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Articles Posted in Shoplifting & Theft

When I was a kid, my mom had a list of neighborhood kids she didn’t want me hanging around.  For the most part, her intuitions were correct, and my childcontracthood is now void of any shenanigans involving “the wrong crowd”.  Sad really, but the good news is, I could find a way to be bad within the good crowd (a story for another day).  Anyway, I’ve represented zillions of clients whose arrest involved something “wrong”—the wrong crowd, the wrong place at the wrong time, and so forth and so on.  Often, if someone is going to blame a criminal charge on the “wrong” anything, it means we’ve probably got ourselves a repeat customer.  I don’t want to Dr. Phil this point too much, but folks who blame themselves rarely come back to see me on a second case.  Those who blame their wife, husband, or pet hamster–I’ve got a client for life.  Job security.

Our case for today begins the same as any “American Greed” episode—a very wealthy, elderly, woman is befriended by a married couple.  The married couple “assists” the old lady with the legal affairs of her estate while she was of limited mentalcapacity.  Somehow, the married couple ends up as beneficiaries in the will.  This is the case of Javellana v. State, 168 So. 3d 283 (Fla. 4th DCA 2015).  Mr. & Mrs. Javellana were convicted of the financial exploitation of an elderly person by manipulating a will to become residual beneficiaries of a vast financial estate.  Mr. Javellana went to trial and lost, but appealed the case on the grounds that “under a principals theory” the judge should have dismissed the charges as “there was no evidence he participated in the exploitation”.  Id. at 284.   Before we get into the evidence of exploitation, let’s briefly explore what it means to be convicted as a “principal” to a crime.

There are plenty of shady words in the world of criminal defense, and “principal” ranks right up there with “loitering and prowling”, the “odor of cannabis”, and an “unrecorded confession”.   Basically, being charged as a “principal” means the state doesn’t have much evidence against you.  It means that there’s a good chance the charges are bogus.  When you see the word “principal”, your BS detector should be on high alert (you get the point).  Continue Reading

Violations of probation (VOP’s) come in all shapes and sizes.  Some are more difficult to prove than others.  A dirty urine violation, for example, is deceptively complex.  Even a curfew violation may not be as simple as you might think.  But today we’re going to review what happens when a citizen is on probation and violates by getting arrested on a new charge.  Nothing gets a prosecutor more giddy than a VOP case based upon a new arrest.  But, don’t be distracted by a prosecutor’s confidence, as their zeal often blinds them to the weaknesses in their case.  I’m all for a little confidence, it makes my job masks

The recent case of Vidale v. State sheds some light on just how difficult it can be to prove up a new law violation at a VOP hearing.  166 So. 3d 935 (Fla. 4th DCA 2015).  Vidale was serving a two year probationary term for dealing in stolen property and throwing a deadly missile.  Like all other probationers, he had two prime directives while on probation.  First, don’t get arrested.  Second, don’t hang out with criminals.  Easy enough, right?  These conditions pretty much parrot every mom’s advice on Earth.  Unfortunately, Vidale found himself in jail on a violation of probation due to a new arrest for burglary of a dwelling and possession of cannabis.  Here’s the testimony at the violation of probation hearing. Continue Reading

I’m sure you remember the financial crisis in 2008 involving Wall Street and fraudulent mortgage backed securities.  I’m sure you’re sick of hearing about it too, but hang inloan there, this all ties in, I promise.   We’re going to compare the treatment a Florida citizen receives for her mortgage fraud, versus the punishment received on Wall Street for a similar mortgage fraud.  Can you guess where this is going?  Let’s start with Wall Street.

Recently, a federal judge summarized the 2008 crisis as follows, “Did defendants accurately describe the home mortgages in the offering documents for the securities they sold that were backed by those mortgages?  Following trial, the answer to that question is clear.  The offering documents did not correctly describe the mortgage loans.  The magnitude of falsity, conservatively measured, is enormous.”  [Judge Denise L. Cote, Federal Housing Finance Agency v. Nomura Holding America, 2015 U.S. Dist. LEXIS 10466 ( S.D.N.Y. 2015, Case No. 11cv6201]

Ok, so Wall Street didn’t “accurately describe”  some home mortgages, and we all know how that story ends.  What about the little guy, or in our case, a gal named Jacqueline Izquierdo.  She was convicted of mortgage fraud and grand theft.  The prosecutors claimed that she provided false information on loan documents used by the mortgage company to determine her eligibility for the mortgage, and convicted of grand theft for taking $216,000 in loan money that she, supposedly, was not entitled to.  Izquierdo v. State (Fla. 3rd DCA October 28, 2015, Case No. 3D13-2751).

Just for a little perspective here, remember the billions of dollars in mortgage fraud from 2008?  No one was arrested.  No one went to prison.  Ms. Izquierdo received a sentence of 14 months prison, followed by two years of home confinement (community control, as we call it here in Florida), and then 8 years of supervised probation.  Here’s what she did. Continue Reading

Science never seems to prove as much as prosecutors claim.  Case in point: fingerprints.  Yes, prosecutors make some pretty ridiculous plea offers when they have incriminating fingerprints.  They get that gleam in their eye, like “Guidry, you can’t get your client out of this one–I have fingerprints!!”   Oh boy, I’ve never seen such a solid case.  Wow, my client must really be guilty this time, right?  Wrong.

What does it mean to say “the defendant’s fingerprints match those found at the crime scene?” Let me tell you what it’s not.  When law enforcement fingerprintstestifies that a crime scene fingerprint “matches” the defendant’s fingerprint, they’re not saying that these two fingerprints are identical.  Sure, it sounds that way, but even with two prints “matching”, the crime scene fingerprint could belong to someone else.  Why, you ask?  Because fingerprint analysis is not an exact science, it’s just a probability claim.   Sure, all of science can be reduced to probabilities, but that’s a philosophical discussion for another day.   Continue Reading

“A poor girl wants to marry, and a rich girl wants to flirt P1020591

A rich man goes to college, and a poor man goes to work” – Charlie Daniels Band

Let’s face it, the deck is stacked against the poor.  If you’re poor and black, it’s even worse.  Yes, what I’m about to say is 10 years past cliche, so it’s almost coming around again, and that makes it ok, maybe even cutting edge (ever hang out with teenagers who think the latest new band is cutting edge, and then deflate them with some NIN or Violent Femmes or anything from the 80’s or 90’s that today’s bands are ripping off–yes, it’s all been done before….except for the stuff I like, that’s all original and fresh).

Here’s an actual quote from a recent police report asking a judge to issue a home search warrant in a poor neighborhood:

Officer to Judge: “Your Affiant received a tip from a confidential informant advising drugs were being sold out of the target residence.”  Ok, that’s his job, so far, we taxpayers are getting our money’s worth.

Officer to Judge: “During the investigation while conducting surveillance of the target residence, Your Affiant on multiple occasions, observed several black males hanging out in the front yard sitting in a chair traveling back and forth inside the residence.  On at least three occasions, several individuals could be seen loitering or congregating outside the target residence.  Based on my training and experience, I know this to be common among drug deals and sales.” Continue Reading

basketball court.JPGI had an argument recently with a prosecutor (shocking, I know), and much of her reasoning centered around her repetition of the cliche “where there’s smoke, there’s fire”. The problem with such clichés is that the other side is basically acknowledging that they cannot respond to your position with any sort of intellectual vigor. Cliché’s avoid substantive arguments–and I’m in the business of making such arguments.

Our case for today is A.B. v. State, 141 So. 3d 647 (Fla. 4th DCA 2014). Here’s the scene: kids playing basketball at a city park, having a good time. Some kids are watching the game, some are on the court playing. The kids playing have left their cell phones and wallets off to the side of the court. At some point, the players noticed a couple of kids running from the area where they left their wallets and cell phones. Sure, enough, their stuff was gone. A.B. was one of the kids running away.

I know what you’re thinking, why run away if you’ve done nothing wrong, right? Well, remember, its kids we’re dealing with, that’s why we can’t use the defendant’s actual name, we have to use initials. Somehow, the cops caught up with A.B. about two weeks after the incident, and he told the officer “I can’t believe I am going down for this alone”. Id. at 648. Now, even if you believe what the officer says A.B. said (I often don’t, unless it’s recorded–every officer carries a recorder/cell phone), this statement isn’t quite a confession. It may be admission that he knows who did it, but it’s not quite a confession. The juvenile further explained that his friend issued the following command: “When I run, you run”. Assuming A.B’s friend is not some sort of pyrotechnical engineer about to launch a 4th of July Jubilee, this sort of statement is the universe’s way of telling you “some shit is about to go down”. Again, we’re dealing with kids here, and this statement probably resulted in a response like “uh, ok, huh” (think Beavis & Butthead).
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shirts.jpgSometimes, the heat of the moment transforms something stupid into something tragic. I’ve seen road rage transform into a prison term, and I’ve seen shoplifting upgraded to robbery. Now, it should come as no surprise that law enforcement’s creative juices are often peaking when they sit down at their laptop to type up the list of charges and “facts” (imagine a Nat Geo slow-mo shot of a butterfly emerging from his cocoon, except this isn’t such a beautiful thing).

It would be unfair to single out shoplifting and robbery charges for police exaggeration. Just sit outside a nightclub in downtown Orlando and you’ll see plenty of misdemeanor disorderly intoxication charges blossom into felony battery on a LEO charges. Or, how about the classic misdemeanor urinating in public? You can’t have a decent club scene like Orlando’s, without a steady stream of urinating charges just after the bars shut down. So, it should come as no surprise to you that law enforcement manage to find 16 year old kids who happened to see you relieve yourself. Congratulations, this urinating in public charge is now a lewd or lascivious exhibition; a second degree felony carrying a lifetime of sex offender registrations (‘Shake it once, that’s fine. Shake it twice, that’s okay. Shake it three times, you’re playing with yourself…’). Ok, back to shoplifting and robbery.

The case for today is Rockmore v. State. 140 So. 3d 979 (Fla. 2014) Rockmore was found guilty of robbery from a Walmart after a shoplifting incident. To understand why this case is important to our discussion of misdemeanors upgrading to felonies, keep in mind that a robbery is simply a theft that includes force either during, or after, the taking. To get a robbery, you need a continuous thieving event. To throw a wrench in this, what happens when the thief abandons the taking and uses force after abandoning the theft? Let’s find out.
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jewelry.jpgEvery theft case needs intent. Unfortunately, most loss prevention officers in retail stores just assume someone intends to steal an item simply because they’ve forgotten to pay for it. I’ve seen more than my fair share of shoplifting cases in which the petit theft was based on a few unpaid items at the bottom of a shopping cart. It happens.

But intent isn’t just about shoplifting versus forgetfulness. Conceptually, if you can’t pay your bills, are you stealing from the people you owe? Is it stealing to rack up credit card debt that you know you can’t pay, right before filing for bankruptcy? What about companies, can they borrow money from creditors with the hopes that things will turn around, only to go out of business soon after borrowing the money? What we’re going to review today is a grand theft case under the heading “business deal gone bad”. As you know, everybody who is owed money wants to transform theses debts into some sort of criminal act on the part of the person not able to pay. Of course, if this were really the case, there would be no need for bankruptcy courts, we’d just prosecute everybody who can’t afford to pay their bills. One of my favorite ‘business deal gone bad’ cases is Szilagyi v. State, 564 So. 2d 644 (Fla. 4th DCA 1990).

In Szilagyi, the defendants were convicted of fourteen counts of first degree grand theft, allegedly stealing over $190,000. The defendant’s owned a jewelry manufacturing business, and they fell behind in their payments to 10 creditors. These creditors sent the defendants products to resell that were never paid for, and never returned. Rather than simply sue the company (defendant) for the debt owed, the creditors prompted the Fort Lauderdale Police Department to initiate a criminal investigation. As usual, the police department and criminal justice system was just being used as a collection agency, rather than fighting real crime. Yes, your taxpayer dollars hard at work, fighting for large companies that extend credit to businesses. Anyway, the detective investigating this case decided that the defendants were running a ‘bust out’ operation. Now, there are several different types of bust out operations, but the basic principle is that the company’s intent is not really to be a company at all, but rather, to use their credit to obtain as much revenue and merchandise from creditors as possible–then skip town. The defendants were in business for over a year, possibly two.
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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”.
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cat and laptop.jpgHave you shopped on Ebay lately? Why is it that one seller has something listed for $100, and that same product is listed for $300 by a few other sellers? What idiot is going to buy the same thing for more than twice the price? For valuation purposes, which price constitutes the actual “value” of the item, $100 or $300? Is it wrong to even use websites like Ebay to make a determination as to what something is worth?

As a general rule, victims in criminal cases are only entitled to be paid back “fair market value” of the items stolen or damaged. Sometimes, fair market value does not adequately reflect the measure of loss, and courts may deviate from this rule when necessary. In criminal cases like grand theft or petit theft, the fair market value must be used to determine the severity of the crime. Steal something worth more than $100,000, and that’s a first degree felony grand theft which will score mandatory prison. Steal an item worth $90,000, and that’s only a second degree grand theft with no mandatory prison time. [for more details on how valuation effects theft charges, check out my article “Grand Theft vs. Petit Theft“] So, how does a court determine fair market value?

I know what you’re thinking–isn’t the current price of an item its fair market value? No, because the current price of an item doesn’t tell us what the stolen item was worth, it only tells us what a newer version of that item would be worth. Ever been to Neiman Marcus? They have some great mens ties, many priced in the $275-$500 range (yes, for a tie). Is the $375.00 price tag on a mens tie the final say as to its “fair market value?” To see how this works, let’s take a look at the recent case of T.D.C. v. State, 117 So.3d 809 (Fla. 4th DCA 2013).
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