D.N. v. State, 87-2011

• Decision Date: 04 August 1988
• Docket Number: No. 87-2011,87-2011
• Citation: 529 So.2d 1217,13 Fla. L. Weekly 1828
• Parties: 13 Fla. L. Weekly 1828 In the Interest of D.N., a Child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1217

529 So.2d 1217

13 Fla. L. Weekly 1828

In the Interest of D.N., a Child, Appellant, v. STATE of Florida, Appellee.

No. 87-2011.

District Court of Appeal of Florida,

First District.

Aug. 4, 1988.

Rehearing Denied Sept. 14, 1988.

Michael E. Allen, Public Defender, and Maria Ines Suber, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

This is an appeal from an order adjudging appellant, D.N., delinquent and placing him on community control. The state charged appellant with grand theft of an automobile as the result of an incident occurring on July 10, 1987, and with obstruction of police officers in the performance of their duties arising out of an incident occurring on July 17, 1987. In reference to the grand theft charge, appellant filed a motion to suppress statements made to law enforcement investigators on the grounds that his Miranda rights were violated and his statements were not voluntary. Appellant entered a plea of no contest to the obstruction charge. The court denied the motion to suppress, accepted the no contest plea to the obstruction charge, and held an adjudicatory hearing on the grand theft charge.

The state presented testimony from Vinson Burgess that appellant planned to meet him and a friend at a Tallahassee car dealership because they were going to "take two cars" (R. 99). Appellant did not arrive at the planned time, and Burgess and Garrett went ahead and stole a 1987 gray Buick LeSabre, which is the basis of the charge against appellant (R. 97, 98). Burgess stated that after he and Garrett left the dealership, they picked up appellant as he was walking along the road in Tallahassee. They also picked up four other boys and proceeded to drive the car to Quincy and then to Orlando (R. 97-99, 101). Burgess testified that at first the boys, including appellant, did not know the car was stolen, but before they left Tallahassee he told them it was stolen (R. 98, 99). On July 9, 1987, while traveling through Madison County on their return from Orlando, the boys were stopped for suspected involvement in a gas theft (they filled the tank and drove off without paying) (R. 67, 99). Deputy Sheriff Willie Odom, the officer who stopped the car, testified that he suspected that the car was stolen and advised the boys that he was going to place them under arrest (R. 68). He stated that he read the boys their rights and then took them to the station (R. 68, 69). Odom stated that he had difficulty determining whether the car was stolen because it was new, but did verify that the tag was stolen (R. 69). He stated that he and another officer tried to get statements from the boys, but that their stories were confusing and he eventually released them. ¹

State law enforcement investigators John Stevens and Doug Norman also testified for the state. Investigator Stevens testified that on July 23, 1987 (several days after the Madison County incident), after a high speed chase, he stopped a Toyota that he suspected was stolen. Appellant, who was a passenger in the Toyota, bailed out of the car while it was still moving and subsequently was apprehended by Stevens (R. 85). This incident gave rise to the obstruction charge. ² Stevens stated that he took appellant to the police station and advised him of his constitutional rights, and that appellant waived those rights (R. 85, 86). ³ He stated that he advised appellant that he was under investigation concerning the theft of the Toyota, but did not charge appellant with anything at that point (R. 86). He interviewed appellant, and when asked whether appellant told him anything about the 1987 gray Buick LeSabre, Stevens replied "No" (R. 88).

Investigator Norman testified that later on July 23, 1987, he interviewed appellant in reference to a charge of "grand theft auto and a pursuit." Norman stated that appellant had been arrested on this charge, and that appellant had been advised of his Miranda rights and had voluntarily waived them (R. 91). Norman stated that appellant talked to him about several vehicle thefts in which he had been involved, and that appellant mentioned that he, along with two or three other people, had been stopped in Madison County in reference to the stolen Buick (R. 91, 92). Norman testified that appellant stated he knew the cars were stolen and was just going along for the ride (R. 92). Norman further testified that appellant said he was one of a group of boys who were taking cars from Tallahassee to sell in Miami or Orlando, and that appellant voluntarily mentioned the stolen Buick, stating that they took it from Tallahassee and that he knew when he got into the car that it was stolen (R. 92-94).

At the close of the state's case, appellant's attorney moved for a judgment of acquittal on the ground that the evidence was insufficient to prove theft of the Buick automobile by appellant. Appellant's counsel argued that, even assuming appellant knew the vehicle was stolen, his mere presence as a passenger, without exercising any possession or control of the car, did not make him guilty of theft. The court denied the motion.

Appellant was the sole defense witness. He testified that when he first got into the Buick he did not know it was stolen; he stated that a couple of the boys asked Burgess if the car was stolen and Burgess told them that it was his mother's car (R. 107). He stated that, although there was some discussion among the boys as to whether the car was stolen, he believed the car belonged to Burgess's mother because she had a gray Buick similar to it (R. 107-109). When questioned about the statements he gave to Investigators Stevens and Norman, appellant testified that he had lied to them because they led him to believe that he would get off easier if he gave them information (R. 109-111). He stated that most of the information he gave to the investigators was true, but that he was not actually involved in trying to sell any stolen cars (R. 111-112).

The court denied appellant's renewed motion for judgment of acquittal and found him guilty of grand theft as charged. At the disposition hearing, the court adjudged appellant delinquent and placed him on community control with special conditions, including restitution in an amount to be determined by negotiation or restitution hearing.

Appellant first attacks his adjudication of delinquency for grand theft auto on the ground that the state did not prove he violated section 812.014(1), Florida Statutes (1985), and thus the court erred in denying his motion for judgment of acquittal. Section 812.014(1) states:

(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

(a) Deprive the other person of a right to the property or a benefit therefrom;

(b) Appropriate the property to his own use or to the use of any person not entitled thereto.

Section 812.012(2) defines "obtains or uses" as used in 812.014 to mean any manner of

(a) Taking or exercising control over property.

(b) Making any unauthorized use, disposition, or transfer of property.

(c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise.

(d) 1. Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses; fraud, or deception; or

2. Other conduct similar in nature.

The 1977 legislature enacted section 812.014, commonly referred to as the "omnibus theft statute," as part of its overall revision of the criminal statutes relating to theft and stolen property. See, e.g., State v. Lewis, 364 So.2d 1223 (Fla.1978); Colvin v. State, 445 So.2d 657 (Fla. 1st DCA 1984). Since its enactment, the supreme court has upheld the constitutionality of section 812.014 against challenges on several different grounds.

The supreme court has rejected the argument that section 812.014 is so vague and broad that it improperly delegates excessive discretion to law enforcement officials and allows selective prosecution. Dunnigan v. State, 364 So.2d 1217 (Fla.1978). The court has also rejected the argument that section 812.014 violates the constitutional prohibition against cruel and unusual punishment, State v. Belgrave, 364 So.2d 1225 (Fla.1978), and has held that the title of the bill enacting section 812.014 meets constitutional requirements. Williams v. State, 370 So.2d 1143 (Fla.1979).

In State v. Allen, 362 So.2d 10 (Fla.1978), the trial court had found the statute invalid on two grounds: one, that omission of the words "with unlawful intent" left it devoid of any specific intent element; and two, that the term "endeavors" as used in the statute was impermissibly vague. The supreme court reversed, holding that the statute required specific criminal intent notwithstanding the omission of the word "unlawful." It rejected the trial court's construction of the statute as "unduly technical" because "it is obvious that the term 'endeavors' means an overt act manifesting criminal intent, rather than merely the formulation of a mental intent." 362 So.2d at 11, 12.

In State v. Dunmann, 427 So.2d 166 (Fla.1983), the court held that the specific intent necessary for the commission of a theft under this statute "is the intent to steal, not the intent to permanently deprive an owner of his property." Id. at 167. And in State v. Sykes, 434 So.2d 325 (Fla.1983), the court held that the inclusion in section 812.014(1) of the words "or endeavors to obtain or use" revealed "a legislative intent to define theft as including the attempt to commit theft." Id. at 327. Consequently, the court held, it was error to instruct the jury on attempt to commit theft as a lesser included offense of the theft charge.

In State v. Lewis, 364 So.2d 1223, the trial court had...