Periu v. State, 85-1480

• Decision Date: 01 July 1986
• Docket Number: No. 85-1480,85-1480
• Citation: 490 So.2d 1327,11 Fla. L. Weekly 1452
• Parties: 11 Fla. L. Weekly 1452 Oscar PERIU, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1327

490 So.2d 1327

11 Fla. L. Weekly 1452

Oscar PERIU, Appellant, v. The STATE of Florida, Appellee.

No. 85-1480.

District Court of Appeal of Florida,

Third District.

July 1, 1986.

Bennett H. Brummer, Public Defender, and Susan S. Lerner, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Michele L. Crawford, Asst. Atty. Gen., for appellee.

Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.

PER CURIAM.

This is an appeal from a judgment of conviction and sentence for second-degree grand theft of a motor vehicle. We reverse the judgment of conviction and sentence under review and remand the cause for a new trial based on the following briefly stated legal analysis.

First, the trial court committed reversible error in denying the defendant's motion for a mistrial after a police officer testified before the jury that "I had been to this [the defendant's] body shop before, and recovered stolen vehicles out of the shop." The testimony was obviously inadmissible as plainly (a) its sole relevance was to show the defendant's bad character and propensity to commit the crime charged, (b) it was totally unresponsive to the defendant's question of the officer on cross-examination, and (c) it was enormously prejudicial to the defendant in this admittedly close case on the issue of guilt or innocence. See Diaz v. State, 467 So.2d 1061 (Fla. 3d DCA 1985); Malcolm v. State, 415 So.2d 891 (Fla. 3d DCA 1982); see generally Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); § 90.404(2)(a), Fla.Stat. (1983).

Second, the trial court committed reversible error in denying the defendant's motion for a mistrial after the prosecuting attorney argued in his summation to the jury: "The [d]efendant said, 'I have a title and have a receipt.' Big question: You have to ask yourself in the jury room, where is the title? Where is the receipt?" The defendant had previously testified that he had purchased the allegedly stolen car from a third party and that he had received a purported title for it; this title was, in fact, already in the court file, although it was not introduced into evidence at the trial. The prosecutor was fully aware that the purported title was in the court file and, therefore, his comment "where is the title?" was highly improper in that it implied that the said title did not exist--when, as he well knew, it did. In the context of this case, where the question of guilt or innocence was very close and the existence of the title to the stolen car a critical point in the case, this highly improper argument was extremely prejudicial and called for a mistrial below. See Lipman v. State, 428 So.2d 733, 736 (Fla. 1st DCA 1983); Wright v. State, 363 So.2d 617, 619-20 (Fla. 1st DCA 1978), cert. denied, 372 So.2d 471 (Fla.1979); Richardson v. State, 335 So.2d 835, 836 (Fla. 4th DCA 1976).

Third, we reject the defendant's point on appeal that he was entitled to a judgment of acquittal below. Although the issue was a close one, we conclude that the state presented sufficient evidence from which a jury could reasonably have concluded that the defendant was discovered by police in possession of the stolen motor vehicle alleged in the information, that the smashed-up condition of the front windshield and the absence of any vehicle identification numbers on the car should have placed a reasonable person on notice of the probable stolen nature of the vehicle, and that the defendant's explanation for having the said vehicle could reasonably have been rejected by the jury. This being so, the state presented a prima facie case of second-degree grand theft sufficient to survive a defense motion for a judgment of acquittal. See Andreasen v. State, 439 So.2d 226, 228 (Fla. 3d DCA 1983), pet. for review denied, 449 So.2d 264 (Fla.1984); Snell v. State, 302 So.2d 487 (Fla. 2d DCA 1974),...