West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

           In the case of Ernest Henry Vroom versus the State of Florida, Mr. Vroom was convicted of the crime of grand theft based on the following facts:

          "Vroom was the principal in a business known as Funding American Mortgage Corporation (FAMC). FAMC was licensed by the State of Florida as a mortgage lender . . . . Vroom's role as an agent for FAMC was to negotiate loan agreements with potential borrowers and then 'sell' the transactions to the ultimate lenders. In each of the three transactions that are the subject of this [case], Vroom collected an advance fee as a part of the negotiations with the borrowers. Vroom, however, failed to close any of the three transactions. In two of the transactions, Vroom was able to return the advance fee to the borrower, but he failed to do so in the transaction with Mr. Thomas Coghill, Sr. This failure was the basis of Vroom's grand theft conviction.

          At jury trial, after the close of the [prosecution's] case, Vroom [asked the judge to find him not guilty of grand theft], arguing that the [prosecutor] had failed to present sufficient evidence from which the jury could infer that he had the requisite intent to commit [grand theft]. The facts basically showed that Coghill paid to FAMC the required advance fee and that Vroom then transferred it to an attorney's trust account in London. Upon the failure of Vroom to close the loan, he and FAMC failed to return the deposit as agreed to by a commitment letter. There was no evidence that any of the funds remained with or were returned to Vroom or FAMC by the London attorneys or any other third party. Further, there was no evidence that Vroom had any relationship with the London attorneys or other parties that eventually received the money."

          Vroom appealed his conviction to Florida's Second District Court of Appeal which concluded that the evidence presented at Vroom's trial did not show that, at the time of the transaction, he had the intent to obtain the money by fraud, deception, or with an intent to deprive the borrower of the funds.  More specifically, the court of appeal rejected the following three arguments put forward by the prosecution on appeal:

          1.  The prosecution's first argument was that "Vroom provided to Coghill a personal financial statement that demonstrated that Vroom was personally able to guarantee the repayment of the advance fee.  [Since] Vroom was unable to subsequently return the fee when the loan did not close as planned, the reasonable inference is that he had provided deceptive financial information in the disclosure statement for the purpose of intentionally deceiving Coghill in an attempt to obtain Coghill's funds."  

          The court of appeal rejected this argument stating that "[t]here was no evidence that the financial disclosure was inaccurate at the time it was made. The fact that, at some future time, Vroom could not make the repayment is not sufficient to support a conviction of grand theft. Although the facts may support the inference that Vroom was intentionally deceiving Coghill at the time he received the funds, the same facts could also support the reasonable inference that Vroom had encountered economic [troubles] after supplying the disclosure statement. As such, the fact that Vroom's financial condition at the time of the requested repayment was not consistent with that represented in the financial disclosure statement he provided to Coghill is not enough, on its own, to support a conviction for grand theft."

          2.  The prosecution's second argument on appeal was that "because Vroom had failed to proceed to closing on the prior two loans, he intentionally deceived Coghill as to his ability to obtain the loan and that the deception was for the purpose of unlawfully obtaining the advance fee from Coghill."

          The court of appeal rejected this argument as well because "[t]he record indicates that Vroom was not very successful as a mortgage lender. But the fact that he had failed to obtain the prior loans does not, on its own, support the inference that he knew he could not complete this transaction and that he was fraudulently representing his ability to do so."

          3.  The prosecution's third and final argument on appeal was that "Vroom violated the statutory requirements that apply to mortgage lenders by failing to keep the funds from Coghill's advance fee in a federally insured bank account. This violation, argued the prosecution, was sufficient to support the inference that Vroom intentionally attempted to deprive Coghill of his funds."

          The court of appeal rejected this final argument stating that "[a]lthough Vroom did move the funds out of the country by transferring them to the trust account of an attorney in London, he did so with Coghill's permission and knowledge. Although the placement of the funds may have violated [certain licensing requirements of Florida law], the facts of this case do not support the inference that this was being done for a criminal purpose, that is, attempting to deprive Coghill of the use of his funds."

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           In the case of Bertone versus the State of Florida, Mr. Bertone was convicted of the crime of dealing in stolen property for "trafficking" in two saws which he pawned and later retrieved from the same pawn shop.

          The evidence at Bertone's trial consisted of the victim stating that "the saws were stolen from his truck between June 15 and 17, 2002.  Bertone testified that after work on June 17, 2002, he ran into his friend, Jose Garcia, a carpentry worker.  Garcia's car had broken down and appeared to be overheated.  Because he did not have identification with him, Garcia asked Bertone to pawn two saws for him so that Garcia could use the money.  Bertone took the saws to the Happy Hocker pawn shop and requested $40 for them.  He took the money back to Garcia.  A few days later, Bertone returned to the pawn shop with money given to him by Garcia.  He retrieved the saws and returned them to Garcia."

          In order to prove that Bertone knew or should have known that the saws were stolen, the prosecutor relied upon a law which says that "proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen."

          Mr. Bertone appealed his conviction to Florida's Fourth District Court of Appeal which reversed the conviction because "the unexplained possession of recently stolen property, and nothing more, was insufficient to support [Bertone's] conviction" for dealing in stolen property.  The court of appeal found the following facts to be particularly relevant:

          1.  Bertone did not try to conceal his conduct with the saws; rather, he pawned and retrieved the saws using his real name and identification;

          2.  He did not sell the saws at less than fair value;

          3.  Bertone used the saws as collateral for a loan from the pawn shop, and he repaid that loan;

          4.  He was not caught possessing the saws a very short time after they had been stolen from the victim's truck;

          5.  Nothing about the physical condition of the saws should have alerted Bertone that they were stolen;

          6.  He was not caught in a lie while giving an improbable story; and

          7.  What Bertone stated at his trial did not conflict with anything he said prior to his trial.

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           In the case of Julie Matthews versus the State of Florida, Ms. Matthews appealed a judge's decision to not expunge her criminal record for grand-theft auto because she had been previously adjudicated guilty of DUI.

          An article that I wrote on my website, Florida Criminal Records:  Frequently Asked Questions, looks at the Matthews case and why it was that an appellate court agreed with the judge's decision to not expunge Ms. Matthews' criminal record.

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           In the case of C.B. versus the State of Florida, a juvenile with the initials "C.B." was found guilty of the crime of battery on a law enforcement officer based upon the following facts:

          "On January 16, 2007, Jane Luckett called police and advised them that her daughter C.B. had failed to appear at a scheduled Marchman Act hearing. . . . Part V of the Act provides that parents can petition for involuntary treatment for their minor children who are determined by the trial court to be substance abusers. Luckett asked that her daughter be picked up pursuant to an ex parte order which she believed the trial court had issued. Officer Quigley was dispatched and drove his patrol car to Luckett's residence, arriving, apparently coincidentally, when C.B. was approaching the residence on foot. He made no attempt prior to approaching C.B. to verify Luckett's information that the trial court had issued an ex parte pick-up order.

          Officer Quigley testified that he arrived in a marked police cruiser and that he was wearing his uniform. He approached C.B., told her why he was there, and 'attempted to detain her temporarily to investigate.' C.B. refused to stop or cooperate with Quigley, resulting in Quigley's attempt to 'physically detain' her, and he 'attempted to escort her peacefully back to my vehicle.... It uh, escalated to the point where I needed to basically use a physical restraint maneuver to gain control over her.' Quigley called for backup and Officer Robinson responded to his call. Robinson was able to handcuff C.B. and both officers escorted her to Robinson's vehicle. C.B. actively resisted throughout the process and the officers used significant measures, including leg restraints, to subdue her. While the officers were attempting to affix a seat belt to prevent C.B. from leaning forward, she spit on Officer Robinson several times. The spitting resulted in the conviction which is the subject of this appeal. Neither officer indicated they ever had an intention to arrest C.B. nor did they communicate to her that she was under arrest, although Officer Robinson stated that 'I transported her to the police department, decided to take her away from there.... [W]e just decided to take her to the station and put her in a holding cell.' "

          Florida law provides that "[a] law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, is not justified in the use of force if the arrest or execution of a legal duty is unlawful and known by him or her to be unlawful."  In other words, a police officer cannot use force against you unless he has legally detained you in the first place.

          On appeal, C.B. argued that the two officers who detained her did not have the right to use force while doing so because their actions in restraining her were unlawful.  Florida's Second District Court of Appeal agreed with her for the following reasons:

          1.  There is nothing stated in the Marchman Act to support the notion that failing to appear for a civil proceeding is a crime. If a judge had actually issued a pick-up order, as reported by C.B.'s mother, then Quigley may have been justified in arresting her on the basis of that order. However, Quigley made no effort, prior to making contact with C.B., to verify through police sources that such an order had actually been issued, and he stated that afterwards he was not able to confirm the issuance of such an order.

          2.  There were no exigent circumstances compelling an immediate apprehension of C.B. Officer Quigley could have taken sufficient time to confirm the existence of a pick-up order before making any contact with C.B. As it turned out, there was no pick-up order and therefore no justification for arresting C.B.

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           In the case of Corey Bennett versus the State of Florida, Mr. Bennett was convicted of the crimes of trafficking in cocaine, possession of marijuana, and possession of drug paraphernalia based upon the following set of facts:

          "Bennett was wanted on felony charges, although no arrest warrant had been issued. A Tampa police officer received a tip that Bennett could be found at a certain residential address. The tipster reported that Bennett was outside the front of the residence, possibly participating in a drug deal.

          At the given address there was a main house in the front and a second dwelling, a cottage of sorts, in the rear. Bennett's grandmother and some other family members lived in the main residence. The [prosecutor] presented no evidence to show who lived in the rear building, which was a small, one-bedroom dwelling with a living room, kitchen, and bath.

          As the officer made his way to the location, the tipster reported that Bennett had run to the rear building. When the officer arrived, he proceeded to the cottage and knocked on the door. Receiving no response, he then walked around the structure and observed a broken window. He looked through the window into the bedroom and spied Bennett peeking out from the adjoining bathroom. The officer announced his presence and his intention to arrest Bennett. Bennett refused the officer's order to come out, whereupon the officer climbed through the broken window and made the arrest.

          After waiving his [Miranda] rights, Bennett first told the officer that he did not live in the cottage and did not know who did. He claimed that he had found the door open and had run inside. After the officer mentioned the possibility of burglary or trespass charges, Bennett said that he stayed there sometimes. The officer asked for and received Bennett's permission to search the premises.

          The search revealed contraband in the living room and bedroom. On the lower shelf of an entertainment center in the living room, the officer found two slabs of crack cocaine, a baggie of marijuana, and a digital scale and razor blade with cocaine residue. In the bedroom, a second officer found an open cardboard box full of men's clothing. Also inside was a small plastic sandwich bag box, and it contained seven slabs of crack cocaine. A man's shirt was lying draped in or across the top of the cardboard box, and Bennett's driver's license was found in the shirt pocket. There was also a letter, addressed to Bennett, somewhere in the cardboard box."

           Bennett appealed his convictions, and Florida's Second District Court of Appeal reversed his convictions for the following reasons:

          1.  Bennett did not physically possess either the drugs or the drug paraphernalia.

          2.  Neither did Bennett constructively possess either the drugs or the drug paraphernalia.

          3.  In order to prove constructive possession, the prosecutor had to show that Bennett knew of the presence of those illegal items and that he had the ability to exercise "dominion and control" over them.

          4.  Although one could reasonably conclude that Bennett knew of the illegal items in the living room because they were in plain view, that fact alone does not support an inference that he had control over them unless he also had control over the premises themselves.  

          5.  But there was no evidence showing that Bennett had control over the premises.  At best, the evidence showed that he was simply a visitor.  Nor was there any evidence that Bennett made incriminating statements when he was arrested, there was no eyewitness testimony, and there was no scientific evidence such as fingerprints linking him to the drugs or the drug paraphernalia.

          6.  Although the location of Bennett's driver's license and the letter addressed to him might be consistent with his having knowledge of the drugs as well as dominion and control over them, it is equally consistent with the reasonable conclusion that "the drugs were in the possession and control of the owner or another occupant of the premises and that Bennett simply threw his belongings over or into the open cardboard box without knowing of the drugs inside."

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