Moore v. State
| Decision Date | 03 June 2020 |
| Docket Number | Case No. 2D18-1842 |
| Citation | 295 So.3d 1259 |
| Parties | Curtis Lee MOORE, DOC #301998, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
BY ORDER OF THE COURT:
On the court's own motion, the opinion dated May 27, 2020, is withdrawn, and the attached opinion is substituted in its place. The revised opinion clarifies a reference in the first paragraph on page 5.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
Curtis Moore appeals from his convictions and sentences for felony grand theft of a motor vehicle and misdemeanor possession of paraphernalia with intent to use. The alleged stolen property was Mr. Moore's friend's truck, and the alleged paraphernalia was a glass pipe used to smoke crack cocaine. We reverse the conviction and sentence on the grand theft charge because the trial court erroneously gave an instruction on the inference of knowledge arising from possession of recently stolen property. We affirm the conviction for possession of paraphernalia and write to explain why, as to the paraphernalia count, the evidence was sufficient to establish that Mr. Moore in fact intended to use the glass crack pipe to smoke crack. Mr. Moore was also convicted of felony driving with license suspended or revoked (third offense) but raises no appellate issue with that charge, which we affirm without comment.
The facts of this case center on allegations that Mr. Moore took a truck from an old school chum at gunpoint. On the night in question, the victim and Mr. Moore encountered each other at a local hangout. The victim arrived in his truck. He had been drinking alcohol before he arrived, and he continued to drink while there. Late in the evening, the two men decided to leave together—with Mr. Moore driving the victim's truck. The pair drove around more or less aimlessly for over an hour, eventually going to the neighborhood where the victim's fiancée lived. What happened next is what led to the charges against Mr. Moore and was disputed at the trial.
According to the victim, when the men arrived at the fiancée's house early in the morning, Mr. Moore pulled a gun from a bag he had been carrying, pointed it at the victim, and ordered him out of the truck. When the victim complied, Mr. Moore drove away. The victim then walked to his fiancée's home and called the police.
Based on the information provided by the victim, the police found Mr. Moore, who was still driving the truck, and conducted a traffic stop. Mr. Moore was driving on a suspended license and was ordered out of the truck for arrest. What was identified at trial as a glass crack pipe was found in his pocket. A handgun was found under the driver's seat. Mr. Moore was charged with robbery with a firearm, felony driving on a suspended license, and possession of paraphernalia with intent to use.
The case proceeded to a jury trial. Mr. Moore did not contest the State's evidence on the suspended license and paraphernalia charges. Instead, he focused on the robbery with a firearm charge, which carried the most severe potential sentence. Mr. Moore defended against that charge on the theory that the victim agreed to his driving the truck because the victim was drunk. Mr. Moore argued that he did not take the truck from the victim but merely dropped him off at his fiancée's house and that the gun found under the driver's seat was the victim's, not Mr. Moore's. The defense moved for a judgment of acquittal solely on the robbery charge, which the trial court denied.
Mr. Moore's strategy of focusing on the more severe robbery charge largely worked. As to the robbery with a firearm count, the jury returned a guilty verdict only of grand theft of a motor vehicle—the lowest lesser included offense upon which it was instructed and one carrying a far less severe potential sentence. Compare § 812.014(2)(c)(6), Fla. Stat. (2016) (), with § 812.13(2)(a) (). The jury also convicted Mr. Moore of driving on a suspended license and possession of paraphernalia. The trial court imposed concurrent forty-eight-month sentences on the grand theft and driving on a suspended license counts and a concurrent 364-day sentence on the paraphernalia count.
Mr. Moore's principal argument in this timely appeal deals with the jury instructions on the lesser included grand theft offense of which he was convicted. He asserts that the trial court committed fundamental error when it gave a standard instruction that proof of the unexplained possession of recently stolen property gives rise to an inference that the person in possession knew or should have known that the property had been stolen.1 See Fla. Std. Jury Instr. (Crim.) 14.1.
The standard instruction the trial court gave is based upon and worded identically to section 812.022(2), which provides in relevant part that "proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen." As the text of this statute makes clear, there are two evidentiary predicates to the inference of knowledge the statute creates: (1) that the property at issue was in fact recently stolen and (2) that the defendant was in fact in possession of the property. See A.L. v. State, 275 So. 3d 819, 822-23 (Fla. 2d DCA 2019) ; Bronson v. State, 926 So. 2d 480, 483 (Fla. 2d DCA 2006). Mr. Moore argues that the first predicate element was very much in dispute in this case and, for that reason, that giving the instruction was likely to mislead the jury into believing that the truck was stolen, effectively nullifying his defense that he took it with the victim's consent.
Mr. Moore's argument is well taken. In Consalvo v. State, 697 So. 2d 805, 815 (Fla. 1996), the supreme court explained that a standard instruction similar to the standard instruction the trial court gave here "applies only where the property is undisputedly stolen and the question is who stole it." (Emphasis added.) In reaching that conclusion, the court relied on the Fourth District's decision in Jones v. State, 495 So. 2d 856 (Fla. 4th DCA 1986), which is instructive here. In Jones, the defendant was charged with grand theft of a car, which he had taken from a used car dealer. Id. at 857. The defendant claimed that he had taken the car pursuant to a purchase agreement and had even left his old truck with the dealer as part of the purchase price. Id. The State, in contrast, contended that the dealer had only agreed to allow the defendant to test-drive the car and that no purchase agreement had been finalized. Id. The trial court gave the standard instruction on the inference of knowledge arising from possession of stolen property, and the jury convicted. Id.
The Fourth District held that it was improper to give the instruction because "[t]he only issue at trial was whether Jones intended to steal the car or took it innocently, in other words, whether the car was stolen." Id. In such a case, giving the instruction risks misleading the jury into accepting as a settled fact that which is disputed—namely whether the property (in Jones, the car) was really stolen.
The challenged jury instruction, however, states as a fact that the property was stolen and establishes the presumption that the person in possession was the thief. Such an instruction serves no purpose in a case such as this. "[W]here there is conflict in the evidence as to the intent with which property alleged to have been stolen was taken ... the question should be submitted to the jury without any intimation from the trial court as to the force of presumptions of fact arising from ... the testimony." Curington v. State, 80 Fla. 494, 86 So. 344, 345 (1920). Under the instruction, before the jury could make the presumption, it would have to find that the property was stolen. If the jury found that the car was stolen, however, it would find Jones guilty and the case would be resolved. In other words, there would then be no need for the presumption. The presumption applies in a different type of case, that is, where the property is undisputably stolen and the question is who stole it. The only possible effect of the instruction here was to allow the jury to presume Jones was guilty because he was in possession of the car.
Id. (alterations in original) (emphasis added); see also Horvath v. State, 217 So. 3d 1045, 1046-48 (Fla. 4th DCA 2017) ().
The idea that an instruction on the inference of knowledge is appropriate in cases where there is a question as to who stole the property, and not in cases where the question is whether the property was stolen at all, makes sense. After all, what section 812.022(2) does is to allow the State "to show by inference the accused's knowledge of the stolen nature of the property and the accused's intent, which are essential elements of the offense of theft."
Boone v. State, 711 So. 2d 594, 596 (Fla. 1st DCA 1998). But knowledge and intent are generally not issues when there is no dispute about who took the property and the question is whether they took it by stealing it or, instead, by some innocent means. In such a case, if the jury finds that the property is stolen, it will generally follow that the defendant knew it was stolen and intended to steal it. And...
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