Preview
FRANTREVA JAMELYA EDMOND,)
Appellant,
Vv.
STATE OF FLORIDA,
Appellee.
ANSWER BRIEF OF APPELLEE
On Appeal from the County Court of the 15th Judicial Cire c
In and For Palm Beach County, Florida zS*
[Criminal Division] =
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IN THE CIRCUIT COURT OF
THE FIFTEENTH JUDICIAL
CIRCUIT OF FLORIDA, IN AND
FOR PALM BEACH COUNTY,
FLORIDA
CASE NO. 2011 AP900046A ~
L.T.. CASE NO. 2011MM007006A
ORIGINAL
4
Ith Hd 12 8342102
qa
CAREY HAUGHWOUT
Public Defender
DEA ABRAMSCHMITT
Assistant Public Defender
Florida Bar No. 084506
Attorney for Frantreva Jamelya Edmond
The Criminal Justice Building
421 Third Street
West Palm Beach, Florida 33401-4203
(561) 355-7600
appeals@pd15.state.fl.usCERTIFICATE OF INTERESTED PERSONS
Counsel for Appellant, Frantreva Jamelya Edmond, certifies that the
following persons and/or entities have or may have an interest in the outcome of
this case.
Dea Abramschmitt, Assistant Public Defender
15th Judicial Circuit
(Counsel for Appellant)
The Honorable Mark T. Eissey
Circuit Court Judge, Fifteenth Judicial Circuit
(Trial Judge)
Frantreva Jamelya Edmond
(Appellant/Defendant)
The Honorable Carey Haughwout
Public Defender, Fifteenth Judicial Circuit
By: Ashley Zuckerman & Rina Kundalkar
(Trial Counsel for Appellant)
The Honorable Michael McAuliffe
State Attorney, Fifteenth Judicial Circuit
By: Andriana Lopez & Jeffrey Vivo
(Trial Counsel for Appellee)
Stephanie
Assistant State Attorney
Office of the State Attorney
(Counsel for Appellee)TABLE OF CONTENTS
CONTENTS PAGE
CERTIFICATE OF INTERESTED PERSONS... i
AUTHORITIES CITED... ccesesessssseeseseesenesesseneneeeenereesenenensessnsessenereneneenensntsseenses iii
PRELIMINARY STATEMENT......ccccsesscsssssesssesseseseseseesensssssensneseessneesasansnsnsenensarens 1
STATEMENT OF THE CASE... 2
STATEMENT OF THE FACTS ......ccecscescessessessesessesseseessseessseesssetesseesesersssneseesesees 3
SUMMARY OF THE ARGUMENT .......cccecsssssessessesesssnesesnessseescseessseeseeseanearenees 9
ARGUMENT
THE TRIAL COURT ERRED IN DENYING
EDMOND’S MOTIONS FOR JUDGMENT OF
ACQUITTAL BECAUSE THE STATE’S PURELY
CIRCUMSTANTIAL CASE-IN-CHIEF DID NOT
PROVE A PRIMA FACIE CASE, AND THE STATE
FAILED TO REBUT EDMOND’S REASONABLE
HYPOTHESIS OF INNOCENCE. .........ccccseesesessesessesessseeneseesees 10
CONCLUSION ...eececesssssssesssscsesessescsesesssessssesescseseesssssssesnsnsasassssesessesesasssseeesseeeesess 16
CERTIFICATE OF SERVICE .0...cccccssssssssessssssessecesescesessnsnessssseseseesenensassnsnsarensaesees 16
CERTIFICATE OF COMPLIANCE ..........sc:ccessesseseesesssesessseeseseeseeseseseesesseaneaneeness 17
iiAUTHORITIES CITED
CASES PAGE(S)
D.W. v. State, 702 So. 2d 288
(Fla. 4th DCA 1997) ..cscescesesessesesessesesessesssssssssesnesesseseseesereesesssseseensassseseseeeaees 13
LY.D. v. State, 711 So. 2d 202
(Fla. 2d DCA 1998) oo .ceeeeeeseeceeeeseeeetssessestestesesteesnesesesesisecseacsasensnesneeeeesneesseeea 15
LR. v. State, 671 So. 2d 278
(Fla. 2d DCA 1996) ....ceccccsscessesseseesssteseessseeseseesessesnessanessanesesressessseesssenesnsanensanees 10
Jackson v. State, 736 So. 2d 77
(Fla. 4th DCA 1999) oo. eeeneeeesereeeseeseesnesneessanensesseeseseeseeseesessnssssneensenses 10
MLP.W. v. State, 702 So. 2d 591
(Fla. 2d DCA 1997) .iscsccessscssesesresesssssesssssseseseetessseseesenenesessseseesererseseseneee 10, 12, 13
P.R. v. State, 389 So. 2d 1078
(Fla. 3d DCA 1980)... we l4
State v. Law, 559 So. 2d 187
(Fla. 1989)... eeeeseeseseseecsesscesessesssssessesnsesessssssaseesesseeseseessenseenessesseessenseasenneeneesee 11
State v. Williams, 742 So. 2d 509
(Fla. Ist DCA 1999)... LO
FLORIDA STATUTES
Section 812.014 vceccccscsscccsesessssssnsssessssecsesssssssssscscsssessssesessessseseseeseseesssescasesees 11
FLORIDA STANDARD JURY INSTRUCTIONS
14.1, Criminal Cases......cescssesesecsesesseeeseeseseseeeeeereesesrensesesessasetersensereneasesee bb
iiiPRELIMINARY STATEMENT
Appellant, Frantreva Jamelya Edmond, was the defendant and the State was
the prosecution in the County Court Criminal Division of the Circuit Court of the
Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. In the brief, the
parties will be referred to as Edmond and State, respectively.
The following symbols will be used:
“RY -- Record on Appeal
“Tv? Trial and Hearing Transcripts.STATEMENT OF THE CASE
Appellant, Edmond, was charged with petit theft for events occurring on
April 26, 2011. (R. 19) Edmond was specifically charged with taking a styling
iron, and/or a sippy cup, and/or a satin wrap from Wal-Mart. At the conclusion of
a jury trial, Edmond was found guilty as charged. -(R. 21; T. 218) The trial court
adjudicated Edmond guilty and fined her $500 in fines and court costs. (T. 237; R.
22-23) Defense’s repeated motions for judgment of acquittal and judgment
notwithstanding the verdict were denied. (R. 46-49; T. 136-47, 171-73, 222-25,
235-36, 252)STATEMENT OF THE FACTS
The State’s sole witness was loss prevention officer, John Smelzer. Smelzer
worked for the Wal-Mart at Belvedere and 441. (T. 106, 108) Smelzer testified _
that he watches numerous monitors covering about 300 cameras in the store. He
said he had a joy stick which could rotate cameras-and zoom in and out. (T. 106-
07) Once he spotted someone concealing something, he keeps watch on the person
to see whether they pay at the front or tries to exit the store without paying.
Smelzer testified that he saw someone in the store, who was later identified
as Edmond. Smelzer identified Edmond in court, although he admitted the only
way he identified her was because she sat between the two defense attorney’s at
the defense table. (T. 117-18) Also, he had looked at some photos he had of her,
apparently taken at the Wal-Mart. (T. 118) However, these photos were never
presented in court nor moved into evidence. (T. 127, 131) Additionally, in his
deposition, Smelzer said the only thing he could say as far as a description of
Edmond was that she was a black female. (T. 117)
Smelzer testified that he saw two black women selecting stuff off the shelves
and placing the items into empty Wal-Mart bags in a cart. (T. 110) Smelzer was
permitted, without objection, to testify that this was how shoplifters usually
He said he saw the women take some hair items, a curling iron, ladies socks and
maybe a towel. He did not seem very sure of the last two items. (T. 111) SmelzerSmelzer said that the women did purchase some of the items in their cart, but not
things they put into the empty bags.
Smelzer claimed that he watched the two women continuously. He said the
two women had one cart between them and stood close to each other. Wal-Mart
had had a video of all this, but someone broke. into their store and stole their DVR
players and the video was lost. (T. 113)
On cross, Smelzer again said that some of the items in the women’s cart
were paid for. He did not differentiate which items were paid for and which ones
were not. (T. 114) On redirect, Smelzer said that the same woman he saw put
items in the bag was the same woman as the one detained. (T. 119) However, he
did not say whether this was Edmond or the other woman.
The State rested immediately after Smelzer’s testimony. (T. 136) Defense
moved for judgment of acquittal arguing that the State failed to prove a prima facie
case because it failed to prove that Edmond was the person who actually took the
stolen items. Defense pointed out that Smelzer continuously and exclusively used
the words “they” and “their” when referring to the shoplifters. Smelzer never
identified Edmond as the person he saw put items into the shopping bag. He only
talked about two black women. Additionally, Smelzer gave no testimony about the
theft of a sippy cup or satin wrap or gum, as alleged in the Information. (T. 136-
37)The State countered that Smelzer stated that he saw both women putting
things in the bag. (T. 138) The trial court countered that even if both women were
placing items in the bag, but then some items were paid for and others were not
and there was no testimony as to what was what, how did this prove the state’s
case? (T. 139) There was no identification of what-was paid for and what was not.
(T. 140) Defense said there was no testimony that it was Edmond who put the
curling iron in a bag. There was also no evidence that the women were acting in
concert. This was a purely circumstantial case, said defense counsel.
The State countered that both women were standing by the same cart. The
trial court said, but there was no testimony as to what items were placed in the bag
and by whom. (T. 141) The State insisted that Smelzer testified that the curling or
styling iron was one of the items that were not paid for.
Defense argued that Smelzer said he could not recall exactly where the
women were standing. Also, Smelzer could only identify Edmond because she
was sitting at the defense table. Smelzer gave no testimony that it was actually
Edmond he saw putting certain items in the shopping bag in the cart. (T. 144)
The trial court agreed that Smelzer only used the word “they” when
describing what he saw. The State argued that both women knowingly took items,
but defense said there was no evidence that Edmond knew some items were not
for. The trial court asked the prosecutor what proof did the State have thatherself, placed the styling iron in the bag or concealed it? Or that Edmond did
anything, as opposed to the other black female? (T. 145)
When the State said that the two women were acting in concert, so they
could presume that Edmond could see the other woman putting items inside the
empty bags, the trial court said that was a real leap or stretch, as no one had
testified that Edmond was even looking at the cart when ‘the other woman placed
things into the bags. Edmond could have had her back turned while the other
woman was putting things in the bag. (T. 145-46) There was no testimony as to
what was placed in the cart versus what was placed into the bags. (T. 146) The
trial court noted that it was the State’s burden to prove the charged crime. (T. 147)
The trial court then reserved ruling on the JOA motion.
Defense called Shawonda Milian, the woman who had been with Edmond at
the Wal-Mart. (T. 157) Milian is Edmond’s niece. (T. 167) On direct, Milian
testified that she took some items from the Wal-Mart that day. (T. 157) She said
she put the items in a Wal-Mart bag. On cross examination, Milian said that the
items she took were a motion perm, a flat iron, a hair wrap, some gum, socks, a
towel, and a sippy cup. (T. 158, 159-60) When they first arrived at Wal-Mart,
Edmond went to the grocery part of the store while Milian got two empty Wal-
bags to conceal things in. (T. 158) Milian testified that Edmond never put
anything into the bags. It was all her. (T. 159) Milian said she never saw EdmondEdmond place anything in the bags. (T. 166) The only things Edmond put in the
cart were items that Edmond purchased. (T. 167)
After Milian’s testimony, defense renewed its motion for judgment of
acquittal, making the same arguments as before. The trial court still reserved
ruling on the motion. (T. 171-73)
The jury came back with a verdict of guilty as charged, and Edmond
renewed her motion for judgment of acquittal. (T. 218, 222-23) Defense now
argued that the State’s case was entirely circumstantial and it failed to present
anything to rebut Edmond’s reasonable hypothesis of innocence. (T. 223)
Additionally, Edmond was never identified as the person who placed any items in
the shopping bags, and there was no differentiation between the paid-for and un-
paid-for items. (T. 225) Edmond’s hypothesis of innocence was that she was
merely there and had no idea what her niece was doing. (T. 224)
The trial court decided it needed to play back Smelzer’s testimony. The trial
court heard Smelzer say, “What I saw was them selecting stuff off the shelf and
placing it in empty Wal-Mart bags which were in the cart, the shopping cart. (T.
232) Then, “I saw them select items off the shelf, and they actually had empty
Wal-Mart bags that they were putting the items into which, you know, was inside
shopping cart.” (T. 233) Smelzer said that the women did pay for the items in the
cart, but not the stuff in the shopping bags. (T. 234) There was no testimony as towhich stuff was paid for and which was not. The trial court denied the motion for
JOA.
Defense filed a written motion for judgment of acquittal wherein it argued
again that the State’s case was purely circumstantial, with the only witness
testifying to “they” the entire time. (T. 246) The defense witness testified that she
was the only person putting items into the shopping bags and that Edmond had
nothing to do with the stolen items, and the State presented no evidence
whatsoever to rebut Edmond’s reasonable hypothesis of innocence. (T. 246-47)
The trial court, calling it a “close call,” again denied the motion. (T. 252)SUMMARY OF THE ARGUMENT
This court must reverse the trial court’s denial of Edmond’s repeated
motions for judgment of acquittal because the State utterly failed to establish a
prima facie case of petit theft as to Edmond. Their sole witness could not testify
that it was Edmond, and not her niece, Milian, who committed the theft. All
Smelzer testified to was that he saw two black women putting items in a cart and in
a shopping bag inside the cart. He could not say who put things into the empty
shopping bags, nor which items were placed in the bag. He testified that some of
the merchandise was actually purchased at the check-out counter, but some were
not - but there was no testimony as to what was paid for and what was not. There
was also no evidence as to which woman paid for what. Smelzer’s testimony was
completely inadequate to establish the necessary elements to convict Edmond of
petit tHaftthermore, Edmond presented a reasonable hypothesis of innocence in
that the woman who was with her that day at Wal-Mart, her niece, testified for
defense that she, and she alone, put items in the shopping bag and did not pay for
them. Milian stated that Edmond had no knowledge that she was doing this, nor
did she participate in the theft. The State failed to refute or rebut her reasonable
hypothesis of innocence in its entirely circumstantial case. Thus, the trial court
was obliged to grant defense’s motion for judgment of acquittal. It reversibly erred
when it failed to do so.ARGUMENT
THE TRIAL COURT ERRED IN DENYING
EDMOND’S MOTIONS FOR JUDGMENT OF
ACQUITTAL BECAUSE THE STATE’S PURELY
CIRCUMSTANTIAL CASE-IN-CHIEF DID NOT
PROVE A PRIMA FACIE CASE, AND THE STATE
FAILED TO REBUT EDMOND’S es
HYPOTHESIS OF INNOCENCE.
The standard of appellate review on a motion for judgment of acquittal is de
novo. State v. Williams, 742 So. 2d 509 (Fla. 1st DCA 1999) ("We have de novo
review of the record to determine whether sufficient evidence supports the jury's
verdict). Our District Court has written:
A special standard of review of the sufficiency of the
evidence applies when a conviction is wholly based on
circumstantial evidence. . .
Jackson v. State, 736 So. 2d 77, 80 (Fla. 4th DCA 1999),
“Regardless of how strongly the circumstantial evidence suggests guilt, a
court may not sustain a conviction unless the evidence is inconsistent with any
hypothesis of innocence.” M.P.W. v. State, 702 So. 2d 591, 592 (Fla. 2d DCA
1997), quoting LR. v. State, 671 So. 2d 278 (Fla. 2d DCA 1996). The State is
required to prove each and every element of the offense beyond a reasonable
M.P.W., 702 So. 2d at 592. The trial court must grant a judgment of acquittal if
State “fails to present evidence from which the jury can exclude every reasonable
10hypothesis except that of guilt.” Id., quoting State v. Law, 559 So. 2d 187, 188
(Fla. 1989).
To prove Edmond guilty of petit theft, the state was required to prove that
Edmond knowingly, unlawfully obtained or used Wal-Mart’s property with the
intent to deprive Wal-Mart of their right to the property or its. use.. § 812.014,
Florida Statutes; § 14.1, Fla. Standard Jury Instructions in Criminal Cases. Here,
the circumstantial evidence was not even that strong, plus the State failed to rebut
Edmond’s reasonable hypothesis of innocence.
The State had one witness, the loss prevention officer, who could only
identify the women he saw that day as “two black females.” The only way he
could identify Edmond in court was because she was sitting at the defense table
between the two defense attorneys. Smelzer never identified Edmond individually.
His whole testimony was about “they” “them” and “their.” He could not truthfully
testify that he saw Edmond, herself, put aie in the shopping bags, or whether
the things she might have put in the cart were paid for or not. The items which
were allegedly stolen were not differentiated from those purchased, which Smelzer
said were in the cart but not in the shopping bags.
In M.P.W., the juvenile argued that he should not have been adjudicated a
delinquent where the State failed to present sufficient evidence to overcome his
reasonable hypothesis of innocence. M.P.W., 702 So. 2d at 591-92. The charge
11there was grand theft. While the victim/parents were out of town, their sons had a
bang-up party with somewhere between 50 to 100 young kids attending. During
the party, jewelry was stolen from the home. Id. at 592. Several kids, including
M.P.W., were charged with grand theft of the jewelry. There, like the instant case,
the state presented no direct evidence that M.P.W. committed the. theft.. The state
put on two witnesses, a victim and a co-defendant. The co-defendant admitted his
own involvement of the theft. Another kid from the party, and a perpetrator
himself, testified for defense, as did the defendant. Id. All the witnesses agreed
that M.P.W. was present at the party and knew about the theft, plus he handled at
least one piece of the stolen jewelry, but that was it.
M.P.W. admitted that he was handed a piece of the stolen jewelry, and he
looked at it and returned it. He denied taking any of it or ever having the intention
of taking or keeping any of the jewelry. Id. None of the witnesses testified that
M.P.W. took any of the jewelry. The only reason the judge in M.P.W. did not
the motion for judgment of acquittal was because he misheard the co-defendant
when the co-defendant testified that he overheard M.P.W. say that the jewelry
from the victim’s bedroom. For some reason, the judge thought the co-defendant
said that M.P.V. had admitted taking the jewelry from the bedroom. But a review
of the disputed testimony showed that the judge was mistaken. Id. Noting that
12“mere presence of a defendant at a crime scene is insufficient to establish guilt” the
appellate court reversed. Id. at 592-93.
In the instant case, all the State proved with Smelzer’s testimony was that
Edmond was with the co-defendant when certain items were placed in the
shopping cart and then not paid for at check out. He could not and did not testify
that Edmond, herself, put any of the items in the bag. He did not testify as to what
items she purchased. He did not testify that any unpurchased items found in the
Wal-Mart shopping bags were placed there by Edmond.
In fact, Edmond’s niece, Milian, baldly stated that she and she alone
committed the petit theft and that Edmond had no knowledge she was doing it.
Milian specifically denied Edmond having any part in the theft of items from the
Wal-Mart. The State presented no evidence to contradict Edmond’s reasonable
hypothesis of innocence. In D.W. v. State, the Fourth District found that the
juvenile’s conviction based solely on receipts from the time she worked as a sales
clerk were insufficient to negate her hypothesis of innocence. D.W. v. State, 702
So, 2d 288 (Fla. 4th DCA 1997). D.W. was adjudicated delinquent for grand theft
and appealed. The state presented receipts of twelve transactions at the store
D.W. worked as a sales clerk. D.W. testified that she probably completed well
1,000 transactions during the time she worked there. Her hypothesis of innocence
was that the errors were probably due to either computer glitches or her own
13inadvertent mistakes, or even customer error. Id. The state did not present any
testimony or other evidence rebutting D.W.’s theory of innocence. Finding that the
state’s evidence was insufficient to support D.W.’s adjudication of delinquency,
Fourth District Court reversed. Id.
Here, Edmond had a reasonable hypothesis of innocence which also was not
rebutted by the State. Edmond’s defense witness, Milian, flat out stated that
Edmond had nothing, whatsoever, to do with her own theft at the Wal-Mart.
Certainly Smelzer’s testimony did not refute Milian’s.
In a case very similar to the instant one, a store’s security officer observed
P.R. and three other women as they selected some merchandise without seeming to
regard size or price, then placed the items in a shopping cart. P.R. v. State, 389 So.
2d 1078, 1079 (Fla. 3d DCA 1980). The women then took the cart to the cash
register to check out. The cashier checked through more merchandise than she
actually rang up. The register tape revealed that a $40 payment had been tendered
with $14.10 in change. The tape total was $25.86 for merchandise worth in excess
of $200.00. Id. at 1079. However, the evidence did not reveal whether P.R. was
aware that not all the items were rung up or that the payment only covered part of
merchandise. Also, there was no evidence presented which connected P.R. with
any scheme or plan to steal the merchandise. The state failed to controvert P.R.’s
14testimony that, although she accompanied and assisted one of the girls, she did not
notice the cashier’s actions or the amount paid. Id.
The Third District wrote that the state had tried to prove P.R.’s criminal
intent by circumstantial evidence, but such evidence must be consistent with guilt
and inconsistent with any reasonable hypothesis of innocence. :Id. at 1079. The
appellate court found that standard had not been met, and reversed. Like P.R.,
Edmond was seen placing merchandise in a shopping cart along with another
person. The State, here, did not establish Edmond’s criminal intent any more than
it did in P.R.
All that the State showed in the instant case was that two black women were
observed placing items in a cart, with some of the items going into empty shopping
bags. No testimony distinguished what items were in the bags versus only in the
cart, or which woman put them in either place. The only thing the State actually
proved was Edmond’s presence at the Wal-Mart. “Mere presence at the scene of a
crime, knowledge of the crime, and flight are insufficient to justify a conviction.”
LY.D. v. State, 711 So. 2d 202, 203 (Fla. 2d DCA 1998). The State failed to prove
that Edmond was the perpetrator of the petit theft, only that she was there. This
not enough to prove the essential elements of the crime, and it certainly was not
enough to rebut her reasonable hypothesis of innocence. The trial court erred in
denying Edmond’s repeated motions for judgment of acquittal.
15CONCLUSION
Based on the foregoing arguments and the authorities cited therein, Edmond
respectfully requests this Honorable Court reverse this cause with appropriate
directions.
-Respectfully submitted,
CAREY HAUGHWOUT
Public Defender
DEA ABRAMSCHMITT
Assistant Public Defender
Fifteenth Judicial Circuit of Florida
Florida Bar No. 084506
Attorney for Frontreva Jamelya Edmond
421 Third Street
West Palm Beach, Florida 33401
(561) 355-7600
appeals@pd15.state.fl.us
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of this Initial Brief has been furnished by
courier to Stephanie Toledo, Assistant State Attorney, Appellate oe 401
North Dixie Highway, West Palm Beach, Florida 33401, this a { day of
February, 2012.
Craddrearmacllaatd
Attorney for Frontreva Jemalya Edmond
16CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY the instant brief has been prepared with 14 point
Times New Roman type, in compliance with Fla. R. App. P. 9.210(a)(2).
‘Attomey for] Frontreva Jemalya Edmond
17
Preview
FRANTREVA JAMELYA EDMOND,) Appellant, Vv. STATE OF FLORIDA, Appellee. ANSWER BRIEF OF APPELLEE On Appeal from the County Court of the 15th Judicial Cire c In and For Palm Beach County, Florida zS* [Criminal Division] = ) ) ) ) ) ) ) ) ) IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 2011 AP900046A ~ L.T.. CASE NO. 2011MM007006A ORIGINAL 4 Ith Hd 12 8342102 qa CAREY HAUGHWOUT Public Defender DEA ABRAMSCHMITT Assistant Public Defender Florida Bar No. 084506 Attorney for Frantreva Jamelya Edmond The Criminal Justice Building 421 Third Street West Palm Beach, Florida 33401-4203 (561) 355-7600 appeals@pd15.state.fl.usCERTIFICATE OF INTERESTED PERSONS Counsel for Appellant, Frantreva Jamelya Edmond, certifies that the following persons and/or entities have or may have an interest in the outcome of this case. Dea Abramschmitt, Assistant Public Defender 15th Judicial Circuit (Counsel for Appellant) The Honorable Mark T. Eissey Circuit Court Judge, Fifteenth Judicial Circuit (Trial Judge) Frantreva Jamelya Edmond (Appellant/Defendant) The Honorable Carey Haughwout Public Defender, Fifteenth Judicial Circuit By: Ashley Zuckerman & Rina Kundalkar (Trial Counsel for Appellant) The Honorable Michael McAuliffe State Attorney, Fifteenth Judicial Circuit By: Andriana Lopez & Jeffrey Vivo (Trial Counsel for Appellee) Stephanie Assistant State Attorney Office of the State Attorney (Counsel for Appellee)TABLE OF CONTENTS CONTENTS PAGE CERTIFICATE OF INTERESTED PERSONS... i AUTHORITIES CITED... ccesesessssseeseseesenesesseneneeeenereesenenensessnsessenereneneenensntsseenses iii PRELIMINARY STATEMENT......ccccsesscsssssesssesseseseseseesensssssensneseessneesasansnsnsenensarens 1 STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS ......ccecscescessessessesessesseseessseessseesssetesseesesersssneseesesees 3 SUMMARY OF THE ARGUMENT .......cccecsssssessessesesssnesesnessseescseessseeseeseanearenees 9 ARGUMENT THE TRIAL COURT ERRED IN DENYING EDMOND’S MOTIONS FOR JUDGMENT OF ACQUITTAL BECAUSE THE STATE’S PURELY CIRCUMSTANTIAL CASE-IN-CHIEF DID NOT PROVE A PRIMA FACIE CASE, AND THE STATE FAILED TO REBUT EDMOND’S REASONABLE HYPOTHESIS OF INNOCENCE. .........ccccseesesessesessesessseeneseesees 10 CONCLUSION ...eececesssssssesssscsesessescsesesssessssesescseseesssssssesnsnsasassssesessesesasssseeesseeeesess 16 CERTIFICATE OF SERVICE .0...cccccssssssssessssssessecesescesessnsnessssseseseesenensassnsnsarensaesees 16 CERTIFICATE OF COMPLIANCE ..........sc:ccessesseseesesssesessseeseseeseeseseseesesseaneaneeness 17 iiAUTHORITIES CITED CASES PAGE(S) D.W. v. State, 702 So. 2d 288 (Fla. 4th DCA 1997) ..cscescesesessesesessesesessesssssssssesnesesseseseesereesesssseseensassseseseeeaees 13 LY.D. v. State, 711 So. 2d 202 (Fla. 2d DCA 1998) oo .ceeeeeeseeceeeeseeeetssessestestesesteesnesesesesisecseacsasensnesneeeeesneesseeea 15 LR. v. State, 671 So. 2d 278 (Fla. 2d DCA 1996) ....ceccccsscessesseseesssteseessseeseseesessesnessanessanesesressessseesssenesnsanensanees 10 Jackson v. State, 736 So. 2d 77 (Fla. 4th DCA 1999) oo. eeeneeeesereeeseeseesnesneessanensesseeseseeseeseesessnssssneensenses 10 MLP.W. v. State, 702 So. 2d 591 (Fla. 2d DCA 1997) .iscsccessscssesesresesssssesssssseseseetessseseesenenesessseseesererseseseneee 10, 12, 13 P.R. v. State, 389 So. 2d 1078 (Fla. 3d DCA 1980)... we l4 State v. Law, 559 So. 2d 187 (Fla. 1989)... eeeeseeseseseecsesscesessesssssessesnsesessssssaseesesseeseseessenseenessesseessenseasenneeneesee 11 State v. Williams, 742 So. 2d 509 (Fla. Ist DCA 1999)... LO FLORIDA STATUTES Section 812.014 vceccccscsscccsesessssssnsssessssecsesssssssssscscsssessssesessessseseseeseseesssescasesees 11 FLORIDA STANDARD JURY INSTRUCTIONS 14.1, Criminal Cases......cescssesesecsesesseeeseeseseseeeeeereesesrensesesessasetersensereneasesee bb iiiPRELIMINARY STATEMENT Appellant, Frantreva Jamelya Edmond, was the defendant and the State was the prosecution in the County Court Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. In the brief, the parties will be referred to as Edmond and State, respectively. The following symbols will be used: “RY -- Record on Appeal “Tv? Trial and Hearing Transcripts.STATEMENT OF THE CASE Appellant, Edmond, was charged with petit theft for events occurring on April 26, 2011. (R. 19) Edmond was specifically charged with taking a styling iron, and/or a sippy cup, and/or a satin wrap from Wal-Mart. At the conclusion of a jury trial, Edmond was found guilty as charged. -(R. 21; T. 218) The trial court adjudicated Edmond guilty and fined her $500 in fines and court costs. (T. 237; R. 22-23) Defense’s repeated motions for judgment of acquittal and judgment notwithstanding the verdict were denied. (R. 46-49; T. 136-47, 171-73, 222-25, 235-36, 252)STATEMENT OF THE FACTS The State’s sole witness was loss prevention officer, John Smelzer. Smelzer worked for the Wal-Mart at Belvedere and 441. (T. 106, 108) Smelzer testified _ that he watches numerous monitors covering about 300 cameras in the store. He said he had a joy stick which could rotate cameras-and zoom in and out. (T. 106- 07) Once he spotted someone concealing something, he keeps watch on the person to see whether they pay at the front or tries to exit the store without paying. Smelzer testified that he saw someone in the store, who was later identified as Edmond. Smelzer identified Edmond in court, although he admitted the only way he identified her was because she sat between the two defense attorney’s at the defense table. (T. 117-18) Also, he had looked at some photos he had of her, apparently taken at the Wal-Mart. (T. 118) However, these photos were never presented in court nor moved into evidence. (T. 127, 131) Additionally, in his deposition, Smelzer said the only thing he could say as far as a description of Edmond was that she was a black female. (T. 117) Smelzer testified that he saw two black women selecting stuff off the shelves and placing the items into empty Wal-Mart bags in a cart. (T. 110) Smelzer was permitted, without objection, to testify that this was how shoplifters usually He said he saw the women take some hair items, a curling iron, ladies socks and maybe a towel. He did not seem very sure of the last two items. (T. 111) SmelzerSmelzer said that the women did purchase some of the items in their cart, but not things they put into the empty bags. Smelzer claimed that he watched the two women continuously. He said the two women had one cart between them and stood close to each other. Wal-Mart had had a video of all this, but someone broke. into their store and stole their DVR players and the video was lost. (T. 113) On cross, Smelzer again said that some of the items in the women’s cart were paid for. He did not differentiate which items were paid for and which ones were not. (T. 114) On redirect, Smelzer said that the same woman he saw put items in the bag was the same woman as the one detained. (T. 119) However, he did not say whether this was Edmond or the other woman. The State rested immediately after Smelzer’s testimony. (T. 136) Defense moved for judgment of acquittal arguing that the State failed to prove a prima facie case because it failed to prove that Edmond was the person who actually took the stolen items. Defense pointed out that Smelzer continuously and exclusively used the words “they” and “their” when referring to the shoplifters. Smelzer never identified Edmond as the person he saw put items into the shopping bag. He only talked about two black women. Additionally, Smelzer gave no testimony about the theft of a sippy cup or satin wrap or gum, as alleged in the Information. (T. 136- 37)The State countered that Smelzer stated that he saw both women putting things in the bag. (T. 138) The trial court countered that even if both women were placing items in the bag, but then some items were paid for and others were not and there was no testimony as to what was what, how did this prove the state’s case? (T. 139) There was no identification of what-was paid for and what was not. (T. 140) Defense said there was no testimony that it was Edmond who put the curling iron in a bag. There was also no evidence that the women were acting in concert. This was a purely circumstantial case, said defense counsel. The State countered that both women were standing by the same cart. The trial court said, but there was no testimony as to what items were placed in the bag and by whom. (T. 141) The State insisted that Smelzer testified that the curling or styling iron was one of the items that were not paid for. Defense argued that Smelzer said he could not recall exactly where the women were standing. Also, Smelzer could only identify Edmond because she was sitting at the defense table. Smelzer gave no testimony that it was actually Edmond he saw putting certain items in the shopping bag in the cart. (T. 144) The trial court agreed that Smelzer only used the word “they” when describing what he saw. The State argued that both women knowingly took items, but defense said there was no evidence that Edmond knew some items were not for. The trial court asked the prosecutor what proof did the State have thatherself, placed the styling iron in the bag or concealed it? Or that Edmond did anything, as opposed to the other black female? (T. 145) When the State said that the two women were acting in concert, so they could presume that Edmond could see the other woman putting items inside the empty bags, the trial court said that was a real leap or stretch, as no one had testified that Edmond was even looking at the cart when ‘the other woman placed things into the bags. Edmond could have had her back turned while the other woman was putting things in the bag. (T. 145-46) There was no testimony as to what was placed in the cart versus what was placed into the bags. (T. 146) The trial court noted that it was the State’s burden to prove the charged crime. (T. 147) The trial court then reserved ruling on the JOA motion. Defense called Shawonda Milian, the woman who had been with Edmond at the Wal-Mart. (T. 157) Milian is Edmond’s niece. (T. 167) On direct, Milian testified that she took some items from the Wal-Mart that day. (T. 157) She said she put the items in a Wal-Mart bag. On cross examination, Milian said that the items she took were a motion perm, a flat iron, a hair wrap, some gum, socks, a towel, and a sippy cup. (T. 158, 159-60) When they first arrived at Wal-Mart, Edmond went to the grocery part of the store while Milian got two empty Wal- bags to conceal things in. (T. 158) Milian testified that Edmond never put anything into the bags. It was all her. (T. 159) Milian said she never saw EdmondEdmond place anything in the bags. (T. 166) The only things Edmond put in the cart were items that Edmond purchased. (T. 167) After Milian’s testimony, defense renewed its motion for judgment of acquittal, making the same arguments as before. The trial court still reserved ruling on the motion. (T. 171-73) The jury came back with a verdict of guilty as charged, and Edmond renewed her motion for judgment of acquittal. (T. 218, 222-23) Defense now argued that the State’s case was entirely circumstantial and it failed to present anything to rebut Edmond’s reasonable hypothesis of innocence. (T. 223) Additionally, Edmond was never identified as the person who placed any items in the shopping bags, and there was no differentiation between the paid-for and un- paid-for items. (T. 225) Edmond’s hypothesis of innocence was that she was merely there and had no idea what her niece was doing. (T. 224) The trial court decided it needed to play back Smelzer’s testimony. The trial court heard Smelzer say, “What I saw was them selecting stuff off the shelf and placing it in empty Wal-Mart bags which were in the cart, the shopping cart. (T. 232) Then, “I saw them select items off the shelf, and they actually had empty Wal-Mart bags that they were putting the items into which, you know, was inside shopping cart.” (T. 233) Smelzer said that the women did pay for the items in the cart, but not the stuff in the shopping bags. (T. 234) There was no testimony as towhich stuff was paid for and which was not. The trial court denied the motion for JOA. Defense filed a written motion for judgment of acquittal wherein it argued again that the State’s case was purely circumstantial, with the only witness testifying to “they” the entire time. (T. 246) The defense witness testified that she was the only person putting items into the shopping bags and that Edmond had nothing to do with the stolen items, and the State presented no evidence whatsoever to rebut Edmond’s reasonable hypothesis of innocence. (T. 246-47) The trial court, calling it a “close call,” again denied the motion. (T. 252)SUMMARY OF THE ARGUMENT This court must reverse the trial court’s denial of Edmond’s repeated motions for judgment of acquittal because the State utterly failed to establish a prima facie case of petit theft as to Edmond. Their sole witness could not testify that it was Edmond, and not her niece, Milian, who committed the theft. All Smelzer testified to was that he saw two black women putting items in a cart and in a shopping bag inside the cart. He could not say who put things into the empty shopping bags, nor which items were placed in the bag. He testified that some of the merchandise was actually purchased at the check-out counter, but some were not - but there was no testimony as to what was paid for and what was not. There was also no evidence as to which woman paid for what. Smelzer’s testimony was completely inadequate to establish the necessary elements to convict Edmond of petit tHaftthermore, Edmond presented a reasonable hypothesis of innocence in that the woman who was with her that day at Wal-Mart, her niece, testified for defense that she, and she alone, put items in the shopping bag and did not pay for them. Milian stated that Edmond had no knowledge that she was doing this, nor did she participate in the theft. The State failed to refute or rebut her reasonable hypothesis of innocence in its entirely circumstantial case. Thus, the trial court was obliged to grant defense’s motion for judgment of acquittal. It reversibly erred when it failed to do so.ARGUMENT THE TRIAL COURT ERRED IN DENYING EDMOND’S MOTIONS FOR JUDGMENT OF ACQUITTAL BECAUSE THE STATE’S PURELY CIRCUMSTANTIAL CASE-IN-CHIEF DID NOT PROVE A PRIMA FACIE CASE, AND THE STATE FAILED TO REBUT EDMOND’S es HYPOTHESIS OF INNOCENCE. The standard of appellate review on a motion for judgment of acquittal is de novo. State v. Williams, 742 So. 2d 509 (Fla. 1st DCA 1999) ("We have de novo review of the record to determine whether sufficient evidence supports the jury's verdict). Our District Court has written: A special standard of review of the sufficiency of the evidence applies when a conviction is wholly based on circumstantial evidence. . . Jackson v. State, 736 So. 2d 77, 80 (Fla. 4th DCA 1999), “Regardless of how strongly the circumstantial evidence suggests guilt, a court may not sustain a conviction unless the evidence is inconsistent with any hypothesis of innocence.” M.P.W. v. State, 702 So. 2d 591, 592 (Fla. 2d DCA 1997), quoting LR. v. State, 671 So. 2d 278 (Fla. 2d DCA 1996). The State is required to prove each and every element of the offense beyond a reasonable M.P.W., 702 So. 2d at 592. The trial court must grant a judgment of acquittal if State “fails to present evidence from which the jury can exclude every reasonable 10hypothesis except that of guilt.” Id., quoting State v. Law, 559 So. 2d 187, 188 (Fla. 1989). To prove Edmond guilty of petit theft, the state was required to prove that Edmond knowingly, unlawfully obtained or used Wal-Mart’s property with the intent to deprive Wal-Mart of their right to the property or its. use.. § 812.014, Florida Statutes; § 14.1, Fla. Standard Jury Instructions in Criminal Cases. Here, the circumstantial evidence was not even that strong, plus the State failed to rebut Edmond’s reasonable hypothesis of innocence. The State had one witness, the loss prevention officer, who could only identify the women he saw that day as “two black females.” The only way he could identify Edmond in court was because she was sitting at the defense table between the two defense attorneys. Smelzer never identified Edmond individually. His whole testimony was about “they” “them” and “their.” He could not truthfully testify that he saw Edmond, herself, put aie in the shopping bags, or whether the things she might have put in the cart were paid for or not. The items which were allegedly stolen were not differentiated from those purchased, which Smelzer said were in the cart but not in the shopping bags. In M.P.W., the juvenile argued that he should not have been adjudicated a delinquent where the State failed to present sufficient evidence to overcome his reasonable hypothesis of innocence. M.P.W., 702 So. 2d at 591-92. The charge 11there was grand theft. While the victim/parents were out of town, their sons had a bang-up party with somewhere between 50 to 100 young kids attending. During the party, jewelry was stolen from the home. Id. at 592. Several kids, including M.P.W., were charged with grand theft of the jewelry. There, like the instant case, the state presented no direct evidence that M.P.W. committed the. theft.. The state put on two witnesses, a victim and a co-defendant. The co-defendant admitted his own involvement of the theft. Another kid from the party, and a perpetrator himself, testified for defense, as did the defendant. Id. All the witnesses agreed that M.P.W. was present at the party and knew about the theft, plus he handled at least one piece of the stolen jewelry, but that was it. M.P.W. admitted that he was handed a piece of the stolen jewelry, and he looked at it and returned it. He denied taking any of it or ever having the intention of taking or keeping any of the jewelry. Id. None of the witnesses testified that M.P.W. took any of the jewelry. The only reason the judge in M.P.W. did not the motion for judgment of acquittal was because he misheard the co-defendant when the co-defendant testified that he overheard M.P.W. say that the jewelry from the victim’s bedroom. For some reason, the judge thought the co-defendant said that M.P.V. had admitted taking the jewelry from the bedroom. But a review of the disputed testimony showed that the judge was mistaken. Id. Noting that 12“mere presence of a defendant at a crime scene is insufficient to establish guilt” the appellate court reversed. Id. at 592-93. In the instant case, all the State proved with Smelzer’s testimony was that Edmond was with the co-defendant when certain items were placed in the shopping cart and then not paid for at check out. He could not and did not testify that Edmond, herself, put any of the items in the bag. He did not testify as to what items she purchased. He did not testify that any unpurchased items found in the Wal-Mart shopping bags were placed there by Edmond. In fact, Edmond’s niece, Milian, baldly stated that she and she alone committed the petit theft and that Edmond had no knowledge she was doing it. Milian specifically denied Edmond having any part in the theft of items from the Wal-Mart. The State presented no evidence to contradict Edmond’s reasonable hypothesis of innocence. In D.W. v. State, the Fourth District found that the juvenile’s conviction based solely on receipts from the time she worked as a sales clerk were insufficient to negate her hypothesis of innocence. D.W. v. State, 702 So, 2d 288 (Fla. 4th DCA 1997). D.W. was adjudicated delinquent for grand theft and appealed. The state presented receipts of twelve transactions at the store D.W. worked as a sales clerk. D.W. testified that she probably completed well 1,000 transactions during the time she worked there. Her hypothesis of innocence was that the errors were probably due to either computer glitches or her own 13inadvertent mistakes, or even customer error. Id. The state did not present any testimony or other evidence rebutting D.W.’s theory of innocence. Finding that the state’s evidence was insufficient to support D.W.’s adjudication of delinquency, Fourth District Court reversed. Id. Here, Edmond had a reasonable hypothesis of innocence which also was not rebutted by the State. Edmond’s defense witness, Milian, flat out stated that Edmond had nothing, whatsoever, to do with her own theft at the Wal-Mart. Certainly Smelzer’s testimony did not refute Milian’s. In a case very similar to the instant one, a store’s security officer observed P.R. and three other women as they selected some merchandise without seeming to regard size or price, then placed the items in a shopping cart. P.R. v. State, 389 So. 2d 1078, 1079 (Fla. 3d DCA 1980). The women then took the cart to the cash register to check out. The cashier checked through more merchandise than she actually rang up. The register tape revealed that a $40 payment had been tendered with $14.10 in change. The tape total was $25.86 for merchandise worth in excess of $200.00. Id. at 1079. However, the evidence did not reveal whether P.R. was aware that not all the items were rung up or that the payment only covered part of merchandise. Also, there was no evidence presented which connected P.R. with any scheme or plan to steal the merchandise. The state failed to controvert P.R.’s 14testimony that, although she accompanied and assisted one of the girls, she did not notice the cashier’s actions or the amount paid. Id. The Third District wrote that the state had tried to prove P.R.’s criminal intent by circumstantial evidence, but such evidence must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence. :Id. at 1079. The appellate court found that standard had not been met, and reversed. Like P.R., Edmond was seen placing merchandise in a shopping cart along with another person. The State, here, did not establish Edmond’s criminal intent any more than it did in P.R. All that the State showed in the instant case was that two black women were observed placing items in a cart, with some of the items going into empty shopping bags. No testimony distinguished what items were in the bags versus only in the cart, or which woman put them in either place. The only thing the State actually proved was Edmond’s presence at the Wal-Mart. “Mere presence at the scene of a crime, knowledge of the crime, and flight are insufficient to justify a conviction.” LY.D. v. State, 711 So. 2d 202, 203 (Fla. 2d DCA 1998). The State failed to prove that Edmond was the perpetrator of the petit theft, only that she was there. This not enough to prove the essential elements of the crime, and it certainly was not enough to rebut her reasonable hypothesis of innocence. The trial court erred in denying Edmond’s repeated motions for judgment of acquittal. 15CONCLUSION Based on the foregoing arguments and the authorities cited therein, Edmond respectfully requests this Honorable Court reverse this cause with appropriate directions. -Respectfully submitted, CAREY HAUGHWOUT Public Defender DEA ABRAMSCHMITT Assistant Public Defender Fifteenth Judicial Circuit of Florida Florida Bar No. 084506 Attorney for Frontreva Jamelya Edmond 421 Third Street West Palm Beach, Florida 33401 (561) 355-7600 appeals@pd15.state.fl.us CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of this Initial Brief has been furnished by courier to Stephanie Toledo, Assistant State Attorney, Appellate oe 401 North Dixie Highway, West Palm Beach, Florida 33401, this a { day of February, 2012. Craddrearmacllaatd Attorney for Frontreva Jemalya Edmond 16CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY the instant brief has been prepared with 14 point Times New Roman type, in compliance with Fla. R. App. P. 9.210(a)(2). ‘Attomey for] Frontreva Jemalya Edmond 17