J.L. v. State, 89-3260

• Decision Date: 21 September 1990
• Docket Number: No. 89-3260,89-3260
• Court: Florida District Court of Appeals
• Parties: 15 Fla. L. Weekly D2379 J.L., a child, Appellant, v. STATE of Florida, Appellee.

Page 1383

566 So.2d 1383

15 Fla. L. Weekly D2379

J.L., a child, Appellant, v. STATE of Florida, Appellee.

No. 89-3260.

District Court of Appeal of Florida First District.

Sept. 21, 1990.

Barbara Linthicum, Public Defender, and Michael Minerva, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Amelia L. Beisner, Asst. Atty. Gen., for appellee.

PER CURIAM.

J.L. appeals a disposition order withholding adjudication of delinquency and placing her on community control due to her commission of the offenses of burglary of a conveyance, grand theft, and petit theft. She argues that the trial court erred in failing to acquit her of the charged offenses on the ground that a state witness gave contradictory testimony which corroborated her theory of innocence. We disagree and affirm.

On July 28, 1989, appellant, J.L., a juvenile, and Michael Dumas attended a party at a friend's home. Dumas testified that he fell asleep during the party, and that his wallet and the keys to his truck were in his pockets when he went to sleep. When he awoke, he found that his wallet, which had had $200 in it, and the keys to the truck were gone. It is undisputed that J.L. drove Dumas' truck after Dumas had fallen asleep, that it broke down while she was driving it, and that she returned it during the early morning hours. J.L. testified that Dumas gave her permission to take the truck. However, Dumas denied that he had given anyone consent to drive his truck, and asserted that his truck was damaged, and that he could not start it following its return.

J.L. was charged as a juvenile with unlawfully entering or remaining in the truck with the intent to commit theft (Count I); theft of the truck (Count II); petit theft for obtaining, using, or endeavoring to obtain or use Dumas' vehicle keys and/or money (Count III); and malicious mischief by unlawfully, willfully, and maliciously injuring or damaging the truck (Count IV). She was found guilty on the first three counts, and acquitted on the fourth.

The primary dispute in this case is whether J.L. had the requisite unlawful intent to steal Michael Dumas's truck and keys. See State v. Dunmann, 427 So.2d 166 (Fla.1983). If J.L. took the property under the honest but mistaken belief that Dumas had given her permission, she cannot be found guilty of theft. Kilbee v. State, 53 So.2d 533 (Fla.1951); Board of Regents v. Videon, 313 So.2d 433 (Fla. 1st DCA 1975). And, of course, if J.L. did not have the intent to steal, then the burglary finding would also be vulnerable.

Lori Privett, a witness for the state, testified on direct examination that J.L. took the truck and gave Privett a ride to a friend's house, and that the truck broke down on the way. When asked on cross-examination if she had listened to a discussion between Michael Dumas and J.L., Privett answered that she had heard J.L. ask Dumas if she could drive his truck, and that he had replied that she could if she could find his keys. The only other witness who claimed to overhear the alleged exchange between Dumas and J.L. was Wendy Harden, a defense witness who, like J.L., testified that Dumas said J.L. could use his truck.

J.L. relies upon a line of cases exemplified by D.J.G. v. State, 524 So.2d 1024 (Fla. 1st DCA 1987), review denied, 525 So.2d 880 (Fla.1988), wherein this court said at page 1027:

In situations where a state witness at trial gives testimony of his version of the event that coincides with the defendant's version, and the state does not assert at any point that the witness is adverse, Florida courts have held that the state is bound by the testimony adduced, entitling defendant to a directed verdict of acquittal.

See also Weinstein v. State, 269 So.2d 70 (Fla. 1st DCA 1972), cert. denied, 273 So.2d 764 (Fla.1973); Hodge v. State, 315 So.2d 507 (Fla. 1st DCA 1975); and Majors v. State, 247 So.2d 446 (Fla. 1st DCA 1971), cert. denied, 250 So.2d 898 (Fla.1971).

J.L. asserts that the above cases mandate that a judgment of acquittal be granted where a state's witness testifies in a manner consistent with the defendant's theory of innocence. Closer examination of those opinions, however, indicates that the cases do not stand for that proposition.

In D.J.G., Weinstein, and Hodge, although in each case the testimony of the state's witness or witnesses was consistent with the defendant's theory of innocence, no evidence was presented by the state which directly contradicted the exculpatory testimony. In the instant case, however, the state presented direct evidence from the victim that the defendant did not have permission to operate the victim's vehicle; therefore, D.J.G., Weinstein, and Hodge are inapplicable.

In Majors, where two people had been charged with aggravated assault, the state presented four witnesses who testified that one defendant had actually fired the gun, then presented four other witnesses who testified that the other defendant had fired the gun. The state made no attempt to establish who actually pulled the trigger; the jury had to decide which person was guilty. In Majors, this court agreed with the defendant that the conflicting testimony "created a reasonable doubt as a matter of law."

It would be a mistake to extend the teaching of Majors much...