Scobee v. State, BD-445

• Decision Date: 05 May 1986
• Docket Number: No. BD-445,BD-445
• Citation: 11 Fla. L. Weekly 1053,488 So.2d 595
• Parties: 11 Fla. L. Weekly 1053 Gary SCOBEE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 595

488 So.2d 595

11 Fla. L. Weekly 1053

Gary SCOBEE, Appellant, v. STATE of Florida, Appellee.

No. BD-445.

District Court of Appeal of Florida,

First District.

May 5, 1986.

Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Lawrence A. Kadan, Asst. Atty. Gen., Tallahassee, for appellee.

BOOTH, Chief Judge.

This cause is before us on appeal from a judgment entered on the verdict of a jury finding defendant guilty of grand theft. Defendant was sentenced to five years of imprisonment. On appeal, defendant contends that the trial court erred in: (1) denying his motion for judgment of acquittal, (2) instructing the jury on the inference arising from proof of possession of recently stolen property, and (3) departing from the presumptive guideline sentence.

The facts are that when Mrs. Anderson arrived home after work on November 17, 1983, she found in her kitchen the three persons implicated in this theft, to-wit: the defendant, Gary Scobee, his wife, Carolyn Scobee, and one Linda Stiegel. The Scobees were acquaintances of the Andersons, and Mrs. Anderson inquired as to the whereabouts of her husband. The Scobees told her that her husband was in the bathroom. Mrs. Anderson then left her purse in one of the two bedrooms in the home and found her husband not in the bathroom, but either drunk or knocked out in another bedroom with the door closed. She went in and tried unsuccessfully to revive him. In the meanwhile, the defendant, who had followed Mrs. Anderson down the hallway, stood in the hall doorway in such a position as to block her view of her purse in the other room. Mrs. Anderson then heard a car start outside, and the defendant stated: "Let me see what the girls are doing." Mrs. Anderson testified:

Q. [counsel for prosecution] Did he ever come back and tell you what the girls were doing?

A. No, sir.

Q. Did you go to check on him?

A. Yes, I went down the hallway just behind him and time I got into the dining area, kitchen area, he was gone, and I ran when I saw the drawer was missing out of the bar, I said, what in the world and I went running out on the porch and by that time the car was going down the driveway.

On cross-examination, the victim further testified:

Q. [defense counsel] So some time transpired between the time he went down the hall and turned the corner and the time you went down the hall and turned the corner ...?

A. Not all that much....

Q. And wouldn't he have had time.... Well answer me this, when he turned the corner, is that the corner right near the door?

A. No, you have the dining area and the kitchen part to go through and then out onto the porch.

Q. I see and how much time would you estimate transpired from the time he disappeared from your sight around the corner and the time that you came around the corner?

A. Well it couldn't have been more than two or three minutes because my eyes hit the drawer. The bar sits like this and when you come out of the hallway into the living room of the trailer part and the bar is across that way and the minute I saw the drawer gone I said, what in the world is going on and I ran just as fast as I could across and onto the porch and then that's when I saw the car going.

Q. So it could have been two or three minutes between the time that he turned the corner and the time that you went, ran outside and saw the car going?

A. Probably two minutes.

The thieves had taken the missing kitchen drawer containing rolls of coins, Mr. Anderson's medication, and boat keys. After returning inside, Mrs. Anderson discovered her purse was also missing. Its contents included a billfold, a bank bag with the day's receipts from Mrs. Anderson's beauty parlor, and jewelry.

The vehicle was driven into Georgia, and an agent of the Georgia Bureau of Investigation recovered the drawer and a yellow bank bag from the passenger area of the vehicle. Defendant was the driver, and defendant's wife and Linda Stiegel were passengers in the vehicle at the time the property was recovered. Subsequently, the purse and part of its contents were discovered on top of the freezer in the kitchen of a home occupied by the three persons.

At the trial, defendant's wife testified that she stole the kitchen drawer and that Linda grabbed Mrs. Anderson's purse, and that both of these actions were done without the knowledge of her husband. She also testified that the drawer and the purse were put in back of the station wagon and covered, and that defendant was not told or made aware of the theft. Somewhat inconsistently, she also testified that Linda had exclusive possession of the purse from the time they left the Anderson home until the time of the arrest. The defendant's wife also testified that she was charged and convicted of grand theft in connection with the case and that she had previously been convicted on three occasions of offenses involving dishonesty or false statement. On cross-examination, it was brought out that defendant's wife had previously told Agent Lewis an entirely different story concerning the crime here involved, a story which exonerated both herself and her husband.

I.

In moving for a judgment of acquittal, the defendant admits the facts adduced in evidence and every conclusion favorable to the State which is fairly and reasonably inferable thereupon. Spinkellink v. State, 313 So.2d 666, 670 (Fla.1975). In Lincoln v. State, 459 So.2d 1030, 1032 (Fla.1984), the Florida Supreme Court, quoting from its earlier decision in Heiney v. State, 447 So.2d 210 (Fla.1984), upheld a robbery conviction for the driver of the get-away car, holding that in a circumstantial evidence case:

The question of whether the evidence fails to exclude all reasonable hypothesis of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse a judgment based upon a verdict returned by the jury.

On appeal, no issue is made of the standard jury instruction given by the trial court which allowed the jury to consider, as an additional circumstance of guilt, defendant's flight from the scene. Here, the jury was entitled to and did disbelieve the explanation that defendant, though present at the scene, did not participate in the offense and was not aware of the theft of the various items involved. We hold that the case was correctly presented to the jury and that the evidence is sufficient to support appellant's conviction of grand theft.

II.

The second issue raised on appeal is the trial court's giving of the following standard jury instruction on theft, an instruction taken from Section 812.022, Florida Statutes:

Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to the inference that the person in possession of the property knew or should have known that the property had been stolen.

On appeal, defendant contends that the evidence was only of constructive and joint possession of the stolen property, and therefore "an inference of guilt" should not arise. In this, defendant confuses the language of the instruction which is that the jury be allowed to infer knowledge that the property is stolen.

There are two similar, yet separate and distinct, inferences that can be made from proof of possession of recently stolen property: (1) an inference that the possessor stole the property, as in Walton v. State, 404 So.2d 776 (Fla. 1st DCA 1981), and Griffin v. State, 370 So.2d 860 (Fla. 1st DCA 1979); and (2) an inference that the possessor knew or should have known the property was stolen. Section 812.022(2), Florida Statutes, supra. The latter was the charge given here.

In view of our holding on Point I, infra, there is evidence, under several recognized doctrines, from which the jury could find defendant had possession of the property. First, under the rule as stated in 16 Florida Jurisprudence 2d Criminal Law Section 1288 at 329:

[O]ne who is present at the commission of a robbery, with an unlawful intent to aid it by acts of encouragement, words, or gestures, may be held responsible as a principal.......