Bush v. State
| Decision Date | 25 March 1997 |
| Docket Number | No. 96-416,96-416 |
| Citation | 690 So.2d 670 |
| Parties | 22 Fla. L. Weekly D809 Annie BUSH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Mark C. Menser, Assistant Attorney General, Tallahassee, for Appellee.
Appellant challenges her convictions for one count of grand theft and one count of use or possession of drug paraphernalia. We reverse the grand theft conviction and affirm the conviction for use or possession of drug paraphernalia.
Appellant was charged by information with one count of grand theft of property (namely, a television set and jewelry belonging to Janice Rhodes), one count of contributing to the delinquency of a minor, and one count of use or possession of drug paraphernalia. Approximately five months prior to trial, the state filed a motion to consolidate the instant charges with two other counts of grand theft charged separately. As grounds, the state alleged that the charges were related in that they were based on acts that occurred on the same date and that most of the witnesses were the same. The motion was granted and the cases were consolidated for trial. Sometime during the week prior to trial, however, Judge Smith ordered that the instant charges no longer be consolidated with the two separate charges of grand theft. At the outset of trial, the prosecutor announced that the state intended to elicit evidence of a large amount of stolen property that was found in appellant's home, including evidence related to the severed charges, arguing that the collateral evidence was "inextricably interwoven with this case and it was all found at the same time, and goes directly to the defendant's intent." Defense counsel objected on the basis that the state had failed to provide the defense with the proper notice of intent to introduce collateral crime evidence, as required by section 90.404(2)(b), Florida Statutes. The prosecutor countered that the state was not required to provide notice where the crimes are inseparable and the issue goes to the defendant's knowledge. The prosecutor maintained that it would be a travesty to limit the state to addressing only the small number of items that are the subject of the instant case. Defense counsel then orally moved in limine to prevent the state from introducing evidence of any other burglaries or thefts not related to the instant charges. The trial court denied the motion, ruling that the other two charges were inseparable and that evidence of other stolen property located in appellant's house went to the issue of her knowledge of its presence in her home.
At trial, Janice Schroeder (formerly Janice Rhodes) testified that her house was burglarized in October, 1994. Among the items stolen, she recovered a Toshiba television set and certain jewelry. During the time period of the burglary of Schroeder's home, appellant was living with her three sons, who were under investigation as possible burglary suspects. 1 Appellant's home was searched on two occasions in November 1994. Among the items seized were the television set and jewelry belonging to Janice Schroeder. The police also recovered a myriad of other items, including a Sony television, a radio cassette, speakers, a camera, clothing, and two camcorders. Also found, under appellant's bed, was a clip pouch carrying a pipe, which contained trace amounts of cocaine. Defense counsel objected to the testimony of Detective Chase regarding how much property was seized by the police and how many victims had appeared to claim property. The objection was overruled and Detective Chase proceeded to name three such victims, in addition to Janice Schroeder, and the property recovered by each. Defense counsel's hearsay objection to the introduction of photographs of this property was also overruled. Defense counsel then argued that the evidence of property recovered from the house, other than that stolen from Janice Schroeder, was becoming a feature of the trial. The trial judge ruled the evidence admissible. A subsequent motion for mistrial, predicated on the prejudicial nature of the collateral crime evidence, was denied.
Defense counsel moved for a judgment of acquittal on all counts. The motion was denied as to the grand theft and possession charges, but granted as to the charge of contributing to the delinquency of a minor. During closing argument, the prosecutor stated:
[T]his case is about the defendant enjoying the fruits of her children's stolen property. And the issue is, was she able to exercise control over the property? Yes. It was in her house. And did she know it was stolen? That's really what we are here for.
And the State has proved that to you. You know, you can have maybe one stolen item and it could have slipped by her and she wouldn't have known it was stolen. Maybe two stolen items. But, when you have a stolen TV and then a twenty-seven inch stolen TV and a stolen camcorder, and jewelry, and it just goes on, and a vacuum cleaner and a knife--let me show you these one more time.
And these aren't evidence for you to bring back, but it is for you to consider so far as it shows that she knew her house was full of stolen property. And any other position defies common knowledge.
Let me go through some of the property real quick. There's various stereo components. And it's hard to judge the size in these photographs, but you can imagine. There are one, two, three, four, five, six stereo components that were found in her living room. There's all this jewelry. Even kitchen things, like Tide. And there's a block of knives that is behind it that's hard to see.
More jewelry. This is a camcorder. These were testified to be three foot stereo speakers that were in her bedroom--I mean her living room. Here's another stereo receiver type thing. Here's...
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Kennedy v. Crews
...90.403; Ballard v. State, 899 So. 2d 1186 (Fla. 1st DCA 2005); Canion v. State, 793 So. 2d 80 (Fla. 4th DCA 2001); and Bush v. State, 690 So. 2d 670 (Fla. 1st DCA 1997). None of the cases petitioner cited relied upon federal grounds, and nothing in petitioner's direct appeal argument would ......
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Durousseau v. State
...the trial. Allowing the collateral crime evidence to become an overwhelming feature of the trial is reversible error. Bush v. State, 690 So.2d 670, 673 (Fla. 1st DCA 1997). However, this Court has stated that “collateral crime evidence does not become an impermissible feature of the trial s......
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Billie v. State
...Fla. Stat. Billie also claims on appeal that the State made the prior "bad acts" a feature of the trial. We agree. In Bush v. State, 690 So.2d 670 (Fla. 1st DCA 1997), the Court explained that admission of excessive evidence of other crimes is fundamental error to the extent that it becomes......
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Durousseau v. State Of Fla., SC08-68
...the trial. Allowing the collateral crime evidence to become an overwhelming feature of thetrial is reversible error. Bush v. State, 690 So. 2d 670, 673 (Fla. 1st DCA 1997). However, this Court has stated that "collateral crime evidence does not become an impermissible feature of the trial s......