Stav v. State

• Decision Date: 12 November 2003
• Docket Number: No. 4D00-4370.,4D00-4370.
• Parties: Uzi Gary STAV, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

860 So.2d 478

Uzi Gary STAV, Appellant, v. STATE of Florida, Appellee.

No. 4D00-4370.

District Court of Appeal of Florida, Fourth District.

November 12, 2003.

Rehearing Denied December 31, 2003.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Uzi Gary Stav was convicted of organized scheme to defraud and grand theft greater than $20,000 and less than $100,000. He was sentenced to concurrent 42.5 month sentences on both convictions. Stav now appeals these convictions and sentences on three grounds.

First, Stav asserts that the trial court erred by improperly admitting Williams Rule evidence. See Williams v. State, 110 So.2d 654 (Fla.1959)

. Second, Stav contends that the constitutional protection against double jeopardy was violated by convicting and sentencing him for the two crimes in question. Third, Stav posits that the trial court erred by imposing an upward departure sentence based on the 1995 rather than 1994 sentencing guidelines where Heggs v. State, 759 So.2d 620 (Fla.2000), was applicable. We find error only as to the double jeopardy issue on appeal, as the two crimes share common elements and the State concedes the violation. As a result, the grand theft conviction and sentence is reversed and remanded for discharge.

In January 1996, Stav began working for Lifestyle Vacation Incentives ("LVI"), and was charged with developing and administering an international air travel division in addition to having some operational responsibility for the domestic air travel division. Stav had extensive experience in the travel industry, and was paid a base salary plus commissions.

In November 1997, LVI became aware that Stav had booked some Austrian vacation packages without the authority to do so and terminated Stav. Following his termination, several LVI employees audited Stav's records, resulting in this criminal case against him. Subsequent to his termination by LVI, Stav was employed by Take Me Along Travel. There, without permission, he misused two Delta AD-75 discount coupons, which entitle travel industry members to a 75% discount on travel. By not heeding restrictions associated with these coupons when booking a trip for his wife and himself, Stav caused the travel agency to be responsible for additional costs. Stav also failed to pay the full value of these tickets. It is the introduction of this AD-75 evidence which generated the Williams Rule issue on appeal.

The criminal charges against Stav in this case are based on four incidents. First, Stav owned a number of United Airlines "denied boarding compensation coupons," referred to as "magic coupons" throughout the case below. These magic coupons are essentially ticket vouchers that can be exchanged for an airline ticket up to a specified value. He agreed to sell these magic coupons to LVI for use in domestic travel incentive programs. Several times Stav charged LVI for magic coupons to be submitted with tickets to the Airline Reporting Corporation ("ARC"), a travel industry clearinghouse. However, when Stav submitted tickets to ARC, he failed to attach the magic coupons. As a result, LVI was charged by ARC for the full fare of the tickets, in addition to having paid Stav for the unattached vouchers.

Second, Stav acquired airline tickets for family and friends to join him both for business trips as well as vacations and LVI was charged by ARC for much of this travel. Stav argues that he was authorized to take another individual on all business trips at company expense, and that he paid for all family travel. LVI refutes this.

Third, Stav falsified his commission reports by stating that he was due commissions for tickets that were exchanged or voided, purchased with discounts or incentives, or purchased in-house. Commissions are not payable for these types of tickets, and LVI contends that Stav knew he was not entitled to these commissions.

Fourth, Stav posted frequent charge-backs to his son Eli's credit cards. Stav claimed to have refunded customers in cash when their cash payments were not recorded by LVI, and then charged-back the amount of the refund from LVI to Eli's credit cards. LVI states that the nature of its business is such that there were very few cash payments and contends that the number of charge-backs exceeded the number of cash ticket purchases occurring at LVI.

We conclude that the AD-75 coupon evidence is admissible in this case on the ground of plan under the Williams Rule statute, rather than the ground asserted by the State at trial. On the Williams Rule issue, the standard of review applicable to the consideration of whether evidence was properly admitted is abuse of discretion. Geldreich v. State, 763 So.2d 1114, 1116 (Fla. 4th DCA 1999). The Williams Rule has been codified by the legislature in Florida Statutes section 90.404(2)(a):

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is solely to prove bad character or propensity.

As to the question of similarity, it is true that the magic coupons and AD-75 coupons were issued by different airlines and function a little differently. However, they both alter the cost of a ticket, both operate under restrictions for use, and both cause travel agencies to be charged by ARC in the amount of any unaccounted airfare. In the present case, where the identity of Stav as the perpetrator is not at issue, we conclude that the similarity of magic coupons and AD-75 coupons is sufficient for the purpose of Williams Rule admissibility. See Houston v. State, 852 So.2d 425, 427 (Fla. 5th DCA 2003)

("Similar fact evidence relevant to prove a material fact other than identity need not meet the rigid similarity requirement applied when such evidence is used to prove identity.").

We affirm the admission of the AD-75 coupons in this case based on the so-called "tipsy coachman" doctrine. Robertson v. State, 829 So.2d 901, 906 (Fla.2002). The doctrine has been analyzed by the supreme court in a Williams Rule case, and is described as allowing an appellate court to affirm the admission of such evidence where the trial court "reaches the right result, but for the wrong reason" and "there is any basis which would support the judgment in the record." Id. Although the supreme court rejected the application of the "tipsy coachman" doctrine in Robertson, that case is distinguishable from the case at bar for two reasons. See id. at 906-911.

First, in Robertson the trial court never considered the challenged evidence under the Williams Rule, because the State did not seek such review through a notice of intent. Id. at 905-906, 908. Instead, the Third District employed the Williams Rule for the first time on appeal as an alternate ground for affirming Robertson's conviction. Id. at 905. As a result, the trial court had not determined whether the evidence was similar, too remote, or too prejudicial. Id. at 907-908. This inquiry by the trial court is important because Williams Rule admissibility is a "highly individualized, factually intensive inquiry." Id. at 908. In contrast, in Stav's case, the Williams Rule was addressed by the trial court because the State filed a notice of intent. The trial court admitted the evidence after considering similarity and relevance to prove a material fact, but did so on a ground other than plan as provided for by statute.

Second, the court in Robertson concluded that the "tipsy coachman" doctrine did not apply largely because there was no record evidence of similarity between the incident admitted into evidence and the crime charged. Id. at 907, 909-911. This is not the case with Stav, because record evidence establishes the similarity between his actions at LVI and Take Me Along and those incidents both establish an ongoing plan to defraud employers.

Applying the "tipsy coachman" doctrine in the case at bar, one basis stated in the statute for the admission of Williams Rule evidence is to show a plan. Stav was convicted of organized scheme to defraud. Plan and scheme are synonyms. See The Merriam-Webster Thesaurus 422, 488 (1989 ed.). The AD-75 evidence, coupled with the magic coupon misuse, demonstrates that Stav, having experience in the travel industry, engaged in a plan to defraud employers through various methods. This method of misusing magic coupons and AD-75 coupons to affect the cost of airfare caused the travel agencies to pay for the misuse and suffer a monetary loss to the ultimate benefit of Stav. We conclude that the AD-75 coupons helped establish the presence of Stav's ongoing plan to defraud employers, rather than demonstrate bad character or propensity on Stav's part. As a result, the trial court did not err by admitting the AD-75 coupons as Williams Rule evidence.

Lastly, we address the sentencing issue. Stav was sentenced based on a 1995 guidelines scoresheet, and the 1995 sentencing guidelines were ruled unconstitutional by Heggs, 759 So.2d at 621. Due to this development, sentencing for offenses occurring between October 1, 1995 and May 24, 1997, the Heggs window, should be based on the 1994 sentencing guidelines. Trapp v. State, 760 So.2d 924, 928 (Fla.2000). When determining whether an offense was committed during the Heggs window, an ongoing felony criminal enterprise, as alleged in Stav's case, should be "sentenced under the guidelines on the beginning date of the criminal activity." Fla. R.Crim. P. 3.703(d)(5). Stav's organized scheme to defraud began in November 1996, within the Heggs window, and at first glance it appears that he was entitled to be...