Tinker v. State
| Decision Date | 08 June 2022 |
| Docket Number | 4D19-3233, No. 4D19-3235 |
| Parties | Illya Livingstone TINKER, Appellant, v. STATE of Florida, Appellee. Patricia Anne Tinker, Appellant, v. State of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carla P. Lowry of Lowry at Law, P.A., Fort Lauderdale, for appellant Illya Livingstone Tinker.
Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant Public Defender, West Palm Beach, for appellant Patricia Anne Tinker.
Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
Patricia Anne Tinker ("Defendant Wife") and Illya Tinker ("Defendant Husband") (collectively "Defendants") appeal their judgments and sentences after a jury found them guilty of over 100 counts related to an alleged scheme involving both Defendants and their son ("the Son")1 . Although Defendants filed separate appeals, we resolve the appeal with a consolidated opinion. Defendants raise multiple issues on appeal.2 We agree with Defendants that the trial court erred in: (1) permitting a detective to identify Defendant Wife's and the Son's signatures on documents; and (2) its handling of a document improperly given to the jury during its deliberations. We reverse and remand for a new trial, explaining our reasoning below. We decline to address the remaining issues.3
The State's case alleged that Defendants, along with the Son and other co-defendants, effectuated a scheme whereby they obtained properties via fraudulent deeds. Defendants were listed as corporate officers for two companies ("the Companies") Defendant Husband created. The Son was also listed as a corporate officer for one of the Companies for at least some period during the alleged scheme. Defendants and the Son were all tried in front of the same jury, represented by the same counsel. At trial, Defendants faced over 115 counts, including counts of aggravated white-collar crime, grand theft, criminal use of personal identification information, criminal use of a deceased individual's personal identification information, and unlawful filing of false documents or records against property.
At trial, the State did not contest that at least some of the business conducted by the Companies was legitimate. However, the State alleged that the Companies, through Defendants and the Son, also perpetrated fraud. The State entered numerous deeds into evidence, which purportedly transferred ownership interests in over thirty properties to various entities, including the Companies, which the State connected to Defendants. The State also entered numerous other documents into evidence, including powers of attorney, that also connected Defendants to the fraudulently obtained properties. Finally, the State called dozens of witnesses who testified that either their purported signature, or the purported signature of someone with whom they were sufficiently familiar, on the deeds and documents was fraudulent. Witnesses included the purported grantors of properties, family members of deceased individuals who were purported grantors of the properties, and notaries.
Defendants did not contest that the various documents which the State entered into evidence were fraudulent. Instead, Defendants’ theory of defense was that they had no knowledge of the fraudulent activity and that the fraud had been perpetrated by a rogue employee of Global Management, along with the help of several other individuals. Background information relevant to each issue on appeal which we address will be provided within the sections addressing each issue.
The jury found Defendants guilty of 101 counts, covering all the different subject matter crimes charged in the information. The trial court granted Defendant Wife's motion for downward departure and sentenced her to thirty-five years in prison, followed by twenty years of probation. The trial court sentenced Defendant Husband to a total of 177 years in prison. Defendants gave notice of appeal.
Defendant Wife's and the Son's Signatures
At trial, evidence was admitted that Defendant Wife was the only signor on the bank accounts for one of the Companies.
During the lead detective's testimony, the State asked him who notarized a document relating to one of the fraudulently obtained properties. The detective responded that Defendant Wife notarized the document, and Defendants objected. The trial court sustained Defendants’ objection based on an improper predicate. The State then asked the detective if he had investigated the appearance of Defendant Wife's signature, and he responded that he had, by looking at "hundreds of checks that [Defendant Wife] has written out of her bank account" and the signature contained in Defendant Wife's driver's license records. Defendants again objected. However, this time, the trial court overruled the objection, explaining, in front of the jury, that the detective was not testifying as an expert, but based on the predicate which he provided and "his training and experience, a lay person with sufficient training and experience can testify." Shortly after, when the State again asked the detective to identify Defendant Wife's signature on the document, Defendants objected. Again, however, the trial court overruled Defendants’ objection, and in front of the jury, stated that the detective could identify Defendant Wife's signature "[b]ased on his training and experience and the predicate."
Throughout the remainder of the detective's testimony, he identified multiple signatures on fraudulent documents and told the jury that the signatures belonged to Defendant Wife. Additionally, the detective stated that he had compared the Son's driver's license signature to several signatures on documents connected to the fraudulently obtained properties, and told the jury that the signatures belonged to the Son. The detective's testimony directly refuted Defendants’ theory of defense that a rogue employee of one of the Companies had perpetrated the fraud, not Defendants or the Son.
Defendants argue that the trial court erred in allowing the detective to identify Defendant Wife's and the Son's signatures on documents admitted into evidence over their objection. "The standard of review for the admissibility of evidence is abuse of discretion, limited by the rules of evidence." Carlisle v. State , 137 So. 3d 479, 484 (Fla. 4th DCA 2014).
"[A] witness testifying as to his opinion of the genuineness of a writing must either be an expert or sufficiently acquainted with the handwriting of the defendant to testify as a skilled witness." Clark v. State , 114 So. 2d 197, 203 (Fla. 1st DCA 1959) ; see also Redmond v. State , 731 So. 2d 77, 78 (Fla. 2d DCA 1999). The detective was not called as an expert witness, and his identification of Defendant Wife's and the Son's signatures was not that of an expert. Thus, the only issue is whether the detective was sufficiently acquainted with Defendant Wife's and the Son's signatures to make the identification. See Clark , 114 So. 2d at 203.
To be sufficiently acquainted, a lay witness may identify an individual's signature where the lay witness has seen the individual sign his or her name on different occasions. See Pittman v. State , 51 Fla. 94, 41 So. 385, 393 (1906) ( ); see also Clark v. Grimsley , 270 So. 2d 53, 57 (Fla. 1st DCA 1972) (). However, a lay witness cannot identify a signature where the familiarity with the handwriting was "acquired for [the] purpose of litigation." Proctor v. State , 97 So. 3d 313, 315 (Fla. 5th DCA 2012) (citing Clark , 114 So. 2d at 203 ); Charles W. Ehrhardt, 1 West's Fla. Practice Series , section 901.4 (2021 ed.) ("However, a lay witness may not give an opinion as to the handwriting if the familiarity was acquired for the purpose of the litigation.").
Here, in laying a foundation for his testimony that the Defendant Wife's and the Son's signatures were on some of the fraudulent documents in the case, the detective testified that he had viewed the records which he had obtained during his investigation, including "hundreds of checks" written out of the corporate bank account for which Defendant Wife was the sole person authorized to sign checks, as well as Defendant Wife's and the Son's signature on their driver's licenses. In other words, the Detective became "familiar" with Defendant Wife's signature and the Son's signature only during his investigation. We must determine, then, if familiarity acquired for the purposes of a criminal investigation is the same as familiarity acquired for the purposes of litigation.
Defendants argue this case is like Proctor . In Proctor , two stolen checks were cashed at a bank, and both checks contained an endorsement with the defendant's name. 97 So. 3d at 313. A video of the transaction showed that the man who had presented the stolen checks had provided a Florida driver's license. Id. at 313–14. After consulting DAVID,4 a detective determined that the driver's license number on the checks was "invalid," but found that the defendant's driver's license number was only several digits off from the number endorsed on the stolen checks. Id. at 314. After comparing the defendant's photograph in DAVID, watching the video of the transaction, viewing the defendant's...
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