       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                     v.

                            ILAN TIMIANSKI,
                                Appellee.

                              No. 4D18-3409

                            [January 22, 2020]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, Judge; L.T. Case No. 18-1809CF10A.

   Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellant.

   Robert David Malove of The Law Office of Robert David Malove, P.A.,
Fort Lauderdale, for appellee.

GERBER, J.

    The state appeals from the trial court’s post-verdict order granting the
defendant’s motion for judgment of acquittal on the charge of grand theft
of property valued at $300 or more, but less than $5,000. The state argues
the trial court erred by applying the circumstantial evidence standard to
the motion for judgment of acquittal. We agree with the state’s argument.
The state’s evidence was not entirely circumstantial, so the circumstantial
evidence standard did not apply to the motion for judgment of acquittal.
We reverse and remand for the trial court to reinstate the guilty verdict
and proceed with sentencing.

                           Procedural History

    The crime occurred at a hardware store, where an asset protection
officer observed, and surveillance cameras recorded, the defendant’s
actions. The state’s evidence was presented as follows.

   The asset protection officer, while on routine patrol within the hardware
store, saw the defendant use an employees-only ladder to retrieve a $379
drill kit from the employees-only top shelf located several feet above
ground level. The $379 drill kit’s packaging was nearly identical to the
packaging for a same-brand $179 drill kit located at ground level. The
defendant put the $379 drill kit in a shopping cart and starting walking
towards the exit. The asset protection officer followed the defendant.

   The asset protection officer saw the defendant walk past the sale
registers and reach the exit. A security guard was posted at the exit to
inspect receipts for items which customers were taking from the store. The
defendant, rather than showing a paid receipt for the $379 drill kit to the
security guard, showed the security guard a “Special Services Customer
Invoice” for the similarly-packaged $179 drill kit. The invoice indicated
the $179 drill kit had been sold to a remodeling business.

   The asset protection officer, after witnessing the defendant’s exchange
with the security guard, intervened and asked the defendant to come to
his office. The defendant complied. In the office, the defendant said that
the remodeling business was one of his accounts with the hardware store.

    The asset protection officer testified that the invoice which the
defendant presented to the security guard is a document which a customer
uses to pick up a prepaid item. The normal procedure is for the customer
to bring the invoice to the customer service desk. A customer service
employee retrieves the item and provides the customer with a receipt,
which is required to exit the store with the item. The invoice cannot be
used to exit the store with an item. The invoice contains a stamp in large
visible print, stating, “NOT VALID FOR MERCHANDISE CARRY OUT,”
underneath which is a stamp with smaller but still visible print, stating:

                            FOR WILL CALL
                         MERCHANDISE PICK-UP
                       PROCEED TO WILL CALL OR
                          SERVICE DESK AREA

    Because the defendant knowingly endeavored to obtain the $379 drill
kit by using the $179 drill kit invoice, the state charged the defendant with
third degree grand theft under sections 812.014(1) and (2)(c)1., Florida
Statutes (2017), which provide:

      (1) A person commits theft if he or she knowingly obtains or
      uses, or endeavors to obtain or to use, the property of another
      with intent to, either temporarily or permanently:



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      (a) Deprive the other person of a right to the property or a
      benefit from the property.

      (b) Appropriate the property to his or her own use or to the
      use of any person not entitled to the use of the property.

      ....

      [(2)](c) It is grand theft of the third degree and a felony of the
      third degree, punishable as provided in s. 775.082, s.
      775.083, or s. 775.084, if the property stolen is:

      1. Valued at $300 or more, but less than $5,000.

§ 812.014(1), (2)(c)1., Fla. Stat. (2017).

   After the state presented the evidence described above, the state rested.
The defense then raised its first motion for judgment of acquittal. Defense
counsel argued, in pertinent part:

          [A]s far as the element of knowledge, I would say . . . that
      all the evidence presented at this stage has shown that my
      client believed that he had a right to the property that he tried
      to take, that is was not knowingly and unlawfully. And that
      he did not do so with the intent to deprive [the hardware store]
      of their right to [the] property . . . Everything that’s been
      presented has shown that my client was forthcoming to any
      [hardware store] employee that he was in front of. He didn’t
      attempt to conceal anything. He was on a giant ladder that
      he’s not supposed to be on, according to the [asset protection
      officer]. And he had not picked up the drill that he did pay
      for.

         So, everything is consistent with him believing that he had
      a right to that property Your Honor. So, for that reason, I
      would ask for the Court to enter a judgment of acquittal.

   The state responded, in pertinent part:

         Looking at the light most favorably to the State. The State
      has proved a prima facie case starting with knowledge. It is
      clear that the defendant knew what he was doing, knew that
      he was taking the drill, which is apparent on the video. You
      see him going up this ladder, taking the drill and making no

                                       3
      attempt to pay for the wrong item that he took. He didn’t go
      back to will call. He didn’t go to customer service. He
      proceeded to walk directly out of [the hardware store]. Even
      though, it says on [the invoice] that he needs to go to will call.

   Defense counsel replied, in pertinent part:

         [The asset protection officer] testified that even some of [the
      [hardware store employees are confused about [the difference
      between a] receipt and . . . this [invoice] . . . .

         So, my client could have definitely be [sic] confused. And
      . . . he walked into [the security guard] presenting these
      documents. . . .

         [The security guard] [c]ould have just told [the defendant],
      “Hey, you have to go to the desk.” And that would have been
      taken care of at the time.

   The trial court denied the defendant’s first motion for judgment of
acquittal.

   Defense counsel rested without presenting any evidence, and then
raised a second motion for judgment of acquittal. Defense counsel argued,
in pertinent part:

         Just for the record, the evidence presented Judge, is
      circumstantial, as to intent. And there needs to be evidence
      in a purely circumstantial case as to intent that goes against
      the defendant’s theory of innocence.

         So, there is case law, Judge, and I have some here if the
      Court would like to see it. That if the defense is [mistaken,]
      that he had a good faith belief that this item was his[, t]hat
      there would need to be some fact presented by the State
      inconsistent with that theory . . . at this time, and, Judge, I
      don’t believe that for a second JOA the standard being
      whether reasonable minds could differ as to the guilt or
      innocence of the defendant. I don’t believe that reasonable
      minds could differ. I believe that everything, as I mentioned
      earlier, has been consistent with his theory of mistake.




                                      4
         I don’t believe anything other than the fact that he walked
      out or attempted to walk out with the [invoice] that [is] not
      inconsistent with the defense theory.

    The trial court reserved ruling on the defendant’s second motion for
judgment of acquittal. The parties presented closing arguments, and the
trial court instructed the jury. The jury, after twenty-seven minutes of
deliberations, found the defendant guilty as charged.

   Three days later, the trial court held a hearing to resume the discussion
of the defendant’s second motion for judgment of acquittal. Defense
counsel argued, in pertinent part:

         I just want to renew the Defense’s second motion for
      judgment of acquittal based on the special standard of review
      that applies when a conviction is based on circumstantial
      evidence.

         ....

         And, Judge, in this case, our hypothesis of innocence was
      that it was a mistake. And it’s our position that the State’s
      evidence, while it could have been consistent with guilt . . .
      there was no fact that was inconsistent with the theory of
      defense being that it was a mistake. The testimony was that
      he paid for a [drill kit]; on that same day put it on will-call;
      that the item that he left with, or that he attempted to leave
      with, was a similar [drill kit]; that they were identical in
      packaging . . . that the defendant presented a will-call [invoice]
      showing he had paid the hundred and seventy-nine dollars to
      a [hardware store] employee at the exit; and that he took the
      item from the shelf out in the open, not trying to conceal; he
      didn’t try to run out of the store. And, Judge, it’s our position
      that all of that is consistent with it being a mistake and him
      believing that he was taking the item that he did pay for.

   The state responded, in pertinent part:

         Well, Judge, I had the opportunity to look at all the case
      law that defense counsel provided. From the case law, it is
      clear, two things. One, that intent and knowledge is a
      question for the jury and, two, that circumstantial evidence is
      more than enough to prove a larceny or grand theft.


                                      5
        ....

         Here, the evidence is contradicted, Your Honor. I would
     say that there’s . . . far more evidence that it was not a
     mistake, for multiple reasons. One, the [invoice] clearly
     indicates that it’s not a receipt, yet the defendant was trying
     to pass it off as one. Two, the [invoice] that the defendant had
     didn’t even have his name on it, yet he was trying to pass it
     off as his own. Three, he’s on video making no attempts to
     talk to any store employee, stop at the . . . register, stop at the
     . . . customer service desk, even though it’s clear on the
     [invoice] that he’s passing off to be true, where it states on the
     bottom that all will-call items must be picked up from the
     customer service desk. . . . Four, he selects a drill all the way
     at the top of the shelf, going far out of his way, when the drill
     that he knew he purchased was at the bottom.

        ....

        And, lastly, Your Honor, he walks out with a different drill,
     not the one he paid for. Everything goes towards the
     defendant having knowledge. As far as him not knowing [the
     invoice] was not a receipt, even though he was trying to pass
     [the invoice] off as [a receipt] – Why? Because on the [invoice]
     that was introduced into evidence it clearly says . . . that it
     cannot be used as proof of purchase. . . . [A]s far as his
     knowledge as to where he needed to go to pick up a will-call
     item: [a]t no point after picking up the item did he ever go to
     the customer service desk. And . . . as far as a mistake . . . to
     the actual item, he picked up an item that’s 200 dollars more,
     that, although it may appear similar . . . the packaging, it is
     completely different than what was on his [invoice] and what
     he purchased. He walked out with a better drill and a more
     expensive drill.

   The trial court granted the defendant’s second motion for judgment of
acquittal, reasoning:

         [I]t appears to me that the state of law is that in
     circumstantial evidence cases . . . the evidence must not only
     be consistent with guilt but inconsistent with every
     reasonable hypothesis of innocence. I don’t believe in this
     case that it is inconsistent with every reasonable hypothesis
     of innocence. . . . Your theory of the case, [defense counsel],

                                     6
      was that it was a mistake. He didn’t have a receipt; he had
      [an invoice]. . . . The [testimony was] the packages were
      identical between the 179-dollar drill . . . and the 379-dollar
      . . . drill. It appears to me that the motion should be granted.

                               This Appeal

   This appeal followed. The state argues the trial court erred by applying
the circumstantial evidence standard to the defendant’s second motion for
judgment of acquittal. We agree with the state’s argument.

   In Pagan v. State, 830 So. 2d 792 (Fla. 2002), our supreme court set
forth the standards of review for a motion for judgment of acquittal:

      In reviewing a motion for judgment of acquittal, a de novo
      standard of review applies. Generally, an appellate court will
      not reverse a conviction which is supported by competent,
      substantial evidence. If, after viewing the evidence in the light
      most favorable to the State, a rational trier of fact could find
      the existence of the elements of the crime beyond a reasonable
      doubt, sufficient evidence exists to sustain a conviction.
      However, if the State’s evidence is wholly circumstantial, not
      only must there be sufficient evidence establishing each
      element of the offense, but the evidence must also exclude the
      defendant’s reasonable hypothesis of innocence.

Id. at 803 (emphasis added).

    More recently, our supreme court, in Knight v. State, 186 So. 3d 1005,
1010 (Fla. 2016), has specified that “the circumstantial evidence standard
of review applies only where all of the evidence of a defendant’s guilt—i.e.,
the evidence tending to show that the defendant committed or participated
in the crime—is circumstantial, not where any particular element of a crime
is demonstrated exclusively by circumstantial evidence.” (emphasis added).

    Our supreme court also has defined “direct evidence” and
“circumstantial evidence” as follows: “Direct evidence is that to which the
witness testifies of his own knowledge as to the facts at issue.
Circumstantial evidence is proof of certain facts and circumstances from
which the trier of fact may infer that the ultimate facts in dispute existed
or did not exist.” Mosley v. State, 46 So. 3d 510, 526 n.14 (Fla. 2009)
(citation omitted).



                                     7
   Here, the trial court erred in applying the circumstantial evidence
standard, because the state’s evidence of guilt was not wholly
circumstantial. Most of the state’s evidence was direct, not circumstantial.

    The state presented direct evidence in the form of the asset protection
officer’s observations, and the hardware store’s surveillance recording,
indicating that the defendant used an employee-only ladder to retrieve the
$379 drill kit from a high shelf located several feet above ground level,
rather than the $179 drill kit located at ground level. The defendant was
also observed, and recorded, attempting to exit the store with the $379
drill kit by using the $179 drill kit’s invoice sold to a remodeling business.

   Direct evidence also exists in the form of the invoice itself, which
contains a stamp in large visible print, stating, “NOT VALID FOR
MERCHANDISE CARRY OUT,” underneath which is a stamp with smaller
but still visible print, stating:

                            FOR WILL CALL
                         MERCHANDISE PICK-UP
                       PROCEED TO WILL CALL OR
                          SERVICE DESK AREA

   The only circumstantial evidence of guilt upon which the state relied
was the reasonable inference, in the light most favorable to the state, that
the defendant “knowingly” obtained the $379 drill kit by using the $179
drill kit’s invoice. See Sebastiano v. State, 14 So. 3d 1160, 1164 (Fla. 4th
DCA 2009) (“[I]ntent, being a state of mind, is rarely if ever susceptible of
direct proof. Almost inevitably, as here, it must be shown solely by
circumstantial evidence.”) (citation omitted).

   However, that one piece of circumstantial evidence does not make the
rest of the state’s evidence wholly circumstantial. Rather, the reasonable
inference that the defendant knew he was attempting to exit the store with
the $379 drill by using the $179 drill kit’s invoice was merely the final
piece of evidence which a reasonable juror had to add to the state’s direct
evidence to find the defendant guilty beyond a reasonable doubt.

    If the trial court had applied the correct standard of review for a motion
for judgment of acquittal, whether “after viewing the evidence in the light
most favorable to the State, a rational trier of fact could find the existence
of the elements of the crime beyond a reasonable doubt,” Pagan, 830 So.
2d at 803, the trial court would have been obligated to deny the
defendant’s motion. A reasonable trier of fact could find the defendant
intended to, either temporarily or permanently, deprive the hardware store

                                      8
of the $379 drill kit, and appropriate the $379 drill kit to his own use, by
showing the $179 drill kit’s invoice to the security guard at the hardware
store’s exit.

    Even if the state’s evidence had been wholly circumstantial, the state
was not required to “rebut conclusively every possible variation of events
which could be inferred from the evidence, but only to introduce competent
evidence which is inconsistent with the defendant’s theory of events.”
State v. Law, 559 So. 2d 187, 189 (Fla. 1989) (internal footnote and
quotation marks omitted). The state met that threshold burden by
presenting evidence of the defendant using the employees-only ladder to
retrieve the $379 drill kit from the employees-only top shelf, and then
presenting the $179 drill kit’s invoice which contained a stamp in large
visible print, stating, “NOT VALID FOR MERCHANDISE CARRY OUT.”
That evidence was inconsistent with the defendant’s theory that he simply
made a mistake in showing the $179 drill kit’s invoice to the security guard
while trying to walk out of the store with the $379 drill kit.

   Once the state met its threshold burden, it became “the jury’s duty to
determine whether the evidence [was] sufficient to exclude every
reasonable hypothesis of innocence beyond a reasonable doubt.” Id. The
jury completed its duty by determining, after only twenty-seven minutes
of deliberations, that the defendant was guilty as charged.

                               Conclusion

   Based on the foregoing, we reverse the trial court’s order granting the
defendant’s second motion for acquittal. We remand for the trial court to
reinstate the defendant’s guilty verdict and proceed with sentencing.

   Reversed and remanded for proceedings consistent with this opinion.

DAMOORGIAN and KLINGENSMITH, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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