Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SAMUEL DOEL CINTRON, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-40 April 20, 2022 Appeal from the Circuit Court for Hillsborough County; Michael S. Williams, Judge. Howard L. Dimmig, II, Public Defender, and Rachel Paige Roebuck, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and James A. Hellickson, Assistant Attorney General, Tampa, for Appellee. SILBERMAN, Judge. After a jury trial, Samuel Cintron appeals his judgment and sentence for dealing in stolen property. He argues that the trial court erred in giving two jury instructions, over his objection, and that the court violated due process by relying upon improper factors during sentencing. Because it constituted reversible error to give the two challenged jury instructions, we reverse and remand for a new trial and do not address the sentencing issue. Cintron was originally charged in a three-count information with dealing in stolen property, burglary of an unoccupied conveyance, and grand theft. He was accused of stealing work tools belonging to the victim from the victim's van and attempting to sell them on the Internet. At trial, the State established that after reporting the tools as stolen to the police, the victim became aware of an online listing of what appeared to be his tools. The victim corresponded with Cintron online about the listed tools for sale. They agreed to meet in a Walmart parking lot to complete the transaction for $800. When they met, the victim saw the tools, confirmed that they were his, and accused Cintron of stealing them from him. Cintron then fled the Walmart parking lot. The victim recovered approximately forty percent of all the tools stolen from him. 2 Cintron testified that he purchased the tools from a stranger at a gas station for $195. He listed the items for sale on his Facebook account for $900. In response to a Facebook message, he agreed to sell the tools to the victim for $800. He said that when he met with the victim to conclude the sale, and before the victim saw the tools, the victim pulled out a gun and claimed that the tools were his "stuff." The jury was given three inference instructions. Defense counsel timely objected to two of the three inference instructions: the "fair market value" inference and the "by a dealer in property, out of the regular course of business" inference. See Fla. Std. Jury Instr. (Crim.) 14.2; see also § 812.022(3), (4), Fla. Stat. (2020). On appeal, "[w]e review the giving or withholding . . . of a requested jury instruction under an abuse of discretion standard." Brown v. State, 11 So. 3d 428, 432 (Fla. 2d DCA 2009) (citing Worley v. State, 848 So. 2d 491, 491 (Fla. 5th DCA 2003)). "However, '[w]here an instruction is confusing or misleading, prejudicial error occurs where the jury might reasonably have been misled and the instruction caused them to arrive at a conclusion that it otherwise would not have reached.' " Id. (alteration in 3 original) (quoting Tinker v. State, 784 So. 2d 1198, 1200 (Fla. 2d DCA 2001)). Cintron first argues that the trial court improperly provided the fair market value inference instruction on dealing in stolen property. He contends that the State failed to prove the fair market value of the stolen property at the point in time when he purchased the property. As a result, he maintains that the State failed to create any factual basis for the jury to infer that he purchased or tried to resell the tools at "substantially below" fair market value. Section 812.022 provides for inferences regarding the offenses of theft and dealing in stolen property. To prove dealing in stolen property under section 812.022(3), the inference instruction should not be given "unless there is evidence of the fair market value of the stolen property." Fla. Std. Jury Instr. (Crim.) 14.2 (citing Barfield v. State, 613 So. 2d 507 (Fla. 1st DCA 1993)). This portion of the jury instruction reads, "[P]roof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen." Id. 4 To establish the fair market value of stolen property, "an owner's opinion of fair market value is sufficient where it is supported by 'evidence establishing the condition, quality, age, or depreciation of the item at the time it was stolen.' " Sanchez v. State, 101 So. 3d 1283, 1287 (Fla. 4th DCA 2012) (quoting K.W. v. State, 983 So. 2d 713, 715 (Fla. 2d DCA 2008)). But an owner's estimate of the value of the property when no other proof is presented is insufficient to prove the fair market value. Id. In Barfield, the victim testified that a fishing net stolen from his garage was worth "$135 when it was new." 613 So. 2d at 507. A pawn shop owner testified that Barfield had pawned the net at his store for $15. Id. Barfield claimed that he had purchased the net for $10 from a friend the day before he brought it to the shop. Id. The trial court gave the fair market value inference instruction to the jury. Id. Barfield appealed his conviction and argued that the giving of the instruction was error because the fair market value of the net had not been established. Id. at 508. The appellate court agreed, noting that "[n]o concrete evidence of the net's current fair market value was offered at trial." Id. at 507. The court reversed and remanded for new trial. Id. at 508. The court concluded that 5 the error in giving the instruction was not harmless, expressing concern that "this instruction amounts to an improper comment on the evidence by the trial judge and thereby invades the province of the jury." Id.; see also Jeudy v. State, 209 So. 3d 37, 40 (Fla. 4th DCA 2016). In Jeudy, the Fourth District addressed this same issue and noted that "Barfield has become the leading case in a relatively thin line of case law addressing this statute." 209 So. 3d at 40. The court emphasized that "the state must prove the fair market value of a stolen item (to which the state seeks application of the statutory presumption) at the point in time when the defendant purchased it." Id. There, like in Barfield, the Fourth District reversed and remanded for a new trial because the State failed to "present evidence related to the fair market value of the [stolen property] when Jeudy purchased it . . . [so] there [was] no viable method for a finder of fact to ever legally conclude that the price paid by a defendant charged with theft was 'substantially below' an item's fair market value." Id. Here, Cintron argues that the State failed to present evidence to prove the fair market value of the recovered tools. He notes that 6 some of the victim's tools were obtained five to seven years before the theft, some of them were of used condition when they were originally acquired, and the victim merely provided an estimate of their retail value during his testimony. Thus, he contends that the jury had no viable method to legally conclude that the price he paid was substantially below the fair market value of the tools. We agree. The victim testified that all the tools he owned were worth over $20,000 but less than $30,000. Although he had been "collectively cultivating the tools" for approximately nine years, he did not testify as to their condition apart from attesting that he had marked the tools with identification marks. He estimated that the value of the tools he recovered, forty percent of all that were stolen from him, was "[m]aybe" $3,000 or $3,500 or "probably worth about three to four thousand dollars" and that the price of $800 he had negotiated to purchase his stolen tools from Cintron was not the fair market value but rather "a deal at eight hundred bucks." The victim was able to replace some of the tools that had not been recovered and provided receipts for some of the replacement tools. He testified 7 that he had spent approximately $7,500 replacing his unrecovered tools. Although the victim provided an estimate of the total value of the stolen tools, he provided minimal testimony about individual tools that were stolen, no testimony as to depreciation, and no testimony as to the general condition or quality of the tools. Because the State failed to prove the fair market value of the tools, the trial court erred by giving the challenged instruction. Thus, we reverse and remand for a new trial. See Mitchell v. State, 917 So. 2d 1056, 1057 (Fla. 2d DCA 2006) (determining that the State failed to prove value because, even though the owner testified that the stolen items were in working order when stolen and to the original purchase price of the items, "no evidence was offered as to the condition, quality, or age of the items at the time they were stolen or as to any depreciation in value since their purchase"). Cintron next argues that the trial court improperly provided a jury instruction pertaining to dealers in property. This portion of jury instruction 14.2 corresponds with section 812.022(4) and states: 8 Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen. Cintron contends that the trial court improperly provided this instruction because he was not a dealer in property, "so there was no basis for the jury to assess whether the purchase or sale at issue here was in or out of his 'regular course of business.' " A dealer in property is defined as "any person in the business of buying and selling property." § 812.012(2) (emphasis added). Providing this inference instruction "is permissible only when an evidentiary predicate is properly laid." Tatum v. State, 857 So. 2d 331, 334 (Fla. 2d DCA 2003). That evidentiary predicate "should focus upon an accused's direct and personal behavior or involvement in the transaction giving rise to the crime of purchasing stolen property." Id. In prosecuting this crime, the State must establish that the stolen property was purchased by the defendant, a dealer in property, either "out of the regular course of business or without the usual indicia of ownership other than mere possession." Id. (quoting § 812.022(4)). "[T]he prosecution receives 9 the benefit of th[is] inference . . . , i.e., that the dealer had a particular state of mind when he made the purchase—he knew or should have known of the stolen nature of the property," only when all the statutory requirements are met. Id. Cintron was employed by Green Logistics, which dispatches trucks for Amazon. He testified that he purchased the tools from a stranger at a gas station and endeavored to sell them for "a quick buck." He listed the tools for sale on Facebook Marketplace using his personal Facebook account. He testified that he does not work with tools in his trade but that his brother helped him determine the list price. A plain reading of section 812.012(2)1 requires a dealer in property to be "in the business of buying and selling property." The State failed to establish that Cintron met this definition, and we reject the State's argument that a person who, on one occasion, buys property from another and then sells the property constitutes a dealer in the business of buying and selling property. Thus, this 1 "When the statutory language is clear or unambiguous, this Court need not look behind the statute's plain language or employ principles of statutory construction to determine legislative intent." English v. State, 191 So. 3d 448, 450 (Fla. 2016). 10 inference instruction was also improperly provided to the jury, requiring reversal. Finally, we reject the State's argument that any error in giving these instructions was harmless. The State did not carry its burden "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." Ventura v. State, 29 So. 3d 1086, 1089 (Fla. 2010) (emphasis omitted) (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986)). Thus, based on the two improper jury instructions given by the trial court, we reverse and remand for a new trial. Reversed and remanded for new trial. LaROSE and BLACK, JJ., Concur. Opinion subject to revision prior to official publication. 11