The No Contest Plea, Probation and Routine Searches of Computers and Other Devices

This post examines a recent opinion from the Court of Appeals – Sixth District, California: People v. Ermin, 2017 WL 2929356 (2017). The court begins the opinion by explaining that

Defendant Vladimir Ermin pleaded no contest to being an accessory. (Penal Code, § 32.) He was placed on probation for three years with conditions that included the following: `Your computer and all other electronic devices, including but not limited to cellular telephones, laptops, computers, or notepads, shall be subject to forensic analysis search for information reasonably related to criminal activity.’ Defendant was also required to `consent to and provide all passwords necessary to access and search said electronic devices to Probation and law enforcement.’

On appeal, defendant challenges the electronic devices search condition, claiming it is unconstitutionally overbroad, unconstitutionally vague, and invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent ). Defendant also contends the trial court improperly imposed a criminal justice administration fee of $259.50 (see Gov. Code, §§ 29950, 29550.1, & 29550.2), because the trial court did not determine whether that amount exceeded the actual administrative costs of his booking process. For reasons that we will explain, we will affirm the order of probation.

People v. Ermin, supra.

The Court of Appeals then explained why, and how, this prosecution arose:

On December 7, 2015, defendant was arrested. He was found to be in possession of marijuana, and he consented to a search of his cell phone. During the search of defendant's cell phone, a deputy found photographs and videos of `packaged plastic bags and plastic containers,’ similar to those found on defendant's person, along with several text messages indicating defendant was connected to sales of marijuana.

Defendant was charged with possession for sale of marijuana (Health & Saf. Code, § 11359; count 1) and transportation and distribution of marijuana (Health & Saf. Code, § 11360,subd. (a); count 2). Pursuant to a plea agreement, the prosecution amended the complaint, adding a charge of being an accessory (Penal Code, § 32; count 3), and the trial court dismissed counts 1 and 2 after defendant pleaded no contest to count 3.

Prior to sentencing, the probation officer's report recommended the following probation condition: `The defendant's computer and all other electronic devices (including but not limited to cellular telephones, laptop computers or notepads) shall be subject to Forensic Analysis search.’ The probation officer's report also recommended defendant be ordered to pay a $259.50 criminal justice administration fee, payable to the County of Santa Clara. The probation report cited Government Code sections 29550, 29550.1, and 29550.2 as the basis for that fee.

People v. Ermin, supra.

The Court of Appeal goes on to explain that, at Ermin’s sentencing hearing, his

trial counsel argued that the condition regarding electronic searches was `too broad' under Lent and would violate defendant's right to privacy. Defendant's trial counsel noted that `people's bank records, health records, personal information, and journal entries are now all being stored on cell phones as well as laptops and notepads.’

The trial court agreed that the proposed condition `does read rather broadly’ and suggested the condition could be modified to add the following clause: `for the purpose of discovering information reasonably related to criminal activity.’

Defendant's trial counsel asked the trial court to further limit the scope of the condition to permit searches of defendant's cell phone only. In addition, defendant's trial counsel argued that permitting a `forensic analysis search’ would give an officer access to the `entire device,’ including hard drives and personal information.

People v. Ermin, supra.

The opinion goes on to explain that the

prosecutor argued that the condition should not be restricted to cell phones only, noting that electronic communication is `easily transferable’ between devices. The prosecutor also argued that forensic analysis was often the `only . . . way’ for officers to get the information they need from an electronic device.

The trial court overruled the defense objection to the `forensic analysis’ language and indicated the condition would read as follows: `The defendant's computer and all other electronic devices, including but not limited to cellular telephones, laptops, computers, or notepads, shall be subject to forensic analysis search for information reasonably related to criminal activity.’

People v. Ermin, supra.

The Court goes on to explain that the

probation officer requested that the trial court add an order that defendant provide all passwords necessary to access or search his electronic devices. Defendant's trial counsel objected `under the same reasoning.’ The trial court found the proposed additional condition `reasonable’ and ordered defendant to `provide all passwords necessary to access or search said electronic devices.’

The trial court then suspended imposition of sentence, placed defendant on formal probation for three years, and imposed various additional probation conditions. Finally, the trial court ordered defendant to pay various fees and fines, including a $259.50 criminal justice administration fee payable to the County of Santa Clara `under the Government Code.’

People v. Ermin, supra.

Having outlined what had happened to this point in the litigation, the Court of Appeals began its analysis of the legal issues in the case, beginning with Ermin’s “overbreadth” argument. People v. Ermin, supra. As the opinion explains, Ermin argued that

the electronic devices search condition is unconstitutionally overbroad because it infringes on his privacy interests and violates his Fourth Amendment rights. He contends that the trial court could have imposed a more narrowly tailored condition, i.e., one that permits searches only of his cell phone, and permits searches for only information `likely to yield evidence of drug use, other criminal activity or noncompliance with probation conditions.’

We review the constitutionality of a probation condition de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 888–889 (Sheena K.).) `A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]’ (Id. at p. 890.)

Defendant asserts that his overbreadth claim is supported by the reasoning of Riley v. California (2014)[134 S.Ct. 2473] (Riley), in which the United States Supreme Court held that the warrantless search of a suspect's cell phone implicated and violated the suspect's Fourth Amendment rights. (Id., 134 S.Ct. at p. 2493.) In so holding, the court explained that modern cell phones, which may have the capacity to be used as mini-computers, can potentially contain sensitive information about a number of areas of a person's life. (Id. at pp. 2488–2489.) The court emphasized, however, that its holding was only that cell phone data is subject to Fourth Amendment protection, `not that the information on a cell phone is immune from search.’ (Id. at p. 2493.)

People v. Ermin, supra.

The Court of Appeals went on to explain that, since

Riley did not involve probation conditions, it is inapposite. Unlike the defendant in Riley, who at the time of the search had not been convicted of a crime and was still protected by the presumption of innocence, defendant is a probationer. `Inherent in the very nature of probation is that probationers `do not enjoy `the absolute liberty to which every citizen is entitled. [Citations.] Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.’ (United States v. Knights (2001) 534 U.S. 112, 119.)

This court rejected an overbreadth argument in People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski ), where the challenged probation condition required the defendant to “`provide all passwords to any social media sites, including Facebook, Instagram and Mocospace and to submit those sites to search at any time without a warrant by any peace officer.”’ (Id. at p. 1172.) The Ebertwoski defendant was a member of a criminal street gang who had promoted his gang on social media. This court rejected the defendant's claim that the probation condition was `not narrowly tailored to [its] purpose so as to limit [its] impact on his constitutional rights to privacy, speech, and association.’ (Id. at p. 1175.) This court explained that the state's interest in preventing the defendant from continuing to associate with gangs and participate in gang activities, which was served by the probation condition, outweighed the minimal invasion of his privacy. (Ibid.)

In People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton ), a different panel of this court distinguished Ebertowski and found unconstitutionally overbroad a probation condition requiring the defendant's electronic devices to be `”subject to forensic analysis search for material prohibited by law.”’ (Appleton, supra, at p. 721.) In Appleton, the defendant was convicted of false imprisonment based on an incident that occurred about a year after he used a social media website to meet the minor victim. (Id. at p. 719–720.) The Appleton panel held that the electronic devices search condition was overbroad because it `would allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential for future criminality.’ (Id. at p. 727.) The Appleton panel concluded that `the state's interest here—monitoring whether defendant uses social media to contact minors for unlawful purposes—could be served through narrower means,’ such as by imposing `the narrower condition approved in Ebertowski, whereby defendant must provide his social media accounts and passwords to his probation officer for monitoring.’ (Ibid., fn. omitted.)

People v. Ermin, supra

The Court of Appeals goes on to explain that,

[h]ere, the search condition regarding defendant's electronic devices properly serves the state's interest in preventing defendant from using electronic devices to engage in criminal activity such as the sale of narcotics. Indeed, defendant recognizes that some intrusion on his privacy rights would be justified, but he asserts that a more narrowly tailored condition should have been imposed.

As noted above, defendant claims that the condition is overbroad because it permits searches of all his electronic devices and not just his cell phone. As the prosecutor noted below, electronic information is `easily transferable’ between devices. By allowing the search of other electronic devices, the condition ensures that defendant is not engaging in narcotics sales by the use of any electronic device. If the condition were limited to cell phones, defendant could simply use another electronic device, such as a laptop or tablet, to engage in criminal activity, and the probation officer would not be able to effectively monitor defendant's probation.

Defendant also claims that the condition is overbroad because it permits searches for more than just information `likely to yield evidence of drug use, other criminal activity or noncompliance with probation conditions.’ However, the trial court did limit the scope of the condition to provide that defendant's electronic devices could only be searched for `information reasonably related to criminal activity.’ Thus, the condition is narrowly tailored to further the state's interest of preventing the defendant from using his electronic devices to conduct future criminal activity and it does not `allow for searches of vast amounts of personal information unrelated to defendant's criminal conduct or his potential for future criminality.’ (Cf. Appleton, supra, 245 Cal.App.4th at p. 727.)

We conclude that the challenged probation condition is not overbroad.

People v. Ermin, supra.

Ermin also argued that the probation condition at issue in this case was “unconstitutionally vague, because it does not clearly provide notice of what he is forbidden from doing and is not specific enough to inform a probation officer what to search for or how to conduct a search.” People v. Ermin, supra. You can read more about the vagueness doctrine, which is what Ermin was relying on, in this Wikipedia entry.

The Court of Appeals began its analysis of this argument by explaining that

[t]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions.’ (Sheena K., supra, 40 Cal.4th at p. 890.) Our examination of the challenged condition is `guided by the principles that ‘abstract legal commands must be applied in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the language used must have reasonable specificity.' (Ibid.) In sum, the probation condition must be ‘sufficiently precise for the probationer to know what is required of him [or her], and for the court to determine whether the condition has been violated.’ (Ibid.)

In In re Malik J. (2015) 240 Cal.App.4th 896, the appellate court considered whether a probation condition requiring the minor to `provide all passwords to any electronic devices, including cell phones, computers or [notepads], within [the probationer's] custody or control’ was unconstitutionally vague or overbroad. (Id. at p. 900.) The minor argued that the phrase `any electronic devices'  could be interpreted to include Kindles, Playstations, iPods, the codes to his car, home security system, or even his ATM card. (Id.at p. 904.) However, the appellate court concluded that the imposed search condition was in response to the trial court's concern that the minor would use items such as his cell phone to coordinate with other offenders. Additionally, the minor had previously robbed people of their iPhones. (Id. at pp. 904–905.) Therefore, the appellate court concluded that it was reasonably clear that the condition was meant to encompass `similar electronic devices within [minor's] custody and control that might be stolen property, and not, as [minor] conjectures, to authorize a search of his Kindle to see what books he is reading or require him to turn over his ATM password.’ (Id. at p. 905.)

People v. Ermin, supra.

The Court of Appeals went on to explain that

[h]ere, defendant appears to be arguing that the condition should have been more specific as to what type of information could be `reasonably related to criminal activity.’ However, as noted above, the language used in a probation condition must only have `”“reasonable specificity,”’  not “‘mathematical certainty.’” (Sheena K., supra, 40 Cal.4th at p. 890.) A probation condition is sufficiently specific “`if any reasonable and practical construction can be given its language or if its terms may be made reasonably certain by reference to other definable sources.”’ (People v. Lopez (1998) 66 Cal.App.4th 615, 630.) The condition here explicitly permits a search of defendant's electronic devices for evidence that he is conducting narcotics sales or engaging in other criminal activity and thus implicitly does not permit a search for other purposes. The condition thus provides defendant with fair warning and prevents arbitrary searches of his electronic devices for information not reasonably related to criminal activity. In sum, the challenged condition is not unconstitutionally vague.

People v. Ermin, supra.

For these and other reasons, the Court of Appeal “affirmed” the order of probation. People v. Ermin, supra. 

Little Caesar’s Pizza, First-degree Robbery and the Facebook Photos

This post examines a recent opinion from the Missouri Courtof Appeals – Western District: State v. McElroy, 2017 WL 2332760 (2017). The court begins the opinion by explaining that “Jerome McElroy appeals the trial court's judgment, following a jury trial, convicting him of first-degree robbery (§ 569.020, [Revised Statutes of Missouri]) and armed criminal action (§ 571.015).” State v. McElroy, supra.

The Court of Appeals goes on to explain how, and why, the prosecution arose:

The evidence at McElroy's trial showed that two men entered a Little Caesar's pizza restaurant on May 24, 2014, while manager April Bell was counting the money in a cash register. Bell saw that one of the men was carrying a gun, so she quickly closed the register. Bell testified that she could see both men's faces. She stated that the gunman, whom she later identified as McElroy, had `a little bit’ of facial hair, and she particularly noticed `his eyes and his size.’

Bell told the jury that McElroy jumped over the counter, put a gun to the back of her head, and told her to open the register. Bell complied. McElroy then pulled her to the other register, demanded the money from it, and threatened to shove the gun into her head harder unless she gave him the money immediately. After Bell opened the second register, McElroy ordered her to open the safe. She told him that it was on a time lock and she could not open it. McElroy jumped back over the counter, and the two men ran out the door. Bell called the police.

Detective Anthony Castelletto reviewed the store's surveillance video.³ He saw that the robbers were not wearing gloves and had touched certain areas that an ordinary customer would not touch. Castelletto asked a crime scene technician to dust those areas for fingerprints. Four of the recovered prints were matched to McElroy: one was lifted from the counter between the cash registers; the other three were taken from the glass on the upper portion of a door.

The next day, police arrested Charles Harris, who was riding in the passenger seat of a vehicle that matched the description of one used in the robbery. The police received information from Harris about a suspect who went by `JJ.’ Officer Johnathon Dawdy searched social media accounts and found a Facebook page for someone named `JJ da guy.’ He compared a picture of McElroy to pictures on the Facebook page and confirmed that McElroy was `JJ da guy.’ The photos on the Facebook page showed a tattoo that said `RIP Kevin’ and covered nearly the entire top of McElroy's right hand. Dawdy testified that he had seen the same tattoo on one of the robbers in the Little Caesar's surveillance video. Detective Castelletto also concluded that the same tattoo was depicted in both the video and the Facebook photos.

State v. McElroy, supra.

The Court of Appeals also notes that,

[u]pon arresting McElroy, Officer Dawdy could see that he was the same person identified on Facebook as `JJ da guy.’ Dawdy also noticed that McElroy had the same tattoo on his right hand that he had seen on the Facebook page and on the surveillance video.

April Bell identified both Harris and McElroy from photo line-ups. She identified McElroy as the gunman, and she stated at trial that she was absolutely sure of her identification. Bell also made an in-court identification of McElroy. She told the jury that there was no doubt in her mind that he was the man who held a gun to her head.

State v. McElroy, supra.

The Court of Appeals went on to explain that

McElroy did not present any evidence. During closing argument, defense counsel reminded the jurors of McElroy's `very large ornate and dark tattoo on his right hand’ that they had seen in one of the Facebook photos. She urged the jury to ask to see everything that had been admitted into evidence (which the jury did), and she proposed that the video and the stills from it would not show a tattoo on the gunman's hand. Counsel also asserted that, if Bell's identification of McElroy was wrong, then the State did not have any evidence.

The jury found McElroy guilty of first-degree robbery and armed criminal action. The court sentenced him to concurrent prison terms of twelve years and three years, respectively.

State v. McElroy, supra.

The Court of Appeals then took up the arguments McElroy made in appealing his conviction, beginning with this issue:

McElroy contends that the circuit court plainly erred in allowing evidence obtained from the Facebook page to be presented at trial and in permitting the State to elicit testimony about and argue that the Facebook profile of `JJ da Guy’ connected McElroy to Harris and to the Little Caesar's robbery, `because the ownership and identity of the Facebook page was not properly authenticated.’

At no point during the trial did McElroy's defense counsel dispute that the `JJ da guy’ Facebook page belonged to McElroy or that he was depicted in the photos on that page. In fact, during a bench conference on an unrelated motion in limine, defense counsel told the court that, as part of her trial strategy, she intended to elicit testimony about he Facebook page to discredit Harris's identification of the owner of that page as one of the robbers.

State v. McElroy, supra.

The opinion then explains that

[d]uring Officer Dawdy's testimony, he stated that, based on information from Harris about a suspect who went by the name `JJ,’ he discovered a Facebook page for a person named `JJ da guy.’ Dawdy told the jury that he then compared a photo of McElroy to photos posted on JJ da guy's Facebook page and determined that McElroy and JJ da guy were the same person.

When the State sought to admit those Facebook photos as State's Exhibits 13-15, defense counsel asked to approach the bench, and the following discussion ensued:

[Defense Counsel]: `Judge, I'm going to object to these pictures being introduced into evidence, because there is hearsay all over them. These are actually Facebook page, like stills that have been taken and printed off of the computer. I mean, there's writing on here. I haven't read everything, but it is not just a picture. So I'm going to object to the hearsay that is included in the photographs.’

THE COURT: `So you're okay with the photos, just not some of the words?’

[Defense Counsel]: `Right, right.’

The prosecutor offered to use other photos from the Facebook page that did not include any words, and defense counsel stated that that would resolve her objection. Officer Dawdy then identified State's Exhibits 17, 18, and 19 as photos of McElroy and of the tattoo on his right hand. Defense counsel stated, `No objection,’ when the photographs were offered into evidence. The court admitted the exhibits, and they were published to the jury.

State v. McElroy, supra.

Having explained how the issue of the Facebook photos arose, the Court of Appeals went on to explain that

[t]he prosecutor offered to use other photos from the Facebook page that did not include any words, and defense counsel stated that that would resolve her objection. Officer Dawdy then identified State's Exhibits 17, 18, and 19 as photos of McElroy and of the tattoo on his right hand. Defense counsel stated, `No objection,’ when the photographs were offered into evidence. The court admitted the exhibits, and they were published to the jury.

State v. McElroy, supra.

The Court of Appeals went on to explain that

[g]enerally, we review a trial court's admission of evidence for an abuse of discretion. State v. Blair, 443 S.W.3d 677, 682 (Mo. App. 2014). Where there was no objection to the admission of the evidence, our review, if any, is for plain error only. Id. citing State v. McFadden, 369 S.W.3d 727, 753 (Mo. en banc 2012)). Rule 30.20 authorizes this Court, in its discretion, to review `plain errors affecting substantial rights . . . when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.’ Here, McElroy concedes that he failed to preserve this claim and asks this Court to review it for plain error.

We decline to do so. McElroy has waived review of any claim of error related to the admission of this evidence. See State v. Johnson, 284 S.W.3d 561, 582 (Mo. banc 2009). Plain error review is waived when counsel has affirmatively acted in a manner that precludes a finding that the failure to object was due to `inadvertence or negligence.’ Id. `Plain error review does not apply when a party affirmatively states that it has no objection to evidence an opposing party is attempting to introduce or for a trial strategy reason.’ Id.; State v. Goers, 432 S.W.3d 276, 282 (Missouri Court of Appeals 2014) (a statement of `no objection’ when evidence is introduced `affirmatively waives’ plain error review of its admission). Here, defense counsel stated `no objection’ to the admission of the Facebook photographs, and she told the court that she intended to use testimony about the Facebook page as part of her trial strategy. Defense counsel's strategic decision not to object to the Facebook evidence and her affirmative statement that she had `no objection’ to the admission of the Facebook photographs constituted a waiver.

Accordingly, McElroy has waived his claim that the Facebook evidence was improperly admitted. In any event, this is not a case where we would exercise our discretion to conduct a plain error review.

We affirm the circuit court's judgment.

State v. McElroy, supra.

The Scrap Materials, Hearsay and Dealing in Stolen Property

This post examines a recent decision from the District Court of Appeals of Florida – Second District: North v. State, 2017 WL 2484944. The court begins by explaining that Shane North was “convicted in the Circuit Court, Polk County . . . of dealing in stolen property and he appealed. North v. State, supra.

The Court of Appeals goes on to explain that

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 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.

North v. State, supra.

The Court of Appeals then began its analysis of the issue in the case, explaining that

[g]enerally 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 (Florida Supreme Court 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 (Florida Supreme Court 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.

North v. State, supra.

The opinion goes on to explain that

[h]earsay, 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 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. 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 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

North v. State, supra.

The Court of Appeals then begins the process of articulating its ruling on the Circuit Court Judge’s barring North’s testimony at trial, explaining that

[t]o 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 (Florida Supreme Court 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 (Florida Supreme Court 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.

North v. State, supra.