Friday, June 24, 2016

The Boston University Library, Trespass and the MacBook

This post examines an opinion from the Appeals Court of Massachusetts:  Commonwealth v. Bermudez, 2016 WL 1618213 (2016). The court begins the opinion by explaining that
The defendant, Jonathan Bermudez, appeals  from his convictions of trespass, in violation of [Massachusetts General Laws] c. 266, § 120, and larceny over $250, in violation of [Massachusetts General Laws] c. 266, § 30(1). The defendant contends his convictions should be overturned for three main reasons. First, the defendant argues that the judge erred in denying his motion for a required finding of not guilty on the criminal trespass charge. Second, the defendant maintains that the judge erred in denying his motion for a required finding of not guilty on the larceny over $250 charge. Third, the defendant contends that the judge incorrectly instructed the jury on notice for the trespass charge. The convictions stem from the defendant taking a MacBook laptop that was unattended at Boston University's Mugar Library.
Commonwealth v. Bermudez, supra.  The court analyzed Bermudez’s arguments in the order set out above, beginning with the criminal trespass conviction.
It began that analysis by explaining that
[o]ur review of a motion for a required finding of not guilty requires us to ask `whether, viewing the evidence in a light most favorable to the Commonwealth, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120 (Supreme Judicial Court of Massachusetts 2010), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (Supreme Judicial Court of Massachusetts 1979). We only consider the `evidence introduced up to the time the Commonwealth rested its case.’ Commonwealth v. Rivera, 460 Mass. 139, 141 (Supreme Judicial Court of Massachusetts 2011). . . .
The defendant argues that the judge erred in denying his motion for a required finding of not guilty for trespass because the Commonwealth failed to prove beyond a reasonable doubt that he was given notice that he was not allowed on `any’ Boston University property. To convict the defendant of trespass, the Commonwealth must prove beyond a reasonable doubt that he `without right enter[ed] or remain[ed] in or upon [Boston University property] . . . after having been forbidden so to do by the person who has lawful control of said premises, whether directly or by notice posted thereon.' Massachusetts General Laws c. 266, § 120. At trial, Officer Robert McCarthy (Officer McCarthy), who had previously interacted with the defendant, answered affirmatively when asked, `[D]id you notify [the defendant] that he was not permitted to be on campus on the Boston University Campus or Boston University property?’ In the light most favorable to the Commonwealth, this testimony, if credited by the jury, was sufficient for the jury to find that direct notice was given to the defendant by a person with lawful control over the premises. See ibid. See also Commonwealth v. Molina, 454 Mass. 232, 240 (Supreme Judicial Court of Massachusetts 2009) (`Questions of credibility and weight of testimony are for the jury to decide’).
Commonwealth v. Bermudez, supra (emphasis in the original).
The Appeals Court then took up Bermudez’s larceny conviction, explaining that to
support a conviction of larceny under [Massachusetts General Laws] c. 266, § 30, the Commonwealth is required to prove the ‘unlawful taking and carrying away of the personal property of another with the specific intent to deprive the person of the property permanently.’ Commonwealth v. DiJohnson, 63 Mass. App. Ct. 855, 858 (Appeals Court of Massachusetts 2005), quoting from Commonwealth v. Donovan, 395 Mass. 20, 25–26 (Supreme Judicial Court of Massachusetts 1985). The Commonwealth must also prove, when the defendant is charged with larceny over $250, `that the value of the property in question exceed[s] $250.’ Commonwealth v. DiJohnson, supra. . . 
Commonwealth v. Bermudez, supra. For more on Massachusetts larceny law, see this site
The Appeals Court analyzed each issue, in the order outlined above.  As to intent, it noted that Bermudez
argues that the judge erred in denying his motion for a required finding of not guilty on the larceny over $250 charge because the Commonwealth failed to establish the requisite intent. `A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.’ Commonwealth v. Casale, 381 Mass. 167 (Supreme Judicial Court of Massachusetts 1980).
 Here, in the light most favorable to the Commonwealth, the Commonwealth introduced sufficient evidence of the defendant's intent to permanently deprive the owner of his MacBook. This included the defendant `scanning’ the library basement while he sat on the couch for over an hour before he walked over to a recently vacated desk, grabbed the unattended MacBook that was left on the desk, and put it in his backpack. See Commonwealth v. Balboni, 26 Mass. App. Ct. 750, 752 (Appeals Court of Massachusetts 1989) (`As to the element of intent, the circumstances testified to by the officer, particularly the defendant's actions and demeanor in surveying the store, . . . permitted the jury properly to infer that the defendant harbored an intent to steal the merchandise’). Further, when the defendant realized he was being followed by a group of students, he `shoved the laptop at the owner’ and took off running as soon as he exited the library. 
Commonwealth v. Bermudez, supra. 
Having found that the evidence presented at trial established the necessary intent, the court next took up the issue of intent.  It began that analysis by explaining that the
defendant argues that the judge erred in denying his motion for a required finding of not guilty on the larceny over $250 charge because the Commonwealth failed to establish the MacBook's value was over $250. In the crime of malicious destruction of property over $250, we have held that the `jury may apply its own “common sense” to [the] valuation issue.’ Commonwealth v. Muckle, 59 Mass.App.Ct. 631, 642–643 (Appeals Court of Massachusetts 2003). The jury, relying on its own common sense, in the light most favorable to the Commonwealth, could have found that the MacBook was worth more than $250 in its working condition. The judge also clearly instructed that the Commonwealth must prove beyond a reasonable doubt that the value of the MacBook was worth more than $250. See Commonwealth v. Helfant, 398 Mass. 214, 228 (Supreme Judicial Court of Massachusetts 1986) (`The judge's instructions were clear, and we must presume the jury followed them’).
Commonwealth v. Bermudez, supra. 
And in a footnote it appended after the quoted phrase “valuation issue” in the paragraph above, the court explained that the
judge's instruction to the jury provided, in relevant part: `If you determine the Commonwealth has proved beyond a reasonable doubt that the defendant is guilty of larceny, you must also go on to determine whether the laptop that was stolen was worth more than $250 or less than $250. You need to consider that question only if you find the defendant guilty so that I will know which range of sentence as the law permits in this case. So, if your verdict is guilty, you must also indicate on your verdict slip whether or not the Commonwealth has proved beyond a reasonable doubt that the property was worth more than $250. You may use your general knowledge in evaluating the value of (indiscernible) property. It is not required that you have any expert evidence of its value.’
Commonwealth v. Bermudez, supra. 
Regarding jury instructions and the role they play in a jury trial, as Wikipedia explains,
[u]nder the American judicial system, juries are often the trier of fact when they serve in a trial. In other words, it is their job to sort through disputed accounts presented in evidence. The judge decides questions of law, meaning he or she decides how the law applies to a given set of facts. The jury instructions provide something of a flow chart on what verdict jurors should deliver based on what they determine to be true. Put another way, `If you believe A (set of facts), you must find X (verdict). If you believe B (set of facts), you must find Y (verdict).’ Jury instructions can also serve an important role in guiding the jury how to consider certain evidence. Forty-eight states (Texas and West Virginia are the exceptions) have a model set of instructions, usually called `pattern jury instructions’, which provide the framework for the charge to the jury; sometimes, only names and circumstances have to be filled in for a particular case. Often they are much more complex, although certain elements frequently recur. For instance, if a criminal defendant chooses not to testify, the jury will often be instructed not to draw any negative conclusions from that decision. Many jurisdictions are now instructing jurors not to communicate about the case through social networking services like Facebook and Twitter. . . .
And that brings us to the third issue Bermudez raised on appeal, i.e., that “the judge incorrectly instructed the jury on notice for the trespass charge.” Commonwealth v. Bermudez, supra.  The opinion explains that Bermudez argued, on appeal, that
his conviction on trespass should be vacated because the jury were incorrectly instructed on notice. The portion of the jury instruction relied on by the defendant provides:

`[T]he testimony you've heard and are about to hear about the interaction which allegedly occurred on March 27, 2012 is for your consideration only to determine whether or not the Commonwealth can prove the element of notice in the trespass charge the defendant is facing here today.’

`You may not consider it for any other purpose. You may not consider it in any way in deciding whether the defendant is guilty of the crime charged in this complaint today’ (emphasis added).’
Commonwealth v. Bermudez, supra. 
The court then explains that, on appeal, Bermudez argued that
if the jury considered the evidence of the March 27, 2012, incident to determine notice, then they were actually disregarding the explicit language at the end of that instruction. We disagree. `Error in a charge is determined by reading the charge as a whole, and not by scrutinizing bits and pieces removed from their context.’ Commonwealth v. Ortiz, 463 Mass. 402, 419 (Supreme Judicial Court of Massachusetts 2012), quoting from Commonwealth v. Petetabella, 459 Mass. 177, 184 (Supreme Judicial Court of Massachusetts 2011). See Commonwealth v. Oliveira, 445 Mass. 837, 844 (Supreme Judicial Court of Massachusetts 2006) (`Jury instructions must be construed as a whole to prevent isolated misstatements or omissions from constituting reversible error where there is little chance that the jury would have misunderstood the correct import of the charge’). The judge intrinsically corrected his earlier misstatement when he later instructed the jury: `Ladies and gentlemen, testimony about any interaction with the Boston University Police in March, if credited by you, may be considered solely on the limited issues [sic] of notice as to the defendant's right to be on the Boston University property.’ `You may not consider this evidence for any other purpose. Specifically, you may not use it to conclude that, if the defendant was on the Boston University property in March of 2013, that the other acts—that he must also have committed these charges.’
Commonwealth v. Bermudez, supra. 
The Appeals Court rather quickly disposed of this argument, explaining that
[t]he jury instruction, when viewed in context, adequately instructed the jury. See Commonwealth v. Torres, 420 Mass. 479, 484 (Supreme Judicial Court of Massachusetts 1995) (`Judges need not deliver their instructions in any particular form of words, so long as all necessary instructions are given in adequate words’). Moreover, any error in the earlier instruction was unobjected to and did not rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Comtois, 399 Mass. 668, 675–676 (Supreme Judicial Court of Massachusetts 1987).
Commonwealth v. Bermudez, supra. 
The court therefore affirmed Bermudez’s convictions. Commonwealth v. Bermudez, supra.  

Wednesday, June 22, 2016

The Lawyer, Sexually Oriented Texts and Misconduct

This post examines an opinion from the Ohio Supreme Court:  Disciplinary Counsel v. Bartels, 2016 WL 3344953 (2016).  The title of the case differs from the usual “Brown v. Smith” (civil case) or “State v. Jones” because the case involves neither a civil suit nor a criminal prosecution.
As the Supreme Court of Ohio’s website explains, the
Supreme Court of Ohio has the constitutional responsibility to oversee the practice of law in the state and has one of the most comprehensive disciplinary systems of any state in the nation. The Court has established three offices—Office of Disciplinary Counsel, Board of Professional Conduct, and the Lawyers' Fund for Client Protection--to exercise independent authority to assist the Court in meeting its responsibility as set forth in Section 5(b), Article IV, of the Ohio Constitution.
The Supreme Court of Ohio & the Ohio Judicial System.
The site goes on to explain that the
Office of Disciplinary Counsel investigates allegations and initiates complaints concerning ethical misconduct and/or mental illness of judges or attorneys under the Code of Professional Responsibility, the Rules of Professional Conduct, the Code of Judicial Conduct, and rules governing the Unauthorized Practice of Law, pursuant to the Ohio Supreme Court Rules for the Government of the Bar and the Government of the Judiciary.
The Supreme Court of Ohio & the Ohio Judicial System.
The opinion this post examines is  an opinion the Ohio Supreme Court issued in an attorney disciplinary proceeding: Disciplinary Counsel v. Bartels.  The “respondent” in the proceeding was N. Shannon Bartels, of Lima, Ohio. Disciplinary Counsel v. Bartels.  The court begins its opinion in the case by noting that Bartels
was admitted to the practice of law in Ohio in 1994. In March 2010, we publicly reprimanded Bartels for engaging in a sexual relationship with a client. Allen County Bar Assn. v. Bartels, 124 Ohio St.3d 527, 2010-Ohio-1046, 924 N.E.2d 833.
Disciplinary Counsel v. Bartels, supra.
As the Ohio State Bar Association’s website explains, if the Supreme Court finds that a lawyer has engaged in conduct that is inconsistent with his/her ethical responsibilities, the court can impose any of four types of discipline:
  • A public reprimand;

  • A suspension from practice for a definite period of time ranging from six months to two years;

  • A suspension from practice for an indefinite period of time (at least two years); or

  • Disbarment, which means the loss of license for life with no chance for readmittance to the Ohio bar. An attorney may also resign the right to practice law. In effect, resigning is the same as being permanently disbarred.
Getting back to the Bartels opinion, the Supreme Court went on to explain how this proceeding arose:
On November 25, 2014, relator, disciplinary counsel, charged Bartels with professional misconduct for soliciting or engaging in sexual activity—texting sexually oriented messages—with a client. The parties stipulated that Bartels had committed the charged misconduct and that a stayed one-year suspension was the appropriate sanction. A panel of the Board of Professional Conduct recommended that the agreement be adopted except that the stay be subject to conditions. The board, however, amended the recommended sanction and instead recommended a one-year suspension with six months stayed on conditions.

Bartels has filed objections to the board's recommendation, and relator has agreed with her arguments. . . . 
Disciplinary Counsel v. Bartels, supra.
The Supreme Court’s opinion then went on to outline the facts that led the Disciplinary Counsel to charge Bartels with professional misconduct:
After spending portions of her legal career working for other entities, Bartels reopened a solo law practice in 2012, focusing primarily in family law and workers' compensation.

In November 2012, Troy Bailey retained Bartels to represent him in his divorce. The divorce was finalized by court entry in July 2013. However, commencing in late February or early March 2013, Bartels and Bailey began exchanging multiple text messages with each other that were sexually oriented. The messages continued for approximately one month and were mutual and reciprocal in their sexual content, but Bartels and Bailey did not actually engage in sexual intercourse with each other.

In April 2013, Bartels received a text from Bailey's cell phone number containing a veiled threat that if the results of the divorce proceeding were not satisfactory to Bailey, the sexually oriented texts as well as nude photographs that Bartels had exchanged with him would be sent to the disciplinary authorities. During a May 2013 phone conversation with Bartels about his divorce proceeding, Bailey put a female—later identified as his girlfriend—on the line who told Bartels that she `had better get Bailey everything he wanted’ from the proceeding. The female also told Bartels to bring $3,000 to a hearing scheduled for six days later. At the hearing, neither Bailey nor Bartels mentioned the threat, nor was any monetary payment made.

For several months after the hearing, neither Bartels nor Bailey mentioned their message exchanges or the purported extortion attempt. Then, in September 2013, Bartels received a text message from Bailey's cell phone number stating that the Ohio State Bar Association and the Better Business Bureau would be contacted if Bartels did not refund at least $2,500 to Bailey. At that point, Bartels reported the extortionate conduct to the Allen County Sheriff's Office and gave that office a statement. Following a law-enforcement investigation, Bailey and his girlfriend, who had sent the extortionate text messages from his cell phone, were indicted and convicted of obstructing justice.
Disciplinary Counsel v. Bartels, supra.
The opinion then goes on to explain that the
parties stipulated and the board found that Bartels's conduct in engaging in sexually oriented text messaging with her client violated [Ohio Rules of Professional Conduct Rule] 1.8(j) (prohibiting a lawyer from soliciting or engaging in sexual activity with a client unless a consensual sexual relationship existed prior to the client-lawyer relationship). We adopt the board's findings of fact and misconduct.
Disciplinary Counsel v. Bartels, supra.
The Supreme Court then took up the sanction that was appropriate for Bartel’s misconduct, explaining that
[w]hen imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties that the lawyer violated and the sanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final determination, we also weigh evidence of the aggravating and mitigating factors listed in [Supreme Court Rules fort he Government of the Bar of Ohio] V(13).

The board found one aggravating factor, that Bartels has a record of prior discipline—namely, her public reprimand for violating the same provision as here. See [Supreme Court Rules for the Government of the Bar of Ohio] V(13)(B)(1). In mitigation, the board found that she fully cooperated in the disciplinary process and submitted evidence of good character. See [Supreme Court Rules for the Government of the Bar of Ohio] V(13)(C)(4) and (5).
Disciplinary Counsel v. Bartels, supra.
The opinion goes on to explain that,
[a]s a sanction, the parties jointly recommend that Bartels receive a stayed one-year suspension. The parties cite Disciplinary Counsel v. Detweiler, 135 Ohio St.3d 447, 2013-Ohio-1747, 989 N.E.2d 41 (`Detweiler II ‘), as the appropriate guidepost in our analysis. That case was the second time that the respondent was disciplined. See Disciplinary Counsel v. Detweiler, 127 Ohio St.3d 73, 2010-Ohio-5033, 936 N.E.2d 498 (`Detweiler I’). In Detweiler I, we publicly reprimanded Detweiler for engaging in sexual activity with a client during representation that was consensual and legal and did not compromise the interests of the client.

In Detweiler II, however, Detweiler repeatedly sent a vulnerable client sexually oriented text messages, including nude photos, that were unwelcome and unsolicited. The client `felt trapped’ and could not afford new counsel at that stage of the litigation. Id. at ¶ 5. Although the board recommended that Detweiler be suspended for one year with six months stayed on condtiions, id., we determined that to adequately protect the public from future harm, a one-year actual suspension from the practice of law was appropriate for his misconduct, id. at ¶ 20.

Here, based on testimony at the hearing, the panel was troubled by Bartels's lack of appreciation that her conduct was contrary to the letter and spirit of the rule. Therefore, although it recommended adoption of the parties' agreement, including the fully stayed one-year suspension, the panel further recommended that the stay be conditioned on Bartels's completion of six additional hours of continuing legal education (`CLE’) on professional conduct and professionalism focused on proper communications and interactions with clients and, upon reinstatement, that she work for a period of one year with a mentoring attorney approved by relator. The board, however, recommends that we suspend Bartels from the practice of law for one year with only six months stayed, subject to the two conditions recommended by the panel.

To support its recommendation, the board cited Lake Cty. Bar Assn. v. Mismas, 139 Ohio St.3d 346, 2014-Ohio-2483, 11 N.E.3d 1180, in which we suspended an attorney for one year with six months stayed for conduct that included sending explicit text messages to a law-student employee and demanding sexual favors as a condition of her employment. We found that Mismas abused the power and prestige of our profession with his conduct and thus deserved a harsher sanction than that proposed by the panel and board, who, as here, also considered the Detweiler decisions.
Disciplinary Counsel v. Bartels, supra.
And, finally, the opinion explains that Bartels
filed objections to the board's report, and relator joined her request for a stayed one-year suspension. Both parties noted that the conduct was mutual and consensual, she did not have sexual relations with her client, the exchanges did not impair her ability to effectively advocate on behalf of her client, and her conduct did not rise to the same level as that in Mismas, in which the respondent abused his position of power and took advantage of his student-employee's vulnerable position. Bartels also noted that both Detweiler II and Mismas were decided after Bartels's conduct in this case had occurred and that she therefore would not have known that mutual, consensual text messaging could be included within the meaning of `sexual activity’ under Ohio Rules of Professional Conduct 1.8(j).

We disagree with the parties and find, consistently with the board, that Mismas is instructive here. We emphasize our statement in Disciplinary Counsel v. Booher, 75 Ohio St.3d 509, 510, 664 N.E.2d 522 (1996) that `the burden is on the lawyer to ensure that all attorney-client dealings remain on a professional level.’ Because this is Bartels's second disciplinary action within five years for a violation of the same rule and her responses to questions at the hearing indicate a lack of awareness of the nature of her wrongdoing, we conclude that the board's recommended sanction is the more appropriate option.

Thus, having considered Bartels's misconduct, the aggravating and mitigating factors, and the sanctions imposed in comparable cases, we adopt the board's recommended sanction. N. Shannon Bartels is suspended from the practice of law in Ohio for one year with six months stayed, subject to the conditions that she (1) complete an additional six hours of [continuing legal education], in addition to the general requirements of Supreme Court Rules for the Government of the Bar of Ohio (13), that are approved by relator, on professional conduct and professionalism focused on proper communications and interactions with clients, (2) commit no further misconduct, (3) pay all costs, and (4) upon reinstatement, serve a one-year period of monitored probation pursuant to [Supreme Court Rules for the Government of the Bar of Ohio] V(21) with a mentoring attorney approved by relator. Costs are taxed to Bartels.

Disciplinary Counsel v. Bartels, supra.

Monday, June 20, 2016

Grand Theft, Petit Theft and the Dell Laptop

This post deals with an opinion from the District Court of Appeal of Florida – Fourth District:  Walker v. State, 2016 WL 2745011 (2016). The court begins by explaining that “[t]he issue in this appeal is whether there was sufficient evidence of the value of a stolen laptop to support appellant's conviction for third-degree grand theft.”  Walker v. State, supra.
The opinion goes on to explain that Walker (“appellant”)
broke into a house and stole a Dell laptop in August 2013. The victim testified that the laptop had a value of $800 because she purchased it for that amount in 2012.

Appellant moved for a judgment of acquittal on the grand theft charge, arguing that the state presented insufficient evidence as to the value of the laptop. The trial court denied the motion. After a jury verdict, the trial court adjudicated appellant guilty of burglary of a dwelling and grand theft.

On appeal, appellant challenges only his conviction for grand theft. He does not raise any issues with respect to his burglary conviction.
Walker v. State, supra.
The Court of Appeal began its analysis of Walker’s argument by explaining that
[t]o establish third-degree grand theft, the state must prove that the value of the stolen property at the time of the theft was $300 or more. Florida Statutes §§ 812.012(10)(a)(1), 812.014(2)(c)(1) (2013).

`Absent direct testimony of the market value of the property, proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction.’ Tindal v. State, 145 So.3d 915, 920 (District Court of Appeal of Florida – Fourth District 2014) (citation omitted). `Evidence of the purchase price and age of the stolen item, without more, is insufficient.’ Tindal v. State, supra.
Walker v. State, supra.
Florida Statutes § 812.012(10)(a)(1) defines the concept of “value” as it applies to “theft, robbery and related crimes”.  More precisely, § 812.012(10)(a)(1) defines “value” as “the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.”
And Florida Statutes § 812.014(2)(c)(1) defines “theft,” in pertinent part, as follows:
(1) 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:
(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. . . .
The issue in this case, of course, was the value of the stolen property, which would determine whether Walker was guilty of third-degree grand theft or second-degree petit theft. Walker v. State, supra. As Wikipedia explains, in the United States
[g]rand theft . . . is an expression used to designate theft that is large in magnitude or serious in penological consequences. Grand theft is contrasted with petty theft, theft that is of smaller magnitude or lesser seriousness. The distinction between grand theft and petty theft presupposes the definition of theft generally. . . .

[E]ach state establishes the distinction between grand and petty theft for cases falling within its jurisdiction. The distinction is generally established by statute, as are the penological consequences. Most commonly, statutes establishing the distinction between grand theft and petty theft do so on the basis of the value of the money or property taken by the thief or lost by the victim. Most commonly, the penological consequences of the distinction include the significant one that grand theft can be treated as a felony, while petty theft is generally treated as a misdemeanor.
As Wikipedia also explains, California, for example,
distinguishes between two types of theft, grand theft and petty theft. Grand theft generally consists of the theft of something of value over $950 (it can be money, labor or property but is lower with respect to various specified property), while petty theft is the default category for all other thefts. Grand theft is punishable by up to a year in jail or prison, and may be charged (depending upon the circumstances) as a misdemeanor or felony, while petty theft is a misdemeanor punishable by a fine or imprisonment not exceeding six months in jail or both. . . .
Florida Statutes § 812.014(c)(2), which you can find here, defines grand theft of the third degree, which is also a felony of the third degree as cases in which the property stolen is:
1. Valued at $300 or more, but less than $5,000.
2. Valued at $5,000 or more, but less than $10,000.
3. Valued at $10,000 or more, but less than $20,000.
4. A will, codicil, or other testamentary instrument.
5. A firearm. . . .
Florida Statutes § 812.014(2)(c) goes on to define a number of other activities that also qualify as grand theft of the third degree, but none of them could apply here, e.g., they include theft of motor vehicles, fire extinguishers, farm animals and stop signs.
Getting back to the opinion, the Court of Appeal explained that
[t[o establish third-degree grand theft, the state must prove that the value of the stolen property at the time of the theft was $300 or more. §§ 812.012(10(a)(1), 812.014(2)(c)(1), Fla. Stat. (2013).

`Absent direct testimony of the market value of the property, proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction.’ Tindal v. State, 145 So.3d 915, 920 (Florida District Court of Appeal 2014) (citation omitted). “Evidence of the purchase price and age of the stolen item, without more, is insufficient.’ Id.
Walker v. State, supra.
The Court of Appeal therefore held that
Tindal is dispositive on this issue. In that case, the victim testified to the purchase price of a laptop in 2007 and the amount it would have cost to replace it two years later when it was stolen. This court reversed the trial court's denial of the defendant's motion for judgment of acquittal on the grand theft charge, and instructed the trial court to reduce the conviction to second-degree petit theft.
Walker v. State, supra.
The court then explained that,
[l]ike in Tindal, here the state introduced evidence of only the purchase price and the age of the laptop. There was no other evidence of market value such as the manner in which the item was used, its general condition and quality, and the percentage of depreciation.

The state argues that unlike in Tindal, here the laptop was stolen only one year after its purchase, whereas in Tindal it was stolen two years after its purchase. We find the difference between a one-year-old laptop and a two-year-old laptop is not significant enough to the issue of the value of the stolen item at the time of the theft. `Electrical components like .. . . computers . . .  are subject to accelerated obsolescence because manufacturers are constantly releasing new, improved technology at lower prices.’ Lucky v. State, 25 So.3d 691, 692 (Florida District Court of Appeal 2010).

In sum, because the evidence was insufficient to establish the value of the laptop at the time of the theft, we reverse the conviction for grand theft and remand for entry of a conviction for second-degree petit theft.

Because appellant does not contest his burglary conviction, that conviction stands.

Reversed and remanded for entry of a conviction and sentence for second-degree petit theft.
Walker v. State, supra.


Friday, June 17, 2016

Littering, the Borrowed Laptop and Due Process

This post examines an opinion from the Superior Court of Pennsylvania:  Commonwealth v. MacArthur, 2016 WL 1250214 (2016).  As courts usually do, this one began the opinion by explaining what the case involved and what had happened at the trial court level, e.g., in the “Court of Common Pleas of Allegheny County, Criminal Division”. Commonwealth v. MacArthur, supra.
The court explains that
John M. MacArthur, appeals pro se from the judgment of sentence of a $300.00 fine, imposed following his conviction for the summary offense of scattering rubbish, 18 Pennsylvania Consolidated Statutes § 6501(a)(1) (hereinafter, “littering”). The issues in this appeal evolved out of the citing officer's failure to list his own badge number on the littering citation, and that officer's subsequent effort(s) to amend the citation to correct that error. Appellant claims, inter alia, that the amending of the citation violated his due process rights. 
Commonwealth v. MacArthur, supra.
The opinion goes on to explain that MacArthur (“Appellant”)
was initially convicted of littering before a magistrate, and then again at a de novo hearing held before the summary appeals court. The summary appeals court summarized the pertinent facts giving rise to the instant appeal as follows:

`At the de novo hearing, Officer Matthew Lucas, a Sergeant with the Bellevue Borough Police Department, testified that on August 16, 2014, the Chief of the Bellevue Borough Police Department assigned him to a plain-clothes detail on Lincoln Avenue for the purpose of enforcing the anti-littering statute. Officer Lucas testified that he observed [Appellant] as he walked past him in the early afternoon on August 16, 2015. As [Appellant] walked toward a pharmacy entrance, he turned and threw his cigarette onto the street.’

`Officer Lucas stopped [Appellant] and identified himself. The Officer then requested a second officer at the location. Officer Dunker responded and Officer Lucas issued a Citation to [Appellant]. Officer Lucas used Officer Dunker's laptop computer to issue the Citation and print it and hand it to [Appellant].’

`[Appellant] did not deny that he threw the cigarette butt on the street and that Officer Lucas observed him while he did it. Instead, [Appellant] argued that the Citation was defective and, therefore, prejudiced him in some way. He failed to explain the nature or effect of the alleged prejudice.’
Commonwealth v. MacArthur, supra.
The opinion goes on to quote from the summary appeals court’s outline of the facts:
The `defect’ in the Citation issued to [Appellant] on August 16, 2014, concerned the badge number typed on the Citation. Officer Lucas requested permission from the Court to amend the Citation which bore the badge number of Officer Dun[ker] (31) to Officer Lucas's badge number (18). He explained that the mistake was due to a clerical error. Officer Lucas testified that he was the officer who stopped [Appellant], introduced himself and issued the Citation to [Appellant]. [Appellant] also testified that Officer Lucas was the officer who stopped him and issued the Citation.

Officer Lucas explained the error on the original Citation:

`When I called Officer Dunker down to my location I actually used his laptop because I was on plain-clothes detail and I didn't have access to one. So when I called the detail officer down, Officer Dunker arrived. I used his log-in, just to try to respect [Appellant]'s time and not tie him up for any longer than I needed to. And when I printed the citation, it defaulted to Officer Dunker's badge number. That's how that clerical error occurred.’

Officer Lucas also testified that he amended the Citation at the hearing before the Magisterial District Court prior to testimony but while [Appellant] was present.
Summary Appeals Court Opinion (SACO), 4/27/15, at 1–3 (citations to the record omitted).
Commonwealth v. MacArthur, supra.
The Superior Court went on to explain that
[a]s noted above, Appellant was cited on August 16, 2014, and appeared before a magistrate. The magistrate found Appellant guilty of littering. Appellant filed a timely summary appeal, which was heard at a de novo hearing before the Honorable Robert A. Gallo of the Summary Appeals Division of the Court of Common Pleas of Allegheny County. Following the hearing, Judge Gallo found Appellant guilty and imposed a $300.00 fine.

Appellant filed a timely notice of appeal. He also filed a timely, court-ordered ordered [Pennsylvania Rules of Appellate Procedure] 1925(b) statement. Judge Gallo issued a Rule 1925(a) opinion on April 27, 2015. Appellant is pro se.
Commonwealth v. MacArthur, supra.
The Superior Court then explained that in the appellate brief MacArthur filed in this case, he presented these “questions for our review”:
[1.] Is [A]ppellant entitled to reversal of the Summary Appeal Trial Court's verdict or a new trial because the erroneous conclusion the Summary Appeal Trial Court made of the citation['s] having been amended on August 19, 2014 violated both [A]ppellant's Procedural Due Process rights under the 5th and 14th Amendments to the United States Constitution, and codified at Commonwealth of Pennsylvania Constitution Article I, Sections § 1, § 9 and §10, and because the prosecution is unable to show that the error in concluding that the citation was amended on August 19, 2014 was harmless beyond a reasonable doubt?

[2.] Is [A]ppellant entitled to a reversal of the Summary Appeal Trial Court's verdict or a new trial because [A]ppellant provided the Summary Appeal Trial Court with evidence of improper and prejudicial ex parte communication had occurred before the September 29, 2014 Magisterial District Court hearing?

[3.] Is the sufficiency of the evidence supportive of the Summary Appeal Court's finding that the Commonwealth established by clear and convincing evidence that [A]ppellant should be found guilty of violating [18 Pennsylvania Consolidated Statutes § 6501(a)(1) ]?
Appellant's Brief at 2 (citations omitted).
Commonwealth v. MacArthur, supra.
The Superior Court then began its analysis of MacArthur’s arguments on appeal, explaining, initially, that his
first two claims concern the matter of Officer Lucas' amendment of the citation to reflect his own badge number. Essentially, Appellant contends the citation amendment was conducted ex parte before the magistrate, thereby violating his state and federal due process rights. Despite obvious and numerous defects in Appellant's brief, we will address this matter.

The summary appeals court concluded that Appellant failed to substantiate that ex parte communications occurred. SACO, at 3 (`[Appellant] fails to set forth any factual basis for such an averment. He also fails to show the substance of such communications, how or where they took place[,] or the parties involved.’). In any event, the court also concluded that Appellant failed to demonstrate that he was prejudiced by the substance or manner of Officer Lucas' amendment.

We find it unnecessary to address the merits of whether a due process violation occurred because, even assuming the amendment to the littering citation violated some principle of due process, we agree with the summary appeals court that Appellant has failed to demonstrate that he was prejudiced by it.
Commonwealth v. MacArthur, supra.
The court went on to explain that
[o]ur rules of criminal procedure provide that:

`A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of these rules, unless the defendant raises the defect before the conclusion of the trial in a summary case or before the conclusion of the preliminary hearing in a court case, and the defect is prejudicial to the rights of the defendant.’

Pennsylvania Rules of Criminal Procedure Rule 109 (emphasis added).
Commonwealth v. MacArthur, supra.
The Superior Court then took up the issue of whether MacArthur was “prejudiced” by what had happened:
At the summary appeal hearing, Appellant did not contest whether Officer Lucas issued the citation to him on August 16, 2014:

THE COURT: Okay. Now let me ask you this, sir. Did you know—you saw Officer Lucas on the street?
[Appellant]: I didn't know who he was.
THE COURT: But you saw him there?
[Appellant]: Well, I saw a young man—
THE COURT: Yeah.
[Appellant]:—leaning against the wall.
THE COURT: Okay. Now, are you saying it was or wasn't Officer Lucas?
[Appellant]: You know what? I don't—it was a while ago. He says he might have had sunglasses, maybe not.
THE COURT: Okay. Sir, just answer the question. Did you or did you not see him?
[Appellant]: I saw a young man—
THE COURT: Okay.
[Appellant]:—who I later learned was Sergeant Lucas.
THE COURT: Yes, he introduced himself, he was Sergeant Lucas.
[Appellant]: Yes, sir.
N.T., 1/21/15, at 32–33.

Given Appellant's admission, we cannot comprehend how he was prejudiced by the manner in which the citation was amended to reflect an effectively undisputed fact. If it is not critical to Appellant's defense(s) to the citation whether Officer Lucas was the officer who observed the violation and issued the citation, then the manner in which the citation was amended could not have prejudiced him.

The only argument we can ascertain from Appellant's brief that touches upon his burden of demonstrating prejudice is Appellant's bald assertion that the ex parte amendment of the citation at the magistrate's office evidenced `a conspiracy to find him guilty’ of littering. Appellant's Brief at 7. This argument is absurd on its face, and not founded on any facts of record. Appellant neither explains why he would be targeted in such a conspiracy, nor what purpose or whose interests such a conspiracy would serve.
Commonwealth v. MacArthur, supra.
The court also noted that
[i]n any event, Officer Lucas sought to amend the citation in open court before Judge Gallo during the summary appeals proceeding. . . . Thus, whatever ex parte communication or related due process error that arose before the magistrate was not repeated and was, therefore, corrected at the summary appeals court, given that the summary appeals proceeding constituted a de novo trial. A de novo trial is not merely an appeal from a conviction before a magistrate; `”[d ]e novo” review entails, as the term suggests, full consideration of the case anew. The reviewing body is in effect substituted for the prior decision maker and re[-]decides the case.’ Rebert v. Rebert, 757 A.2d 981, 984 (Pa.Super.2000). Thus, we conclude that Appellant is not entitled to relief with respect to his first two claims.
Commonwealth v. MacArthur, supra.
The Superior Court then took up MacArthur’s third, and final, issue on appeal which concerned “the sufficiency of the evidence.”  Commonwealth v. MacArthur, supra. The court began its analysis of the issue by explaining that
[o]ur standard of review of sufficiency claims is well-settled:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim[,] the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pennsylvania Supreme Court 2000) (internal citations omitted).
Commonwealth v. MacArthur, supra.
Finally, the court  took up MacArthur’s sufficiency of the evidence argument on appeal, noting that
[a]lthough Appellant lists a sufficiency claim in his statement of the questions presented, see Appellant's Brief at 2, we could only find two short references to this claim in the remainder of his brief. Specifically, in the section titled, `Summary of the Argument,’ Appellant baldly states: `There is not sufficient evidence in the record to find [A]ppellant guilty and the verdict should be set aside due to insufficient evidence to support that finding.’ Id. at 13. 

Subsequently, in the `Conclusion’ section of his brief, Appellant baldly states: `The trial court's order finding [Appellant] guilty of violating [18 Pennsylvania Consolidated Statutes § 6501(a)(1) ] should be set aside due to insufficient evidence to support that finding under the clear and convincing standard. Id. at 14.

Appellant's bald assertions, the complete absence of any accompanying argument, the lack of any citations to legal authorities (other than the statute at issue) and any discussion thereof, and the lack of any references to the record supporting this claim, collectively lead to our conclusion that Appellant has waived this claim for our review. See Commonwealth v. Hardy, 918 A.2d 766, 771 (Superior Court of Pennsylvania 2007) (`This Court will not act as counsel and will not develop arguments on behalf of an appellant. . . . Moreover, when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived.’) (citation omitted)

Thus, in summary, we agree with the summary appeals court that Appellant has failed to demonstrate that he was prejudiced by the amendment to the littering citation that ostensibly occurred before the magistrate. We also conclude that Appellant has waived any sufficiency claim.
Commonwealth v. MacArthur, supra.