Kipping v. State, 95-04795

Decision Date21 November 1997
Docket NumberNo. 95-04795,95-04795
Citation702 So.2d 578
Parties22 Fla. L. Weekly D2663 James A. KIPPING, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bruce Robert Bryan, Syracuse, NY, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

BLUE, Acting Chief Judge.

James A. Kipping (hereinafter "Kipping" or "James") appeals his conviction and the departure sentence imposed. He brings four issues to this court for our consideration. In addition to his contention that the trial court improperly departed upward from the sentencing guidelines, he questions the sufficiency of the evidence to sustain his conviction, contends the trial court erred in its instructions to the jury, and asserts that he was denied a fair trial. Although we will touch briefly on all of these points, we find merit only in Kipping's argument that the trial court erred in imposing a departure sentence. Therefore, we affirm Kipping's conviction, but reverse and remand with directions that the trial court resentence him within the guidelines.

Kipping, along with his older brother, Robert Kipping (hereinafter "Robert"), and David D. Andrews (hereinafter "Andrews"), was charged with a scheme to defraud pursuant to section 817.034(4)(a), Florida Statutes (1989), and twenty-two counts of grand theft. All of the charges arose from the sale of dance lessons at two dance studios in Pasco County.

Robert was the primary owner of both dance studios involved in this prosecution. He first owned a studio in New Port Richey and later opened what was known as the Bayonet Point Studio. Robert made his younger brother, James, a co-owner of the Bayonet Point Studio. Andrews, a veteran of the dance studio business, was the sales manager at both studios. James had worked for a period of time as a dance instructor at his brother's studio in New Port Richey prior to the opening of Bayonet Point. Robert was clearly the person in charge of both operations or "the boss"; however, much of the day-to-day management was left to Andrews. It appears from the record that James, although a co-owner of one of the studios and active in the business, did not have the experience or the authority to override Robert's decisions and, as indicated earlier, much of the management fell upon Andrews.

Each of the three--Robert Kipping, James Kipping and David Andrews--were charged in one information with scheme to defraud and multiple counts of grand theft. The charges were based upon the tactics used in selling contracts for dance instruction. In proving criminal intent, the State relied upon the amount of money charged for dance lessons and other activities sponsored by the dance studios. Many of the students entered into multiple contracts and were charged amounts of money best described as outrageous. Students were encouraged and pressured to purchase additional dance lessons long before they had completed paid lessons. They were encouraged to purchase the lessons based upon representations of their ability and predicted future mastery of ballroom dancing. In addition to lessons, the students were encouraged to purchase peripheral items such as trips, membership in clubs, and honorary awards. The selling of new lessons had little to do with the students' ability to dance or to improve significantly, but rather, was based on the students' financial ability and willingness to purchase more contracts.

Many witnesses testified about the pressure exerted to obtain their names on contracts. They also reported the loss of status they suffered at the studios when they failed to execute new contracts. Most of the witnesses expressed great remorse over the amount of money they had expended in seeking dance lessons. However, all agreed that although pressured, they had voluntarily entered into the contracts. They were also aware that the contracts provided the right to cancel within three business days of signing.

There were no allegations nor any proof that the contracts themselves were, per se, fraudulent. No proof was offered that the contracts contained hidden terms, failed to express the agreement of the parties, or were in any way illegal. The fraud allegations were based on the dance studios' tactics employed in inducing the signing of the contracts. Students were encouraged to sign-up for more and more dance lessons on the basis that they would become expert ballroom dancers when, in fact, most were incapable of achieving the promised results. It was implied, but not directly proven, that some of the contracts were sold at a time when the dance studios were suffering financially--thus indicating that the defendants were aware that the services sold would never be provided. There were, in fact, several contracts in which lessons could not be provided by these studios because financial problems resulted in the studios closing. 1

The above is only a short synopsis of the evidence presented at trial. During the eleven trial days, the State called more than thirty-three witnesses. Kipping and Andrews were the only defendants on trial. Robert had pleaded guilty to all charges and had been sentenced to five years in prison, followed by probation. The prison portion of his sentence was completed before this trial.

The trial court granted judgments of acquittal on five of the grand theft counts. All remaining charges were submitted to the jury. The jury returned verdicts of guilty on all of the remaining counts of theft and the charge of scheme to defraud as to both Andrews and Kipping. Based upon Cherry v. State, 592 So.2d 292 (Fla. 2d DCA 1991), Kipping could not be sentenced on both the scheme to defraud and the theft charges which formed the basis for the scheme to defraud. The sentencing guidelines recommended range was two and one-half to three and one-half years of incarceration. The permitted range was community control to four and one-half years' imprisonment. The court imposed a fifteen-year imprisonment sentence on the scheme to defraud conviction, an upward departure from the guidelines.

We find no merit in Kipping's argument that the trial court erred in instructing the jury nor in his claim that he was denied a fair trial. Kipping points to numerous examples of discretionary rulings which favored the prosecution in this matter, and a reading of the complete record may support the argument that the trial judge tended to favor the State in such rulings. However, we conclude Kipping was not denied a fair trial. We also note this was a highly charged and emotional case and the trial court was faced with an extremely zealous and aggressive prosecution team.

It is a close question as to whether there was sufficient evidence to support the conviction for scheme to defraud. Based on the number of witnesses and length of the trial, there was certainly an abundance, if not an excess, of evidence. However, a large quantity of evidence is not necessarily sufficient evidence to support a criminal conviction. Here, the concern is with the proof of Kipping's felonious intent. The question is: When do sharp business practices cross the line that converts them from legal to illegal activities? This is not the first time this court has reviewed such a situation. See State v. Sapp, 492 So.2d 703 (Fla. 2d DCA 1986) (sheriff not guilty of theft for selling airplane to a third party who leased it to the sheriff's department, absent showing sheriff's department was deprived of use or value of money); Crawford v. State, 453 So.2d 1139 (Fla. 2d DCA 1984) (dispute between homeowner and roofer--homeowner unilaterally terminated contract, roofer then retained down payment--evidence insufficient to show roofer had criminal intent of theft). See also Stramaglia v. State, 603 So.2d 536 (Fla. 4th DCA 1992) (evidence that officer of road construction company failed to pay certain subcontractors and broke promises to pay full amount owed insufficient to support conviction of officer for grand theft); Szilagyi v. State, 564 So.2d 644 (Fla. 4th DCA 1990) (conduct of a legitimate business enterprise which fails insufficient evidence of...

To continue reading

Request your trial
8 cases
  • Greene v. State, 96-04490
    • United States
    • Florida District Court of Appeals
    • June 26, 1998
    ...(Fla.1990); Taccariello v. State, 664 So.2d 1118 (Fla. 4th DCA 1995); Byrd v. State, 516 So.2d 107 (Fla. 4th DCA 1987); Kipping v. State, 702 So.2d 578 (Fla. 2d DCA 1997); Andrews v. State, 708 So.2d 654, 23 Fla. L. Weekly D897 (Fla. 2d DCA Apr.3, 1998). At least on the surface, the distric......
  • Pizzo v. State
    • United States
    • Florida Supreme Court
    • July 22, 2005
    ...scheme to defraud under section 817.034(4)(a). See State v. Summerlot, 711 So.2d 589, 592 (Fla. 3d DCA 1998); see also Kipping v. State, 702 So.2d 578 (Fla. 2d DCA 1997) (affirming organized fraud conviction of defendant who did not actually communicate as part of the scheme). The Summerlot......
  • Weaver v. State, 4D06-4364.
    • United States
    • Florida District Court of Appeals
    • April 2, 2008
    ...that Weaver's "business practices cross[ed] the line that convert[ed] them from legal to illegal activities." Kipping v. State, 702 So.2d 578, 581 (Fla. 2d DCA 1997). Section 817.034(4)(a)3 provides that "[a]ny person who engages in a scheme to defraud and obtains property thereby is guilty......
  • Andrews v. State, 95-05090
    • United States
    • Florida District Court of Appeals
    • April 3, 1998
    ...co-defendant, we affirm the conviction, reverse the sentence and remand for resentencing within the guidelines. See Kipping v. State, 702 So.2d 578 (Fla. 2d DCA 1997). We resolve Andrews' only issue not presented in Kipping by holding the trial court did not abuse its discretion by denying ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT