Jackson v. State, 81-1605

• Decision Date: 23 April 1982
• Docket Number: No. 81-1605,81-1605
• Citation: 413 So.2d 112
• Parties: Stonewall JACKSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 112

413 So.2d 112

Stonewall JACKSON, Appellant, v. STATE of Florida, Appellee.

No. 81-1605.

District Court of Appeal of Florida Second District.

April 23, 1982.

Jerry Hill, Public Defender, Bartow, and Gregory E. Like, Asst. Public Defender, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.

CAMPBELL, Judge.

The trial of this cause and the resulting judgment and sentence are, to say the least, perplexing. The result causes us to address an issue that at first reflection seems to have been addressed many times, however, after careful consideration we determine this case to be one of first impression. The issue for our determination is whether a defendant may be found guilty of theft of property valued at $100 or more, grand theft of the second degree, section 812.014(2)(b), Florida Statutes (1979), absent any specific proof of value by the state. We answer the question in the affirmative when, by the very nature of the property stolen, reasonable persons could not doubt that its value exceeded $100. In doing so, we stress the fact that this should occur only in those rare instances when the minimum value is undisputable and the jury cannot ascertain a specific value from the evidence or lack of evidence before it.

Appellant was charged by information with the theft on December 30, 1980 of a sailboat valued in excess of $20,000 which was the property of the United States Customs Service. That charge constitutes grand theft in the first degree under section 812.014(2)(a), Florida Statutes (1979). The state's proof showed that the boat was a 1980, 37-foot Hunter sailboat that had been seized by the United States Coast Guard on December 15, 1980, while it was carrying 2,000 pounds of marijuana on board. It had been turned over to the United States Customs Service for storage and handling when it became the subject of the alleged theft some two weeks later. In order to prove the value of the sailboat, the state called as a witness Robert Gonzalez, the supervisor for the Customs Service, who was on duty the night the boat was stolen. After testifying as to his duties and how the sailboat had come into the possession of the Customs Service, the following colloquy occurred:

Q Do you have an opinion as to how much that vessel was worth?

A Yes, sir, we have appraisers at the custom's house and also for seized property vessels and vehicles go through the custom appraisers and they take the fair market value and that give (sic) us the official appraisal on it. This particular vessel was appraised at $55,000.

Appellant's attorney promptly objected on the basis of hearsay. His objection was sustained and the jury was instructed to disregard the testimony.

Over appellant's objection, the state made a request to call as a witness the person who had appraised the boat but whose name had not been furnished in the discovery process. After a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971), the state's request was denied.

The state then recalled Mr. Gonzalez and made the following proffer:

Q Who does your appraisals?

A Import Specialists located here in Tampa.

Q Who did the appraisal on the Moon Shadow?

A William Ingersoll.

Q Do you know how long he's been an appraiser?

A Well over ten years.

Q Is that how long you have known him?

A Yes, sir.

Q How often does he do appraisal work for you?

A Every day.

Q Each time that he gives you an appraisal does that become a part of your file?

A Yes, it does.

Q Do you ever do any of your own appraisal work?

A No, sir.

Q You have an appraisal outfit that does everything?

A Well, they're government employees working for the United States Government Service with a grade level and a job title and they're specialists in their field. For example, if we make a seizure on any type of vessel, cargo vessel or anything, we don't make the evaluation because we're not qualified and these appraisers are, and they make the evaluation and we use that figure.

Q Ingersoll is a customs' employee?

A Yes.

Q His report is regularly made a part of the file or whatever is on each piece of property that is seized?

A Yes, it is.

MR. DAVIS: Your Honor, I think, under the evidence code that an appraisal is a part of the regular business activities. I think clearly the situation we have here, we have an employee of the U. S. Customs, a professional appraiser, whom this gentlemen (sic) knows has been appraising for the United States Customs for at least ten years who daily makes custom reports that became a part of that custom file. I think this falls squarely within the hearsay exception.

That proffer was clearly an effort to introduce evidence of the appraised value of the sailboat as contained in the Custom's file under the exceptions to the hearsay rule contained in section 90.803(6)(a) and (8). The trial judge rejected the proffer ruling that:

Somebody should have realized you have to prove the value of the boat, and you can't do it by something that somebody has in their file that tells them it's worth $55,000. I don't know. I'm denying your motion for a continuance to bring in your other witness. There's no other motion before me at this time that I know of.

While we agree that the state should have been better prepared to prove value, we feel that the proffered testimony was proper under either section 90.803(6)(a) or (8). The record is such, however, that we are not prepared to say that the admission of the contents of the Custom's file would not also have violated the discovery process.

This case apparently is one in which the question of value was never really contested until the state attempted to prove it through the wrong witness, for as the trial judge observed, "I would say this: A 1980 37-foot Hunter certainly we know is worth more than $20,000, but as far as the proof goes you have a problem." The state offered no other evidence of value, therefore, the jury had for its consideration only the following facts: The boat at the time it was stolen was an operable, 37-foot 1980 Hunter sailboat less than a year old. Fifteen days prior to its theft it had been seized by the United States Coast Guard while carrying 2,000 pounds of marijuana and it was being stored by the Customs Service.

The trial judge charged the jury in accord with the provisions of section 812.012(9)(a)1 and (b) regarding value as follows:

"Value" means: The market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.

If the exact value of the property cannot be ascertained, you should attempt to determine a minimum value. If you cannot determine the minimum value, you must find the value is less than $100.

Section 812.012(9)(b) was added to the Florida Statutes in 1977. That section as paraphrased above by the trial judge reads literally as follows: "(b) If the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount, if no such minimum value can be ascertained, the value is an amount less than $100." The legislature obviously intended to provide an alternative method of determining value by adding that section to the statutes. However, we find no cases interpreting that section since its enactment to help us in determining a clear legislative intent. We cannot say with certainty that it was intended to allow a jury to rely on its "general knowledge" to determine a minimum value in every factual situation where the jury is presented no direct evidence of value. It does appear, however, that it may be utilized where, though no direct evidence...