Grover v. State, 89-0690

• Citation: 581 So.2d 1379
• Decision Date: 19 June 1991
• Docket Number: No. 89-0690,89-0690
• Parties: John P. GROVER, Appellant, v. STATE of Florida, Appellee. 581 So.2d 1379, 16 Fla. L. Week. D1632
• Court: Florida District Court of Appeals

Page 1379

581 So.2d 1379

John P. GROVER, Appellant, v. STATE of Florida, Appellee.

No. 89-0690.

581 So.2d 1379, 16 Fla. L. Week. D1632

District Court of Appeal of Florida,

Fourth District.

June 19, 1991.

Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Deborah Guller, Asst. Atty. Gen., West Palm Beach, for appellee.

McNULTY, JOSEPH P., Senior Judge.

Appellant was convicted of seven counts of grand larceny and one count of consumer fraud.

First, with respect to the grand larceny counts, the question is whether the evidence, all circumstantial, is legally sufficient to support a finding of the requisite intent in larceny, i.e., the intent to deprive at the time of taking. The consumer fraud count will be discussed later.

It is black-letter of course that intent, being a state of mind, is rarely if ever susceptible of direct proof. Almost inevitably, as here, it must be shown solely by circumstantial evidence. State v. Waters, 436 So.2d 66 (Fla.1983).

The pertinent law on circumstantial evidence was most recently expressed by our supreme court in State v. Law, 559 So.2d 187, 188 (Fla.1989):

A special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence. Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.

(Citation omitted.)

Here, there is no dispute as to the relevant facts testified to. Appellant and one Taylor ¹ were in the business of selling business opportunities in the course of which they would lease and sell Pepsi-Cola and Coca-Cola vending machines, together with service contracts for maintenance. For an additional fee they would find locations for these machines.

Sales and leasing were conducted through PMS International, Inc. (PMS), and the contracts for service or locations were handled through a second corporation, Prestige of Florida Corporation (Prestige). Appellant's exact status with these corporations was not established ². A third corporation was formed, involving Taylor and one Gahan, through which Gahan, a mechanic, reconditioned old vending machines for both PMS and Prestige.

In the years 1984 and 1985 numerous persons responded to advertisements in The Palm Beach Post and invested in the opportunities. Eventually the business ran into difficulties when it began having troubles receiving and reconditioning machines.

The Palm Beach Sheriff's office became involved after receiving several complaints and ultimately, after interviewing numerous investors and potential investors, appellant and Taylor were arrested. The sheriff's department held a press conference announcing that the business was fraudulent, which effectively closed it. Taylor then fled the country.

Fifty-one grand larceny counts and five consumer fraud counts were filed against appellant, most of which were dismissed by the court or on which appellant was found not guilty. He was found guilty however, as noted, on the seven larceny counts here and on one of the five fraud counts.

At trial thirty-one witnesses testified about their purchases. Most complained that delivery of the machines was slow and usually occurred only after complaining to appellant. Of the thirty-one witnesses who testified at trial, one received an extra machine, four received all their machines, several did not receive all their machines, but were offered more locations than the contracted number of machines, approximately sixteen received only a portion of the machines purchased and seven received no machines. These last seven were those for which appellant was convicted; but in six of these the machines were not to be delivered under the contracts until after appellant was arrested.

It further appears that Gahan reconditioned approximately eight hundred machines in four and a half to five months for Prestige. He continued to get a substantial number of machines to repair until the last week of November or first week of December, 1985, when he ran out of machines to work on even though appellant was attempting to locate and secure more machines.

Gahan testified that he told appellant, whom Gahan thought to be sales manager, that the sales end of the business had to slow down because the reconditioning branch could not keep pace with the sales. He further testified that Taylor agreed with him, but that appellant convinced Taylor to allow continued sales and to push forward. These circumstances, the state argues, clearly indicate appellant had the intent to commit theft because "if appellant knew that the refurbishing branch of the operation ... could not keep pace with sales, then any sale after this incubation of knowledge would be tantamount to grand theft."

Appellant submits, on the other hand, that the foregoing evidence is not inconsistent with, nor does it contradict, his contention that he in good faith attempted to carry on a legitimate business with no intent to defraud, steal or otherwise bilk anyone; that he was at all times up until the end lawfully trying to salvage the business, which had been in existence almost two years with only normal ups and downs, but was prevented from doing so by business misfortunes, including the abrupt termination of the business after his arrest, all of which were beyond his control.

Clearly, appellant's hypothesis is not per se unreasonable and the foregoing circumstances do not exclude it. Likewise, it may be conceded that the state's hypothesis is also not unreasonable and arguendo may even give rise to a strong inference of guilt. But again, where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. State v. Law, 559 So.2d 187, 188 (Fla.1989); McArthur v. State, 351 So.2d 972 (Fla.1977). Gahan's testimony, standing alone, does not meet this test; and no other circumstances in evidence bolster any inference of a felonious intent which may be drawn from his testimony.

The ultimate question devolves here then as to whether a jury may be permitted to consider a single set of circumstances, which are at once susceptible of opposing reasonable hypotheses on the issue of guilt or innocence in a criminal case, and return a verdict of guilty based on their view of the more reasonable of the two. Clearly not, since it is the tendency to establish one fact to the exclusion of contrary facts which gives circumstantial evidence the force of proof in the first place; and when circumstances are reasonably susceptible of two conflicting inferences they are probative of neither. There simply would be no "proof."

The state would rely on the following statement of the supreme court in State v. Law, at 188:

The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse....

But that statement by the court must be considered in the light of the facts in that case.

There, the defendant was charged with first degree murder in the child abuse death of his girlfriend's three-year-old son. The evidence was essentially circumstantial as to who, if anyone,...