A Good Story May Get a Burglary and Theft Charge Dismissed

storage lot.jpgLet’s say you’ve just robbed a home, and you need to unload some merchandise. Where do you go? A pawn shop, maybe? Well, a pawn shop will take your fingerprints and ID, eventually convicting you of stealing the goods. No, you need Craigslist or Backpage, or, maybe just a few friends willing to buy this stuff.

A jury convicted Mr.¬†Yudin of burglary of a dwelling and grand theft in the case of Yudin v. State, 117 So. 3d 457 (2d DCA 2013). Yudin was convicted of taking a couple of televisions, a few laptops, a watch, jewelry, and personal items from a home (personal items like a passport, credit cards, etc). State witness David Cavanaugh testified at trial that he has bought used goods from Jerry Costa in the past, and Costa called him the day of the burglary claiming to have some stuff for sale. So, Costa arrives at Cavanaugh’s house with an overstuffed car that looked so suspicious Cavanaugh’s grandson called the police in broad daylight. How bad do you have to look for the police to get a suspicious person call during the day? Safe to say, this car full of stolen stuff could have been featured in an episode of World’s Dumbest Criminals.

Anyway, Yudin drove Costa to Cavanaugh’s home and assisted him in carrying several items from the car. Cavanaugh testified that Yudin took the lead on negotiations, but no prices were firmed up because the police arrived. When the police arrived, they noticed a “large disheveled pile of items in the back seat of Yudin’s car. Poking out of the pile was a dresser drawer containing a variety of the victim’s personal documents including his passport, social security card, and work identification card.” Id. I’m torn as to whether or not I should believe the cop’s story of stolen stuff sticking out of Yudin’s car. It’s just too convenient. Police reports are often remind me of that friend that is caught cheating on his wife, only to claim he accidentally tripped and fell into a willing woman’s vagina. Sure, it could happen, in the middle of some sort of Cirque Du Soleil Zumanity rehearsals. Same goes for police reports. Cops never violate the constitution. They never break into a car without a warrant, never need to, because there’s always some piece of incriminating evidence “poking out” which gives them probable cause to search without a warrant. Yep, pretty convenient. But in this case you should mark your calendars because I actually believe the police, given the fact that Cavanaugh’s grandson thought the car looked so suspicious he called the police. If the car looked that bad, these guys were dumb enough to leave incriminating evidence “poking out”.

The question for today is not locating that fine line between a convenient police report and believing that a criminal can be so dumb as to make law enforcement’s job so easy. A similar line can be drawn between stupid and funny. I think Workaholics is funny, my girlfriend thinks it is stupid, and we’re both right to some degree. No, we’re talking about possessing recently stolen goods; we want to know where the line is that forces a judge to dismiss theft charges because the explanation as to why one is possessing the stolen goods is “good enough” for dismissal.

We start with the Florida law that “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property” was stolen. Id. Three little words–“unless satisfactorily explained”. Basically, if you give a satisfactory explanation as to why you are possessing recently stolen goods, the state will not get the inference that you “knew or should have known” the property was stolen–and that’s enough to have a theft case dismissed. Yudin appealed his burglary and grand theft convictions because he thought the explanation he provided to the jury was enough to have the case dismissed. What was his story?

Yudin testified at trial that his friend Costa needed a ride because Costa had won an auction to clear out a storage unit but had no way to transport the goods. On the day of the burglary, Yudin picked up Costa, loaded Costa’s stuff in the car, and drove to a pawn shop so that Costa could pawn some of the merchandise (Yudin had Costa’s pawn receipts admitted into evidence, but the goods in the receipt were not verified as being goods stolen, just “jewelry”). Costa gave him a watch for his troubles, the watch which was stolen from the burglarized home, and that’s why Yudin was wearing it at the time of his arrest. Also, Yudin denied ever negotiating with Cavanaugh. Basically, “Yudin claimed that the evidence merely showed that Costa committed the crimes and that Yudin met up with him only intermittently to provide transportation, fully unaware of Costa’s criminal activities.” Id. The judge didn’t buy it, nor did the jury, and he received 15 years in prison on a burglary of a dwelling conviction.

Based upon Yudin’s explanation, should the judge have thrown this case out? That decision hinges on how reasonable his explanation is. Just like Michael Jackson claiming for the second time that he didn’t molest any children–how believable is the story? I believed Michael, because (I’m a defense attorney…) I don’t trust money grubbing parents jealous of Neverland style wealth. Florida courts rate believability as either “arguably” reasonable, or “patently” reasonable. If your story regarding recently stolen goods is “arguably” reasonable–the case must go to a jury. If your story regarding recently stolen goods is “patently” reasonable–the case must be dismissed. Yudin’s story was found to be “arguably” reasonable and that means Yudin’s appeal was denied — he must serve his 15 year prison sentence. If the court found Yudin’s story to be “patently” reasonable, the appeals court would have thrown out Yudin’s conviction and set him free.

Judge Davis wrote a separate concurring opinion on this case. He disagreed with the majority, and found Yudin’s explanation to be patently reasonable, and typically the “patently reasonable” label gets the case dismissed. However, Davis found a middle ground here, arguing that the trial judge probably found Yudin’s testimony not credible based upon evidence of his nineteen prior felony convictions. Nineteen. Ouch. It’s a bold move to have Yudin testify with that many convictions under his belt. The judge cited Coleman v. State, 466 So. 2d 395, 397 (Fla. 2d DCA 1985), as an example of a case in which the defendant’s “credibility was impeached by his admission that he had been convicted of three prior felonies, was found trying to sell the stolen items just a few hours after they had been stolen. . . . The jury was entitled to conclude that appellant’s explanation was unsatisfactory.” Id.

I like Judge Davis’ concurring opinion more than the majority opinion, with one glaring exception. Davis upholds the conviction because Yudin’s nineteen prior felonies may have caused the trial judge to find his testimony not credible. That’s a problem. This sort of logic prevents future defendants with prior felony convictions from winning an appeal based upon the reasonableness of their explanation. Appeals courts may uphold all trial court rulings against defendants who are convicted felons without the need to analyze whether or not their explanation was patently reasonable. The opinion creates a shortcut to denial, and creates a trial court script: “I’m denying your motion for judgment of acquittal because I find the defendant’s testimony to not be credible based upon his prior felony convictions”. If the trial judge recites these magic words, the appeals court may look no deeper. Ouch.