       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       DOUGLAS S. LIVINGSTON,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D12-527

                            [January 7, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey Levenson, Judge; L.T. Case Nos. 04-17053
CF10A and 05-15367 CF10A.

  Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

   The defendant appeals from his convictions on two counts of extortion
and eleven counts of third degree grand theft relating to work to be
performed by his construction company on projects for several customers.
The defendant raises several arguments, but we write to address only his
argument that the trial court erred in denying his motion for judgment of
acquittal on the grand theft counts where work was performed on each of
the projects. On that argument and all other arguments raised, we affirm.

   Section 812.014(1)(a), Florida Statutes (2004), defines theft, in
pertinent part as follows:

      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 . . . [d]eprive the
      other person of a right to the property or a benefit from the
      property.
§ 812.014(1)(a), Fla. Stat. (2004) (emphasis added). Section 812.012(3),
Florida Statutes (2004), defines “[o]btains or uses” as “any manner of . . .
[m]aking any unauthorized use, disposition, or transfer of property [or]
[o]btaining property by fraud, willful misrepresentation of a future act, or
false promise.” § 812.012(3)(b) & (c), Fla. Stat. (2004).

    Applying the foregoing statutes here on de novo review, we conclude
the state introduced competent, substantial evidence to prove that the
defendant committed theft. See Pagan v. State, 830 So. 2d 792, 803 (Fla.
2002) (“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.”)
(citations omitted). Viewing the evidence in the light most favorable to the
state, the defendant made unauthorized use, disposition, and transfer of
funds as to certain customers and obtained funds by fraud, willful
misrepresentation of a future act, or false promise as to other customers.
See id. (“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.”) (citation omitted).

   The defendant argues the fact that work was performed on each of the
projects negates a finding of theft. In support, the defendant relies on
Segal v. State, 98 So. 3d 739 (Fla. 4th DCA 2012), for the proposition that
“evidence of actual performance of some portion of the contract negates an
intent not to perform at the inception of the contract.” Id. at 744.

   However, the defendant’s reliance on Segal is incomplete. We explained
this point in Henry v. State, 133 So. 3d 1034 (Fla. 4th DCA 2014):

          In Segal, the defendant entered into a contract to construct
      cabinets for a customer. The customer wrote a check for some
      of the costs, which the defendant deposited. The defendant
      came to the customer’s home to measure for the cabinets,
      purchased materials, and made several rental payments on
      his work space where he would construct the cabinets.
      However, the defendant did not install the cabinets at any
      point. The state charged the defendant with grand theft. At
      the end of the state’s case at trial, the defendant moved for a
      judgment of acquittal, arguing that the state failed to prove an
      intent to steal or defraud. The trial court denied the motion.

         We reversed and directed the trial court to vacate the
      defendant’s conviction and sentence. After examining similar

                                      2
      cases from other districts, we indeed stated that “evidence of
      actual performance of some portion of the contract negates an
      intent not to perform at the inception of the contract.” Id.
      However, our holding was not based solely on the fact that the
      defendant had actually performed a portion of the contract.
      Instead, our holding also was based on the fact that “[t]he state
      presented no evidence of any willful misrepresentations to
      induce the homeowner to sign the contract.” [Segal, 98 So. 3d]
      at 745.

Henry, 133 So. 3d at 1037-38 (emphasis added). Having explained that
point, we affirmed the conviction in Henry on the basis that the state
presented evidence of willful misrepresentations to commit the theft.

   Here, as in Henry, and unlike in Segal, the state presented evidence of
willful misrepresentations to commit the theft. The state also presented
evidence of unauthorized use, disposition, or transfer of customer funds.
Thus, sufficient circumstantial evidence of felonious intent existed and the
state met its burden of producing evidence inconsistent with the
defendant’s theory of innocence. See Pagan, 830 So. 2d at 803 (“[I]f 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.”); Segal,
98 So. 3d at 743 (“Intent, being a state of mind, is often not subject to
direct proof and can only be inferred from circumstances.”) (citation and
quotations omitted).

   Similar to our admonition in Henry, we do not mean to express the view
that the state should prosecute as a theft every dispute over a contractor’s
performance. Cf. Henry, 133 So. 3d at 1038 (“By this opinion, we do not
mean to express the view that the state should prosecute as a theft every
breach of contract involving the failure to pay money.”). Instead, we again
write to express the view that the state should not be precluded from
prosecuting a theft under such circumstances “when it can prove
circumstantial evidence of felonious intent, as that term is used in section
812.014(1), which is inconsistent with the defendant’s theory of
innocence.” Id.

   Based on the foregoing, we affirm the defendant’s convictions for third
degree grand theft. We also affirm the defendant’s convictions for extortion
without further discussion.

   Affirmed.


                                     3
CIKLIN, J., concurs.
WARNER, J., concurs in part and dissents in part with an opinion.

WARNER, J., concurring in part and dissenting in part.

   I dissent as to the affirmance of the convictions for grand theft. On de
novo review, I conclude that this case is like Segal v. State, 98 So. 3d 739
(Fla. 4th DCA 2012), and partial performance has negated any finding of
theft. Moreover, I disagree with the majority’s statement that the state
produced evidence of unauthorized use of funds or any willful
misrepresentations to secure any funds. The type of representations
which we found were sufficient to prove theft in Henry v. State, 133 So. 3d
1034 (Fla. 4th DCA 2014), are not present in this case.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     4
