Isenhour v. State
| Decision Date | 30 March 2007 |
| Docket Number | No. 5D06-888.,5D06-888. |
| Citation | 952 So.2d 1216 |
| Parties | James Kirk ISENHOUR, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Gregory E. Tucci, Ocala, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
A jury convicted James Isenhour of grand theft, and the trial court sentenced him to five years' imprisonment followed by 30 years' probation. Isenhour appeals, contending that the State failed to prove the requisite criminal intent to support the grand theft conviction. He also contends that the State failed to prove a person or entity had an interest in the funds superior to his own. We agree with both contentions and reverse.
In 1978, Isenhour co-founded Ocala's Cambridge Academy, which is an accredited long-distance educational institution providing services to students who are no longer successful in public school. In the pertinent time period, Isenhour was chairman of the board of the school. Isenhour was also the chief financial officer of Silver Archer Foundation, Ltd., which Isenhour formed and had qualified as a nonprofit Scholarship Funding Organization [SFO] under the laws of Florida in January 2002.1 Institutions qualifying as SFO's receive corporate donations and must, by statute, funnel 100% of the corporate donations to qualifying children in the form of scholarships—none of the donated money can be used for administrative expenses. In return for their participation in the scholarship program, the corporations receive a dollar-for-dollar credit on their Florida corporate income tax liability as long as all qualifying factors of section 220.187, Florida Statutes (2003) (entitled, "Credits for Contributions to Nonprofit Scholarship-Funding Organizations") are met and the SFO certifies that the money was paid out as scholarships to qualifying students.
In early 2003, Isenhour learned that Pulte Homes, Inc., a residential construction corporation, was intending to participate in the program, so he telephoned the company and solicited funds from it. He urged early donations, and Pulte responded with donations totaling $268,125. Isenhour then attempted to get both the principal and the student services director of Cambridge Academy to identify qualifying students so that the scholarship money could be disbursed. Both testified that they had refused to do so because they believed that finding scholarship students was the job of Silver Archer, not Cambridge Academy. Isenhour tried a number of times and in a number of ways to get Cambridge Academy to cooperate, but with no success. He asked the principal to have an employee make phone calls to solicit student applications for the SFO scholarship funds, but she refused. In addition, Isenhour gave the principal checks and applications and asked her to secure qualified students, but again she refused. Isenhour, by all accounts, was angered by the lack of cooperation and greatly frustrated.
During this period of time, a harbinger of the difficulty to befall Isenhour appeared when Cambridge Academy started to experience financial difficulty. Isenhour and his ex-wife both testified to selling a private airplane and boat and using the proceeds to support the school. Isenhour also used money from other corporations he held to pay expenses at Cambridge Academy and borrowed money from at least one Cambridge Academy employee. Bankruptcy proceedings were initiated and, apparently due to IRS problems, the IRS periodically cleaned out Cambridge Academy bank accounts. Interestingly, in the same period that Isenhour was unsuccessfully attempting to award the Silver Archer scholarships, Cambridge Academy did give tuition credits to needy students in an amount that was almost the same as that donated by Pulte.
In any event, Isenhour testified that he deposited the Pulte funds into the Silver Archer account at Wachovia Bank. Isenhour admitted to using the funds to pay the bankruptcy attorney for Cambridge Academy, to repay a loan from a Cambridge Academy employee, and to pay salaries and payroll, including over $7,500 to himself as salary after not receiving any income from Cambridge Academy for some period.
Isenhour refused to certify that he had used the funds as required by statute, as he had not. He notified the Department of Education that he would not be certifying the funds. This triggered the Department of Education to advise Isenhour that the failure to provide the certification would result in Silver Archer no longer being qualified as an SFO. The Department of Education advised Isenhour that it would be informing the Department of Revenue of this fact.
Isenhour was aware that the funds were not supposed to have been used for administrative expenses and telephoned both the Department of Revenue and the Department of Education to see what should be done. Neither had helpful advice. In fact, one e-mail from the Department of Revenue to its tax law specialist relates that Isenhour had called and asked what to do with contributions that had not been given to students and the writer had advised Isenhour that "that would be up to the DOE." Another Department of Revenue e-mail shows that Isenhour had called another time and wanted an opinion as to what to do with unspent money and the Department had referred him to the statutes and suggested that Isenhour's problem was with the Department of Education as A third e-mail relates another call from Isenhour and memorializes that the Department of Revenue author had advised Isenhour
It seems that Silver Archer's situation (the inability to find scholarship-eligible students to give the money to) was a first, as the program was apparently a new one, and there was no statutory provision giving guidance. Isenhour telephoned Pulte seeking to return the money to Pulte; Pulte refused to engage in any discussion with him because it was aware that an investigation into the funds had been launched. An investigator with the Florida Department of Revenue audited Silver Archer's books and concluded that Silver Archer funds were used for the operational purposes of Cambridge Academy and not a single dollar had gone for scholarships. A criminal Information was filed against Isenhour charging that between March 1 and August 15, 2003, Isenhour
did unlawfully and knowingly obtain, use or endeavor to obtain or use the property of DEPT OF REVENUE, to-wit: U.S. Currency, of the value of one hundred thousand dollars ($100,000.00) or more, with the intent to either temporarily or permanently deprive DEPT OF REVENUE of a right to the property or a benefit thereof, or did appropriate the said property to his own use or to the use of any person not entitled thereto, in violation of Florida Statutes 812.014(1) and 812.014(2)(a);....
At trial, even the prosecutor admitted that there was no provision in the statutory scheme for giving the money back to either the corporate donor or to the Department of Revenue if scholarship students were not located and the money was not given out. The prosecutor stated, too, that the reason Isenhour's inquiries to the State as to how to return the money were not answered is that the State "hadn't anticipated this far down the line."
Isenhour's attorney moved several times for a directed verdict on the basis that the Information charged that the criminal act occurred between March and August 2003 and, during that period, the money was rightfully in Silver Archer's possession and the Department of Revenue, the alleged victim, had no right to the money. Even assuming the Department of Revenue could have been the victim, it could not have become the victim until it was deprived of the funds, which would have occurred when Pulte's tax was due, which was after the time frame alleged. There was no evidence that the Department of Revenue was owed, or had any interest in, the funds during the period alleged, nor was there evidence that the State owned the money when Pulte made the donation to Silver Archer, the attorney pointed out.
The prosecutor responded that "of course" the money was the Department of Revenue's money. He reasoned that the money was sales tax money (it was not) and the State's interest accrued immediately upon being collected. The court then questioned how the Department of Revenue could be the victim where it had given the tax credit to Pulte anyway.2 The prosecutor's answer was that the victims were the needy students who did not receive the scholarships, but the State could not plead unnamed victims. The court reserved ruling.
At the conclusion of the evidence, Isenhour's attorney renewed his motion. Then, after the jury returned its verdict, Isenhour's attorney moved for a judgment of acquittal notwithstanding the verdict. These motions were denied, judgment was entered against Isenhour, and he was sentenced to five years in prison. Isenhour appeals, contending that the State failed to prove the requisite criminal intent to support the grand theft conviction and that the State failed to prove a person or entity had an interest in the funds superior to his own.
We must review the record de novo to determine whether there is...
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