       Third District Court of Appeal
                               State of Florida

                         Opinion filed October 28, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D13-2751
                         Lower Tribunal No. 06-26350 I
                             ________________


                           Jacqueline Izquierdo,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler-
Mendez, Judge.

     Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public
Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for appellee.

Before WELLS, LAGOA, and LOGUE, JJ.

           ON MOTION FOR REHEARING OR CLARIFICATION

      LAGOA, J.
      We deny Appellant Jacqueline Izquierdo’s (“Izquierdo”) Motion for

Rehearing or Clarification. On our own motion, however, we withdraw our prior

opinion issued on May 13, 2015, and substitute the following in its place.

      Izquierdo seeks reversal of a trial order denying her motion for judgment of

acquittal resulting in her conviction for obtaining a mortgage by false pretenses

and first degree grand theft. We affirm.

I.    FACTUAL AND PROCEDURAL HISTORY

      Izquierdo purchased a condominium unit with a mortgage from

Countrywide. At the closing, Rita Garrett (“Garrett”), the closing agent, created

two HUD forms.1 One form listed a seller contribution of $13,448.67. The other

form, the one provided to Countrywide, listed a seller contribution of $85,282.29

and an unsecured note of $145,812.00 to Cosmopolitan Mortgage that purportedly

was to be satisfied at the closing. It is undisputed that the note to Cosmopolitan

Mortgage did not exist.

      The day after the closing, Izquierdo incorporated C & C Investment and

Management Corporation (“C & C Investment”) and designated herself as its

President and Secretary. A few days following the closing, Garrett’s employer,

Leopold, Korn, and Leopold, P.A., issued a check of $70,000.00 to C & C

1 The State does not allege that Izquierdo made any fraudulent representations in
her mortgage application, only her HUD statements. Although there was no
evidence presented that the bank relied on the HUD statement in making its
determination whether to approve the loan, Countrywide did rely on the HUD
statements in distributing the loan proceeds.

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Investment. Cosmopolitan Mortgage received $146,101.86. Garrett testified, and

Izquierdo does not dispute, that the check was made out to C & C Investment at

the direction of co-defendant, Pedro Rodriguez.

        The State presented evidence that Countrywide relied on the information

within Izquierdo’s HUD form to disburse $70,000.00 to Izquierdo and to disburse

funds to satisfy the non-existent Cosmopolitan Mortgage note. At the trial, a Bank

of America2 mortgage resolution associate testified that the HUD forms were the

documents used in the transaction for Izquierdo’s condominium unit. The Bank of

America witness testified that the bank “rel[ies] on these records in order to

function as a corporation, and [it] rel[ies] on their truthfulness.” A fraud examiner

also testified that the use of HUD forms resulted in Izquierdo receiving $70,000.00

cash and Cosmopolitan Mortgage receiving $146,101.86 for the non-existing note.

The loan at issue prohibited cash to the buyer as part of the loan proceeds, and the

fraud examiner testified that Izquierdo wrote checks from her C & C Investment’s

account to herself, the Lee County Tax Collector, State Farm Insurance, two other

mortgage companies, and Countrywide.

II.     STANDARD OF REVIEW

        A motion for judgment of acquittal is reviewed de novo to determine

whether the evidence is legally sufficient to support the jury's verdict. See Pagan

v. State, 830 So. 2d 792, 803 (Fla. 2002).        When considering a motion for


2   Bank of America, N.A. is Countrywide’s successor by way of a merger in 2011.
                                          3
judgment of acquittal, all evidence is viewed in the light most favorable to the

State. See Irizarry v. State, 905 So. 2d 160, 165 (Fla. 3d DCA 2005); see also

Nooe v. State, 892 So. 2d 1135, 1138 (Fla. 5th DCA 2005). As explained in

Bufford v. State, 844 So. 2d 812, 813 (Fla. 5th DCA 2003):

             A motion for judgment of acquittal is designed to challenge the
      legal sufficiency of the evidence. If the State presents competent
      evidence to establish each element of the crime, a motion for
      judgment of acquittal should be denied. State v. Williams, 742 So. 2d
      509, 510 (Fla. 1st DCA 1999). The court should not grant a motion for
      judgment of acquittal unless the evidence, when viewed in light most
      favorable to the State, fails to establish a prima facie case of guilt.
      Dupree v. State, 705 So. 2d 90, 93 (Fla. 4th DCA 1998). In moving
      for a judgment of acquittal, a defendant admits not only the facts
      stated in the evidence, but also every reasonable conclusion favorable
      to the State that the fact-finder might fairly infer from the evidence.
      Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974). It is the trial judge's
      task to review the evidence to determine the presence or absence of
      competent evidence from which a jury could infer guilt to the
      exclusion of all other inferences. State v. Law, 559 So. 2d 187, 189
      (Fla. 1989). We review the record de novo to determine whether
      sufficient evidence supports the verdict. Williams, 742 So. 2d at 511.

      In a circumstantial evidence case, the trial judge must determine whether

competent evidence exists from which the jury could infer guilt to the exclusion of

all other inferences. See State v. Law, 559 So. 2d 187, 189 (Fla. 1989). The State

must only introduce competent evidence that is inconsistent with the defendant's

theory of events. See Giralt v. State, 935 So. 2d 599, 601-02 (Fla. 3d DCA 2006).

The State is not required to conclusively rebut every possible variation of events

that can be inferred from the evidence. Id. If the State creates an inconsistency

with the defendant’s theory, a motion for judgment on acquittal should be denied

                                         4
to let the jury resolve the inconsistency. Id. at 602. If, after the evidence is viewed

in the light most favorable to the State, a rational juror could find the existence of

the elements of the offense beyond a reasonable doubt, there is sufficient evidence

to sustain a conviction. Grant v. State, 43 So. 3d 864, 868 (Fla. 5th DCA 2010).

III.   ANALYSIS

       Izquierdo asserts that the State failed to present a prima facie case that she

obtained a mortgage from Countrywide by false pretenses in violation of section

817.54, Florida Statutes (2006). Section 817.54 provides:

       Any person who, with intent to defraud, obtains any mortgage,
       mortgage note, promissory note or other instrument evidencing a debt
       from any person or obtains the signature of any person to any
       mortgage, mortgage note, promissory note or other instrument
       evidencing a debt by color or aid of fraudulent or false representation
       or pretenses, or obtains the signature of any person to a mortgage,
       mortgage note, promissory note, or other instrument evidencing a
       debt, the false making whereof would be punishable as forgery, shall
       be guilty of a felony of the third degree, punishable as provided in s.
       775.082, s. 775.083, or s. 775.084.

(emphasis added).

       To obtain a mortgage through fraud, the victim must rely on the fraudulent

statements. See generally Green v. State, 190 So. 2d 614, 616 (Fla. 3d DCA 1966)

(reasoning that the victim's reliance on the false or misrepresented information is

an essential element of obtaining property by false pretense); see also Ex parte

Stirrup, 19 So. 2d 712, 713 (Fla. 1944) (“Inasmuch as deception is the essence of

the crime, there must be a causal relation between the representation or statement

made     and   the    delivery   of    the property.”).
                                           5
      The State has the burden of proving the victim relied on the defendant’s

misrepresentation and was deceived by it. See Adams v. State, 650 So. 2d 1039,

1041 (Fla. 3d DCA 1995); see also Barrios v. State, 75 So. 3d 374, 376 (Fla. 4th

DCA 2011). The victim must be aware of the false information in order to rely on

it. See Grant, 43 So. 3d at 868 (finding that the alleged victim, the seller, did not

rely on misrepresentations made concerning a mortgage loan because there was no

evidence that the seller saw the mortgage documents); see also Pizzo v. State, 910

So. 2d 287, 293 (Fla. 2d DCA 2005) (reasoning that the State did not establish

reliance when there was no evidence the defendant had any contact with the

victim/customer and the customer only signed the defendant’s fraudulent forms

after a third party’s misrepresentations and omissions regarding the forms).

      Here, the State introduced evidence supporting Countrywide’s reliance on

Izquierdo’s false representations regarding her mortgage in the HUD statement

provided to Countrywide and that the money was disbursed to Izquierdo on the

basis of the false statements in the HUD statement. As such, we conclude that the

State presented a prima facie case that Izquierdo obtained a mortgage by false

pretenses.

      Izquierdo further argues on appeal that the State failed to present a prima

facie case that she intended to temporarily deprive Countrywide of its property

($70,000.00 cash back to Izquierdo via C & C Investment and $146,101.86 to



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Cosmopolitan Mortgage) in violation of sections 812.014(1), (2)(a), Florida

Statutes (2006). Section 812.014(1), Florida Statutes (2006), provides:

      A person commits theft if he or she knowingly obtains or uses, [3] or
      endeavors to obtain or to use, the property of another with intent to,
      either temporarily or permanently:
      (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.

      Izquierdo argues that the State failed to present evidence that she intended to

deprive Countrywide of its property. Specifically, she argues that there is no

evidence inconsistent with her intent to pay off her Countrywide mortgage as

shown by her eighteen monthly payments to Countrywide.

      Because intent is a state of mind, it is usually proven with circumstantial

evidence. See Sebastiano v. State, 14 So. 3d 1160, 1164 (Fla. 4th DCA 2009).

Concerning motions for judgment of acquittal where the State’s evidence is


3Section 812.012(3), Florida Statutes (2006), in turn, defines “obtains or uses” as
any manner of:

      (a) Taking or exercising control over property.
      (b) Making any unauthorized use, disposition, or transfer of property.
      (c) Obtaining property by fraud, willful misrepresentation of a future
      act, or false promise.
      (d)1. Conduct previously known as stealing; larceny; purloining;
      abstracting; embezzlement; misapplication; misappropriation;
      conversion; or obtaining money or property by false pretenses,
      fraud, or deception; or
          2. Other conduct similar in nature.

(emphasis added).

                                         7
circumstantial in nature, the Supreme Court of Florida explained in Law, 559 So.

2d at 188-89:

               A motion for judgment of acquittal should be granted in a
               circumstantial evidence case if the state fails to present
               evidence from which the jury can exclude every
               reasonable hypothesis except that of guilt. . . .
                      It is the trial judge's proper task to review the
               evidence to determine the presence or absence of
               competent evidence from which the jury could infer guilt
               to the exclusion of all other inferences. That view of the
               evidence must be taken in the light most favorable to the
               state. Spinkellink v. State, 313 So. 2d 666, 670 (Fla.
               1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49
               L.Ed.2d 1221 (1976). The state is 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. See Toole v. State, 472
               So. 2d 1174, 1176 (Fla. 1985). Once that threshold
               burden is met, it becomes the jury's duty to determine
               whether the evidence is sufficient to exclude every
               reasonable hypothesis of innocence beyond a reasonable
               doubt.


(footnote omitted). Convictions that are supported by competent and substantial

evidence are not generally reversed on review. See Barrios, 75 So. 3d at 376

(citing Pagan, 830 So. 2d at 803).

      Izquierdo relies upon Barrios, 75 So. 3d at 374, and Green v. State, 90 So.

3d 835 (Fla. 2d DCA 2012), to support her assertion that the State failed to provide

sufficient evidence to prove she intended to deprive Countrywide of its property.

In Barrios, the sole fact that the defendant made a false statement about his income

to   qualify    for   a   mortgage     was
                                             8
insufficient to prove that the defendant committed theft. Barrios, 75 So. 3d at 377.

Barrios stands for the proposition that evidence of misrepresentation of income on

a mortgage application, without more, is insufficient to prove the defendant

intended to deprive a bank of its property.

      Here, unlike Barrios, the State presented evidence beyond the mere

existence of misrepresentations in the HUD form submitted to the bank. Here,

Izquierdo executed two HUD forms and submitted the false one to Countrywide.

Based on that false HUD statement, Izquierdo received a cash payment of

$70,000.00 even though the closing instructions for Izquierdo’s Countrywide

mortgage state that a borrower must not receive any cash proceeds unless the

lender approves it. It was undisputed that Countrywide, the lender, did not approve

a cash out in Izquierdo’s transaction. Through Garrett’s testimony detailing the

closing procedure and the fraud examiner’s testimony regarding the role of the

HUD forms in Izquierdo’s transaction, the State presented sufficient evidence that

Izquierdo intended to deprive Countrywide of its property.

      Izquierdo’s reliance on Green is similarly unavailing.        In Green, the

defendant misrepresented income on a mortgage application. 90 So. 3d at 836.

The Second District reasoned that Green’s “misrepresentations could provide

circumstantial evidence of Green’s intent to steal.” Id. at 837. However, the

inference that Green intended to commit theft was contradicted by his diligent

payments on the loan and his repayment of the mortgage in full within six months.

                                          9
Id. The court held in Green that evidence of Green’s misrepresentations on the

mortgage application was not inconsistent with the reasonable hypothesis that he

intended to repay the loan. Id. Additionally, as noted by Judge Altenbernd in his

concurring opinion, the bank gave Green funds in a “completely normal, secured

transaction” as the bank obtained the rights to the property identified in the

mortgage and the defendant promptly made all payments on the mortgage. Id. at

838 (Altenbernd, J., concurring).

      Here, the State presented evidence inconsistent with Izquierdo’s hypothesis

that she intended to pay off the Countrywide mortgage. Although Izquierdo made

payments on the mortgage, it is unreasonable to infer that she intended to pay off

the mortgage after she received the $70,000.00 cash back. See Henry v. State, 133

So. 3d 1034, 1038 (Fla. 4th DCA 2014) (reasoning that, although partial payment

can negate an inference of an intention to steal, the State can present sufficient

circumstantial evidence of felonious intent if there is “evidence of willful

misrepresentations to induce the seller to close on the transaction”). Additionally,

Izquierdo’s transaction was not a “completely normal” transaction like the

mortgage loan in Green. Izquierdo took on the obligation to pay someone else’s

debt, namely, the non-existent note “owned” by Cosmopolitan Mortgage and for

which Cosmopolitan, not Izquierdo, received $146.101.86. Garrett also testified

that it is rare for a buyer to receive cash back from a mortgage because

Countrywide prohibits the buyer from receiving a cash back.

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      Additionally, the record clearly establishes that Izquierdo took money she

was not entitled to because there was no seller contribution of $85,282.29 as stated

in the HUD form. Cf. Vroom v. State, 48 So. 3d 82, 84 (Fla. 2d DCA 2010)

(reasoning that the State could not prove the defendant’s intent to commit theft

because there was no evidence that the defendant’s financial disclosure was

inaccurate at the time it was made). The State introduced evidence that Izquierdo

received $70,000.00 cash back despite Countrywide’s closing instruction

prohibiting Izquierdo from receiving cash and that Cosmopolitan Mortgage

received $146,101.86 for the non-existent note. Both of these improper payments

resulted from misrepresentations made by Izquierdo on her HUD statement. We

therefore find that the State presented a prima facie case that Izquierdo committed

first degree grand theft.

      Accordingly, we affirm Izquierdo’s conviction for obtaining a mortgage

through false pretenses and first degree grand theft.

      AFFIRMED.




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