              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


SHANE JUSTIN NORTH,                          )
                                             )
             Appellant,                      )
                                             )
v.                                           )        Case No. 2D16-2030
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed June 9, 2017.

Appeal from the Circuit Court for Polk
County; James A. Yancey, Judge.

Howard L. Dimmig, II, Public Defender, and
Megan Olson, Assistant Public Defender,
Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and David Campbell,
Assistant Attorney General, Tampa, for
Appellee.


LUCAS, Judge.

             The circuit court ruled that Shane North could not tell a jury he had been

given permission to take his employer's scrap materials for himself. That jury found him
guilty of two counts of dealing in stolen property.1 Because the circuit court erred when

it ruled this testimony was inadmissible hearsay, we reverse Mr. North's judgment of

conviction and sentences and remand his case for a new trial.

              Mr. North was a foreman involved in a dismantling project for a shuttered

power plant, a job which entailed removing copper cables, electrical bus bars, rectifiers,

and batteries—materials that, even when scrapped, apparently hold significant resale

value. His company's policy prohibited employees from taking or selling these

decommissioned materials; instead, a designated scrap vendor was supposed to

remove the materials from the job site. When Mr. North's company truck's GPS tracking

device indicated that his truck had traveled to a metal recycling facility during working

hours, the company became suspicious and commenced an investigation into Mr.

North's activities. As a result of that investigation, it was determined that Mr. North had

transported and sold nearly four tons of the power plant's scrapped materials to a

recycling facility by representing to the facility that the scrap belonged to him. He was

arrested and charged shortly afterward.

              Mr. North initially elected to testify at his trial. But before he took the

stand, the circuit court engaged in a colloquy with defense counsel concerning the

scope and nature of the defendant's anticipated testimony. The court remarked that Mr.

North's prospective testimony, in which he intended to describe the contents of

purported email messages he claimed to have received from his supervisors granting




              1See   § 812.091(1), Fla. Stat. (2013) ("Any person who traffics in, or
endeavors to traffic in, property that he or she knows or should know was stolen shall
be guilty of a felony of the second degree, punishable as provided in ss. 775.082,
775.083, and 775.084.").


                                             -2-
him permission to sell the scrap, appeared to the court to be inadmissible hearsay.

Defense counsel argued that the statements would not be hearsay because they went

to Mr. North's state of mind—that is, prior to him selling the material at the recycling

facility, Mr. North's understanding, based upon these emails, was that he had

permission from both the scrap vendor and his construction manager to take the

materials for himself. The circuit court remained unconvinced and ruled that the

testimony was inadmissible hearsay. His testimony thus excluded, Mr. North did not

testify and, following the jury's guilty verdict, was adjudicated and sentenced to thirty

months in prison concurrently on each charge. He now timely appeals.

              Generally speaking, a trial court's ruling on the admission of evidence will

not be reversed unless an abuse of discretion is demonstrated, Armstrong v. State, 73

So. 3d 155, 166 (Fla. 2011), but "the question of whether a statement is hearsay is a

matter of law and is subject to de novo review on appeal," Cannon v. State, 180 So. 3d

1023, 1037 (Fla. 2015) (citing Burkey v. State, 922 So. 2d 1033, 1035 (Fla. 4th DCA

2006)). Mr. North's appeal concerns the characterization of alleged email statements

he claims to have received from third parties, evidence the circuit court believed was

hearsay. In the context here, that was an erroneous characterization.

              Hearsay, the Florida Evidence Code tells us, "is a statement, other than

one made by the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2013) (emphasis

added). Certain out-of-court statements "may be offered for a multitude of purposes

other than to prove the truth of the facts asserted in them." Massey v. State, 109 So. 3d

324, 328 (Fla. 4th DCA 2013). Thus, an out-of-court statement may be admissible to




                                            -3-
establish the material effect that statement had on a listener—regardless of whether

that statement was true or not—for "[w]hen a statement is offered to prove what a

person thought after the person heard the statement, it is being offered to prove the

person's state of mind and is not hearsay." Jenkins v. State, 189 So. 3d 866, 869 (Fla.

4th DCA 2015); see also Miller v. State, 870 So. 2d 15, 17 (Fla. 2d DCA 2003)

(concluding that defendant's testimony that a deputy told him "Stop or I'll shoot" was not

hearsay because it was not offered to prove that the deputy intended to shoot the

defendant, but rather what the effect of hearing that statement had on the defendant to

explain his subsequent conduct). In that light, the alleged email statements concerning

Mr. North's permission to sell the scrap were simply not hearsay.2 See Buchanan v.

State, 743 So. 2d 59, 61 (Fla. 2d DCA 1999) (holding that trial court erred in excluding

as hearsay proffered statements that defendant accused of theft had been told by a

woman to retrieve her property, as the testimony was not presented for the truth of the

matter asserted but rather to show that the defendant lacked the necessary intent to

steal the property); White v. State, 993 So. 2d 611, 613 (Fla. 1st DCA 2008) ("The

testimony proffered by appellant was not hearsay because it was not offered 'to prove

the truth of the matter asserted'—that appellant's neighbor had been given the

generator in return for work done . . . [but] was, instead, offered to negate an essential

element of both offenses—intent."); Alfaro v. State, 837 So. 2d 429, 432-33 (Fla. 4th



              2We    further note that the availability of the email authors to testify, a
related topic that the circuit court conflated with the present issue, is immaterial, as the
availability of the scrap vendor or the construction manager to testify would relate to a
separate category of nonhearsay statements not pertinent here, statements of
identification. See Smith v. State, 880 So. 2d 730, 739 (Fla. 2d DCA 2004) (discussing
the declarant availability issue in its proper context of statements of identification). Mr.
North's identity was never at issue in the proceedings below.


                                            -4-
DCA 2002) (holding improper the exclusion of alleged out-of-court statement of

permission for an alleged car thief to drive the purportedly stolen vehicle).

              To be sure, our court has held that section 812.091(1) is a general intent

criminal offense. See Glenn v. State, 753 So. 2d 669 (Fla. 2d DCA 2000). But the

mens rea that the legislature ascribed to this offense (that the defendant "knows or

should know" that the property in question was stolen) must still be proven; Mr. North's

state of mind about his purported permission to take these materials, then, was a

material issue in his case. Cf. Foster v. State, 778 So. 2d 906, 915 (Fla. 2000) ("Of

course, the alternative purpose for which the statement is offered must relate to a

material issue in the case . . . ." (citing State v. Baird, 572 So. 2d 904, 907 (Fla. 1990))).

Thus we conclude the circuit court erred in precluding the line of testimony Mr. North

proffered. Because we cannot construe that error as harmless in this case, we must

reverse the circuit court's judgment and sentences and remand Mr. North's case for a

new trial.

              Reversed and remanded.



VILLANTI, C.J., and SILBERMAN, J., Concur.




                                             -5-
