circumstantial evidence of overdue accounts payable and loans, overdrawn bank accounts, late payment of obligations, business expenses, and distributions of cash to him and his wife from customer advance payments at a time when the state alleged no person could reasonably believe that the corporation could survive. Additionally, customer/victims testified about their advance payments and the nonrealization of their travel arrangements, and Bogren's former bookkeeper testified about Bogren's instructions to distribute checks when the bank account was substantially overdrawn. The bookkeeper also testified that he heard Bogren make false excuses to customers who demanded refunds of advance payments made for travel arrangements that were never received. Nevertheless, Bogren continued to allow customers to make advance payments for trips that were never realized.
During the trial, Bogren attempted to introduce testimony of certain customers who either received the travel arrangements for which they paid or received a refund. He also attempted to introduce evidence of his personal bankruptcy. Bogren argues that the trial court erred by excluding testimony of his personal bankruptcy and of customers who would testify that they were satisfied with travel arrangements made by the travel agency. He asserted at trial that the bankruptcy testimony was important to show lack of intent to commit the crimes in that he did not leave town after the travel agency closed, and he tried to handle his money problems "in a legal manner set out by the law." He argued that the testimony of customers who paid for and received the travel arrangements should be allowed because the allowance of testimony by only those who did not receive travel arrangements for which they had paid implies that Bogren continued the agency's business when it was financially troubled solely to defraud customers. The state successfully objected to the relevancy of this testimony.
The parties have not been particularly helpful to us in their briefs in supporting either the introduction or exclusion of this testimony. Bogren relies upon section 90.402, Florida Statutes (1989), which provides that "[a]ll relevant evidence is admissible, except as provided by law." The state simply cites State v. McClain, 525 So.2d 420 (Fla.1988), for the proposition that it is within the trial court's discretion to weigh the probative value of the evidence against the danger of unfair prejudice, and Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), for the proposition that discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable. Bogren has provided as a supplemental authority Estano v. State, 595 So.2d 973 (Fla. 1st DCA 1992), a case which supports his position.
While we would normally agree with the state's argument that evidence of good deeds would be irrelevant in a criminal trial, it may be relevant when the criminal intent of the accused must be shown by circumstantial evidence during the operation of an otherwise legitimate business. Prior good deeds would likely be irrelevant in a trial involving charges of embezzlement by a bookkeeper or robbery where criminal intent is implied by the act. In the instant case, however, one cannot infer that Bogren had a criminal intent simply because he accepted funds from customers for travel while operating a travel business which was experiencing financial difficulties. More is required and the state had the difficult chore of proving Bogren's intent by presenting evidence of surrounding circumstances. This chore should not be made easier by limiting the evidence to testimony of witnesses who paid for but did not receive their travel arrangements when other witnesses existed who did receive that for which they paid or received a refund. The testimony of these witnesses is important in evaluating the surrounding circumstances that aid in showing Bogren's intent or lack of intent to commit theft. We believe that the trier of fact cannot fairly determine whether Bogren's actions were governed by poor business judgment or by intent to obtain the funds of the customers in a manner prohibited by the criminal statute if the evidence is...
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Kent v. State, 96-2590
...he said he would use it. Again, this appears to be a fair comment on the victim's testimony and there was no error. See Bogren v. State, 611 So.2d 547 (Fla. 5th DCA 1992), rev. dismissed, 621 So.2d 433 (Fla.1993) (prosecutor's argument that owner of a travel agency used customers' advances ......
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State v. Mercer
...behavior to negate fraudulent intent); United States v. Shavin, 287 F.2d 647, 654 (7th Cir. 1961) (same); Bogren v. State, 611 So. 2d 547, 550-51 (Fla. Dist. Ct. App. 1992) (holding that testimony of satisfied travel agency customers was relevant to the issue of the defendant's intent in ac......
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