Sanchez v. State, 5D04-2234.

• Decision Date: 09 September 2005
• Docket Number: No. 5D04-2234.,5D04-2234.
• Citation: 909 So.2d 981
• Parties: Jose Perez SANCHEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

909 So.2d 981

Jose Perez SANCHEZ, Appellant, v. STATE of Florida, Appellee.

No. 5D04-2234.

District Court of Appeal of Florida, Fifth District.

September 9, 2005.

James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

Jose Perez Sanchez entered a convenience store and attempted to purchase merchandise with a credit card that did not belong to him. Upon examination of the requested identification that revealed Sanchez was not the owner of the credit card, the clerk refused to return the card and attempted to call the police. Sanchez leapt over the counter to forcibly retrieve the credit card, and a struggle ensued during which Sanchez bit the clerk on the hand with sufficient force to cause bleeding. During the melee, the clerk dropped the telephone and it broke. When the clerk retreated outside to summon help, Sanchez took several items from the counter and left.

The police subsequently found Sanchez hiding in a shed located nearby. He was apprehended and charged with robbery and criminal mischief. The basis of the latter charge was the broken telephone. During the trial, counsel for Sanchez requested a judgment of acquittal, contending that the State failed to establish a prima facie case of robbery and criminal mischief. The trial court denied that request and this appeal followed.

We apply the de novo standard of review when reviewing a trial court's denial of a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792 (Fla. 2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); Sutton v. State, 834 So.2d 332, 334 (Fla. 5th DCA 2003). Generally, we will affirm the trial court's denial of that motion if the record reveals substantial competent evidence to support the conviction. Fitzpatrick v. State, 900 So.2d 495 (Fla.2005). "If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Id. at 507 (citation omitted); see also Sutton.

Sanchez argues that he had permission of the owner to use the credit card and the clerk's apparent act of bravado in refusing to return it was nothing more than wrongful deprivation of property that rightfully belonged to his friend. More importantly, Sanchez asserts, he paid for the items he took from the store and the State did not produce sufficient evidence to prove otherwise. But the clerk testified to the contrary, creating a conflict in the testimony that was resolved by the jury in favor of the State. We believe that a rational jury could find beyond a reasonable doubt, based on the clerk's testimony, that Sanchez did take the items without paying for them. Because substantial competent evidence supports the jury's finding of unlawful taking, we reject Sanchez's argument.

Sanchez advances an alternative claim: if he actually took the items without paying for them, as the clerk contends, his conduct did not rise to the level of robbery because the taking was accomplished by a mere "sudden snatching," which amounts to nothing more than petit theft. The distinction between the two crimes, according to Sanchez, is one of force. We agree that the element of force appropriately distinguishes the two crimes: force utilized in the course of the taking is a necessary element of robbery, but it is not a necessary element of petit theft. See § 812.13(1), Fla. Stat. (2004) (requiring the State to show that "in the course of the taking there is the use of force, violence, assault, or putting in fear" to prove the crime of robbery); Robinson v. State, 692 So.2d 883, 887 (Fla.1997) ("Florida courts have consistently recognized that in snatching situations, the element of force as defined herein distinguishes the offenses of theft and robbery.") (citations omitted); Jones v. State, 652 So.2d 346 (Fla.1995), cert. denied, 516 U.S. 875, 116 S.Ct. 202, 133 L.Ed.2d 136 (1995). However, substantial competent evidence was presented to the jury that draws a very clear line between the two offenses in the instant case sufficient for us to conclude that the crime Sanchez actually committed was robbery. The record reveals sufficient evidence of force and violence preceding the taking of the items by Sanchez such that the taking was enabled: Sanchez bit the clerk as they scuffled behind the counter, causing the clerk to flee for help and leaving Sanchez unobstructed as he helped himself to the items on the counter just before he departed. The fact that the violence occurred prior to the actual taking does not help Sanchez because an act is considered "`in the course of the taking' if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events." Jones, 652 So.2d at 349 (quoting § 812.13(3)(b), Fla. Stat. (1989)). We conclude, therefore, that the trial court correctly denied Sanchez's request for a judgment of acquittal regarding the robbery charge.

As to the criminal mischief conviction, Sanchez argues that his request for judgment of acquittal should have been granted because the State failed to present sufficient evidence to prove that he intended to damage the telephone. The State contends that Sanchez failed to properly preserve this argument for our review because he did not raise it in the trial court when he made his request for judgment of acquittal regarding the criminal mischief charge.

Litigants, including criminal defendants, must properly preserve for review the issues raised in the appellate court by raising them first in the trial court. Commonly referred to as the contemporaneous objection rule, a litigant must preserve a specific issue by: 1) making a timely contemporaneous objection in the trial court; 2) stating the legal grounds for that objection; and 3) raising the specific argument in the appellate court that was asserted as the legal ground for the objection or motion made in the trial court. Harrell v. State, 894 So.2d 935 (Fla.2005). The record reveals that Sanchez did not comply with these requirements. Now we must determine whether the exception to the contemporaneous objection rule allows us to proceed to consider the specific argument raised by Sanchez.

The sole and limited exception just referred to allows us to review and correct fundamental errors. It is the definition of fundamental error that draws the boundaries of the exception so narrowly: an error is fundamental if it "reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Anderson v. State, 841 So.2d 390, 403 (Fla.2003), cert....