Stanton v. State

• Decision Date: 30 August 1977
• Docket Number: No. 76-1725,76-1725
• Citation: 349 So.2d 761
• Parties: Linda STANTON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 761

349 So.2d 761

Linda STANTON, Appellant, v. The STATE of Florida, Appellee.

No. 76-1725.

District Court of Appeal of Florida, Third District.

Aug. 30, 1977.

Hirschhorn & Freeman, Miami, for appellant.

Robert L. Shevin, Atty. Gen., and Anthony Musto and Sidney M. Pertnoy, Asst. Attys. Gen., for appellee.

Before PEARSON, BARKDULL and HUBBART, JJ.

PER CURIAM.

Linda Stanton was found guilty by a jury of grand larceny. On this appeal, she questions the sufficiency of the evidence to constitute the crime for which she was found guilty and claims error in the trial court's failure to require the State to produce at trial a claimed statement made by the victim. She also claims reversible error in the court's failure to give a curative instruction or to declare a mistrial following an improper and prejudicial question by the prosecutor where an objection to the question was sustained but no curative instruction or mistrial was requested by trial counsel. We hold that none of the points presents reversible error, and we affirm.

The complainant, Jose Sanchez, was experiencing personal health and marital problems, which were further complicated by the fact that his son was suffering from anemia. After visiting several doctors without success, Sanchez, upon reading an advertisement in a local newspaper, called the appellant, Linda Stanton, a licensed spiritualist, and made an appointment.

Sanchez's initial appointment and meeting with appellant was either on February 26th or 27th, 1976. For this initial visit and consultation, Sanchez was charged five dollars by appellant. During the course of this initial meeting, appellant advised Sanchez that her fee to help him with his problems would be twelve hundred dollars. Sanchez, upon complaining about this fee, was told that the alternative was that he could leave. Upon being told this, Sanchez agreed to the fee.

Sanchez returned that same afternoon without an appointment and gave appellant six hundred dollars the remaining six hundred dollars to be paid when appellant's work was completed.

From this point on, the appellant's and the complainant's versions of the facts are diametrically opposed. Sanchez testified that he returned the following Monday, March 1, 1976, with two eggs, which he had been told by the appellant to bring with him. The appellant performed some kind of ceremony with the eggs and then told Sanchez to get $10,000. During all this, Sanchez testified that only he and the appellant were present. Sanchez then went to the bank where he had two accounts (each being a ten thousand dollar account) and withdrew ten thousand dollars. A State's witness, a vice president of the bank, testified that on March 1, 1976, ten thousand dollars was withdrawn from Mr. Sanchez's account.

Sanchez then allegedly returned to appellant's office and gave her the money again, with no one else present. Appellant then told him to go back to the bank and get the rest of the money (the other ten thousand dollar account) and also to bring back a white chicken.

Sanchez then apparently went to the bank to withdraw the remaining ten thousand dollars and then returned to appellant's office with the money and a chicken. The appellant went through a type of ritual with the chicken once again, with no one else present.

According to Sanchez, appellant then put all the money under the chicken's wing and told Sanchez that within two days, more or less, he could get his twenty thousand dollars back. Appellant told Sanchez that she was going to bury the money and chicken and get the evil out of them and they agreed he would return to her office in two days.

According to Sanchez, the next time he saw appellant was two days later, on Wednesday. At that time, the appellant told him that it was "too soon," to which Sanchez responded that he could not wait any longer. Appellant replied that it was impossible. It was at this point that Sanchez believed there was a fraud being perpetrated upon him.

Sanchez then went to the police to press charges. Officer Postal, with whom he spoke, told him to call appellant to see what she would say. He called and she told him to "come in on the following Wednesday," which he did. This time he was joined by appellant and her husband, while appellant's secretary was just outside the room's open door. Sanchez claimed he was insulted by them and his money was not returned. This was the last time Sanchez went to appellant's office. Since that last meeting, however, Sanchez's health remained unchanged, his son's improved, but his domestic difficulties increased.

Under the appellant's first point, it is contended that where the receipt of money from another is coupled with a promise that said money would be returned some time in the future but the money is never returned, the facts are not sufficient to support a conviction of grand larceny. This contention does not present error in view of the holding of the District Court of Appeal, Fourth District, in Williams v. State, 239 So.2d 127 (Fla. 4th DCA 1970), where, under very similar facts, the court held:

"As to the first point, we find that the evidence was sufficient to support a determination by the jury either that appellant obtained the $700.00 by fraud or trickery with the preconceived purpose of converting the money to his own use and to deprive the owner thereof, thereby vitiating any consent of the owner to the taking, Campbell v. State, 1944, 155 Fla. 359, 20 So.2d 127; Bussart v. State, 1937, 128 Fla. 891, 176 So. 32; or that the consent was not as broad as the taking in that Everett only permitted appellant to retain the money for the purpose of blessing it and returning it to Everett in a few days, yet appellant either intended at the time of receiving the money, or decided thereafter to convert it to some unauthorized use with intent to permanently deprive the owner thereof."

See Mehr v. State, 59 So.2d 259 (Fla.1952); Padgett v. State, 82 So.2d 372 (Fla.1955), and Casso v. State, 182 So.2d 252 (Fla. 2d DCA 1966).

Appellant's second point urges error upon the failure of the court to require the production of a statement claimed to have been made by the victim to the State prior to trial. During the progress of this appeal, the appellant moved for an order of this court remanding the cause to the trial court for a hearing on the claimed statement. An order was thereafter entered by this court remanding the cause and temporarily relinquishing the jurisdiction ". . . for a period of thirty (30) days for the limited purpose of determining whether or not there (was), in fact, existing at the time the victim testified, a prior, sworn statement and, if so, whether said statement should have been turned over...