Mark Turner Appeal Court Rebuttal: Mark Turner Appeal Denied

Mark Turner is a man in Gulf Breeze, Florida near Pensacola who has been convicted of money laundering, grand theft and racketeering. His Appeal case has been denied, and on that news he attempted suicide. That is the short story of this terrible case of what seems to be a mammoth injustice. There are links to all the documentation of Mark Turner's case at the bottom of this article.

The following is the Appeal rebuttal submitted to the Florida Court of Appeal by Turner's court-appointed attorney. These documents are not easy to read, but I want those interested in Mark's case to see exactly how the attorney argued on his behalf. I have some text in bold and some in red, of points that make it understandable that something is very wrong, and justice was not granted to Mark Turner.

If you are an attorney or paralegal and can help Mark's wife Nancy prepare for a "Post Conviction Appeal," please leave a comment anywhere on my blog or at  Mark's website.

Read the story of Mark's suicide attempt and see two videos he made leading up to the suicide on my latest Mark Turner Update August 2010. Mark makes clear in the videos why he was planning suicide - for reasons we do not usually consider when we hear of a mother or father leaving their family behind.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT OF FLORIDA

MARK S. TURNER,

Appellant,          :

                    :     CASE NO. 1D08-2293

STATE OF FLORIDA,          :

Appellee.          :

                             /

INITIAL BRIEF OF APPELLANT

I.  PRELIMINARY STATEMENT

Mark Turner was the defendant in the trial court and will be referred to in this brief as either “appellant,” “defendant,” or by his proper name.  

References to the Record on Appeal will be by the volume number followed by the appropriate page number, all in parentheses. 

Proceedings below were held before the Honorable Judge T. Michael Jones, Escambia County, Florida.

II. STATEMENT OF THE CASE AND FACTS

This is a direct appeal from a final judgment after Mark Turner was convicted by a jury in a criminal case of conduct of  participating in an enterprise through racketeering, conducting or attempting to conduct unlawful financial activity, and use or investment of proceeds from a pattern of racketeering activity.  Mr. Turner was sentenced to three concurrent prison terms of 12 1/2 years, followed by a period of 17 1/2 years of probation.

The Appellant was arrested on July 6, 2006. (I of V-27). On July 27, 2006, the State filed its first Information charging Appellant with two counts of grand theft. In Count One, the subject of the theft charge was the business, AGOP of Pensacola (hereinafter referred to as, AGOP) Inc, and the Appellant’s brother, David Turner, was the alleged victim. Count Two did not appear in the final Information. (I of V-1).  On May 21, 2007 the State filed amended Information. (I of V-2). Four months later, on November 14, 2007, the State filed its Third Amended Information, wherein the charge of racketeering first appeared. (I of V-5).  There was Fourth Amended Information and finally the fifth, and last Amended Information was filed on February 4, 2008, five years and two months after the earliest alleged racketeering activity. (I of V-8, I of V-11).

The Fifth Amended Information contained three counts: two counts of public order crimes - racketeering, and one count of “fraud-money laundering transaction of $100,000 or more”. The first count, conducting or participating in an enterprise through a pattern of racketeering activity, in violation of Section 895.03(3), Florida Statutes, a first degree felony, charged that Appellant, from on or about September 14, 2002 and continuing through on or about December 21, 2003, while employed by or associated with an enterprise as defined by Section 895.02(2), Florida Statutes, to-wit: AGOP, Inc., did conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity by engaging in at least two incidents of crimes chargeable under Section 812.014, Florida Statutes, relating to theft, that had the same or similar intents, results, accomplices, methods of commission, or were interrelated by distinguishing characteristics and were not isolated incidents in violation of Section 895.03(3), Florida Statutes. (I of V-11). The incidents more particularly were charged as:  (a) the theft of 42 vehicles, as described by year, model and VIN number in the Fifth Amended Information, the property of Pete Moore Chevrolet, Inc.; (b) theft of six vehicles, as described by year, model and VIN number in the Fifth Amended Information, the property of Automotive Finance Corporation (hereinafter referred to as AFC); (sub-count (c) was redacted) and; (d) 1: on or about September 20, 2002, knowingly obtaining or using, or endeavoring to obtain or to use the property of David Turner d/b/a AGOP, to-wit: rights, privileges, interests  or claims in the business known as AGOP, by selling an interest in AGOP, Inc. a/k/a AGOP to Joseph Anthony Zolnoski and/or Lisa Ann Levin-Zolnoski, with an intent to either temporarily or permanently deprive David Turner d/b/a/ AGOP of a right to the property or a benefit from the property, or to appropriate the property to his own use or to the use of any person not entitled to the use of the property in violation of Section 812.014(1)(a) and (b) and 812.014(2), Florida Statutes. Count 1(d) 2 was nolle prossed. Count 1, (d) 3 charged that, on or about January 15, 2003 Appellant did knowingly obtain or use, or endeavor to obtain or to use, the property of David Turner d/b/a/ AGOP, to-wit: rights, privileges, interests or claims in the business known as AGOP, Inc. by removing David Turner as the officer of AGOP, Inc. and designating himself as such, with intent to, either temporarily or permanently, deprive David Turner d/b/a AGOP, of a right to the property or a benefit from the property, or to appropriate the property to his own use or to the use of any person not entitled to the use of the property in violation of Section 812.014(1)(a) and (b) and 812.014(2), Florida Statutes. Count 1(d) 4 was nolle prossed.

The second count Mark Turner was charged with was: conducting or attempting to conduct unlawful financial activity in violation of 896.101(3)(a)&(5)(c), Florida Statutes, a first degree felony, from on or about December 4, 2003 and continuing through on or about February 11, 2004, in Escambia County, Florida knowing that money, funds, or financial instruments involved in financial transactions, to wit: grand theft, in violation of Section 812.014, Florida Statutes, conducting or attempting to conduct such financial transactions totaling or exceeding $100,000 in a twelve month period, which involved the proceeds of grand theft, in violation of Section 812.014, Florida Statutes, either with the intent to promote the carrying on of such unlawful activity, or knowing that the transactions were designed in whole or part to conceal or disguise nature, location, source, ownership or control of the proceeds, in violation of Sections 896.101(3)(a) and (5)(c), Florida Statutes. Specifically the unlawful activity being more particularly described as: (a) the theft of six vehicles, as described by year, model and VIN number in the Fifth Amended Information, belonging to Pete Moore Chevrolet, Inc., and; (b) the theft of three vehicles, as described by year, model and VIN number in the Fifth Amended Information, belonging to AFC. (I-22, I-23, I-24).

In the third count, defendant was charged with: use or investment of proceeds from a pattern of racketeering activity in violation of 895.03(1), Florida Statutes, a first degree felony, from on or about December 4, 2003 and continuing through on or about March 2, 2004, with criminal intent, receiving proceeds derived, directly or indirectly, from a “pattern of racketeering activity,” as defined by Sections 895.02(1) and (4), Florida Statutes, by engaging in at least two incidents of crimes chargeable under Section 812.014, Florida Statutes, relating to theft Section 812.014, Florida Statutes, Section 896.101(3)(a) and (5)(c), relating to unlawful transactions, Florida Statutes, and that these incidents had the same or similar intents, results, accomplices, methods of commission, or were interrelated by distinguishing characteristics and were not isolated incidents, and he did use or invest, either directly or indirectly, any part of these proceeds in the establishment or operation of an enterprise, as defined by Section 895.02(3), Florida Statutes, to wit: Appellant d/b/a/ Car Connection Internet Sales, in violation of Section 895.03(1), Florida Statutes, the incidents being the theft of three vehicles, as described by year, model and VIN number in the Fifth Amended Information, property of Pete Moore Chevrolet, Inc. (I of V-24).

On November 13, 2007, the State filed its first Notice of Intent to Offer Evidence of Other Crimes, Wrongs, Acts, which declared the State’s intention to offer evidence to show that Defendant engaged in other crimes, wrongs, or acts, regarding banking, corporate filings, tax returns, and car dealer licenses. (I of V-47). On February 12th, 2008, there was a Court hearing to determine issues of similar fact evidence as pertaining to this Notice of Intent. (III of V-516, I of V-47).  Appellant did not think the State could establish the facts within the Notice, but stated that if the State was successful in doing so, for Williams Rule purposes, the Court should give the limiting instruction that that evidence is solely for establishing Defendant’s intent. (III of V-519). The Court ordered that the Defendant’s alleged unauthorized filing of false Uniform Business Reports in 2002, 2001, and 2000 would be admitted as relevant to Defendant’s intent, plan, knowledge or motive, (paragraph 2B(2), (3) and (4)). (IV of V-645).

With respect to paragraphs 2C (1), (2), and (3) of the Notice, pertaining to the U.S tax returns for an S Corporation, the State said it intended to offer those to prove that Defendant did not have authority to file the returns. The State further argued that that evidence was pertinent to the issue of ownership of the business and that it would also be pertinent to the issue of intent to use the business for purposes of obtaining money or property for Appellant’s own use. (III of V-520). Appellant objected to any indication that the interest, or income, on the returns was not accurate. (III of V-530).  The Court ordered that these tax returns were admissible as relevant to the issues of Defendant’s intent, plan, knowledge or motive. (IV of V-645).

Paragraph 2 C (4) of the Notice alleged that Mark Turner made false statements on his amended U.S. individual income tax return, in violation of Title 18, Section 1001, United States Code, related to AGOP, Inc. Attorney for the State claimed that he anticipated evidence that the Defendant misstated certain expenses relating to the company that would be pertinent to the anticipated Defense claim that David Turner did not own the company. (III of V-521). Appellant objected to this as it was a collateral matter that was not relevant, and to which the probative value was outweighed by the prejudicial effect. (III of V-522, III of V-523). The Court ordered that this evidence was not to be admitted without further showing by the State, outside the presence of the jury, of its relevance. (IV of V-646).

In paragraph 2, D (1) and (2), of the Notice, the State alleged that Mark Turner acted as a motor vehicle dealer without obtaining a license to do so, in violation of Section 320.027(2) and (8) of the Florida Statutes.  The State argued that this evidence would go to the issue of whether or not the Defendant owned the business and that it was material to the issue as to the element of intent of the theft charges. (III of V-523).  The Court noted that this wasn’t really similar fact evidence, but rather evidence that was, “inextricably intertwined” in the case, and ordered it admissible, as proof of those acts were inseparable from proof of the charged offenses. (III of V-524, IV of V-646).

On November 15, 2007, The State filed its Second Notice of Intent to Offer Evidence of other Crimes, Wrongs, Acts. (I of V-162).  This Notice showed that the State intended to offer evidence that on three occasions, on or about October 30, 2003, on or about June 23, 2003, and on or about February 6, 2003, Appellant, d/b/a/ AGOP, violated the provisions of Florida Statues regulating licensed motor vehicles, as specified in Florida Division of Motor Vehicles Dealer (hereinafter referred to as DMV) Records Inspection Report. (I of V-162). The parties argued this Notice on February 12, 2008. (I of V-162, III of V-525). The paragraphs in contention were: 2A, B and C, regarding the allegations of failed DMV inspections during 2003. (III of V-525). The State contended that this information was relevant to the issue of Appellant’s intent to commit theft, his alleged plan to leave the business and conceal the assets, and relevant to the issue of motive. (III of V-525). Appellant objected, arguing that this information was not relevant to the charges; the inspections were merely routine administrative checks. (III of V-526).  Further, Appellant agued the information was prejudicial and not probative. (III of V-527). The Court suggested that the inspection information was not necessary as long as the State had the notice from the Department, whether in writing or orally, informing Appellant that the Department was about to take some action. (III of V-534). The Court also explained that, based on what it knew, the inspection information could be confusing and misleading. (III of V-534). The Court ordered that evidence of the DMV notice to the Defendant that it would take action to revoke the dealer’s license of AGOP was admissible as to intent, plan, knowledge or motive. (IV of V-645). However, the Court ordered that evidence of the Defendant’s alleged violation of laws regulating licensed motor vehicle dealers as shown by dealer inspection reports (paragraphs 2A, 2B, and 2C) would not be admitted without further showing by the State, outside the presence of the jury, of its relevance. (IV of V-646).

     On November 20, 2007, the State filed a Third Notice of Intent to Offer Evidence of Other Crimes, Wrongs, and Acts. (II of V-239).  This Notice showed that the State intended to offer evidence that: as stated in paragraph 2A, on or about May 29, 2003, Appellant did knowingly obtain or use, or endeavor to obtain or use, the property of Branch Bank and Trust (herein after referred to as BB&T), that is, loan proceeds, with intent to either temporarily or permanently, deprive BB&T of a right to the property or a benefit from the property, or to appropriate the property to his own use or to the use of any person not entitled to the use of the property, in violation of Sections 812.014(1)(a) and (b) and 812.014(2)(a)1, Florida Statutes, and; as stated in paragraph 2B, on or about December 10, 2003, appellant did knowingly obtain or use or endeavor to obtain or use, the property of AGOP Inc. a/k/a AGOP and/or David J. Turner d/b/a AGOP, that is, funds on deposit at Bank of Pensacola, with intent to, either temporarily or permanently, deprive AGOP and/or David Turner of a right to the property or a benefit from the property, or to appropriate the property to his own use or to the use of any person not entitled to the use of the property, in violation of Sections 812.014(1)(a) and (b) and 812.014(2)(a)1, Florida Statutes. The State provided that this evidence was relevant to prove the Appellant’s knowledge, plan or intent relating to charged offenses. (II of V-239).

The parties argued the State’s Third Notice of Intent to Offer Evidence of Other Crimes, Wrongs, Acts, on February 12, 2008. (II of V-239, III of V-535). The State requested that the information, concerning refinancing, paragraph 2A, which he indicated might be mortgage fraud by Defendant and David Turner, be presented to the court out of the presence of the jury. The State’s attorney proclaimed that he though this was a, “highly volatile issue”. (III of V-536). The Court decided that when and if the issue came up the parties could argue about it, and he would determine at the time whether or not such material should be admitted. (III of V-538). The Court also declared, in regard to paragraph 2A, that, as of that time, no comment shall be made as to any possible fraud in the loan transaction that went to pay off debts to Pete Moore Chevrolet, either in opening statement, or at trial, and no evidence was to be presented at trial unless someone convinced the Court that the information was pertinent and relevant. (III of V-539). The Court ordered that that evidence would not be admitted without further showing by the State, outside the presence of the jury, of its relevance. (IV of V-645).

The State’s first, second and third Motions in Limine were filed on or around November 13, 2007. On December 27, 2007, the Court’s order granting the State’s Second and Third Motions in Limine was filed. Appellant had no objections at that time to the two motions. (III of V-374, III of V-375). 

The State’s first Motion in Limine was filed on or around, November 13, 2007. Appellant objected to the State’s First Motion in Limine. (II of V-298). Appellant argued that the fact that he had a civil suit against Pete Moore Chevrolet for stealing his Internet business was relevant to the prejudice and bias of the witnesses who were employees of Pete Moore Chevrolet, and also to the bias of Peter Moore. (II of V-298). Appellant explained that this was a key part of his defense and was central to the theory of his case. (II of V-299).  Pete Moore offered to settle with Appellant without ever filing any criminal charges. (II of V-303). The Court granted the State’s first motion in limine, without prejudice. (II of V-305, II of V-327). The Court recognized that the order did not preclude the Appellant from offering evidence of the civil litigation between the parties to show bias, interest or prejudice on the part of any witness. (II of V-327).

On June 17, 2008, the Court held pre trial proceedings regarding the State’s fourth, fifth and sixth motions in limine. (IV of V-572).  In the Fifth Motion in Limine the State moved the Court to limit testimony that David Turner caused this case to be brought because he is related by marriage to the former State Attorney. (III of V-553). The Court granted this motion, as stated. (IV of V-575).

In the sixth motion in limine, the State sought the Court to preclude the Defense from expressing or implying that the Defendant repaid any of the money Appellant owed Pete Moore Chevrolet. (III of V-563, IV of V-580). Counsel for Defendant argued that in about 2002, when he got behind on payments to Pete Moore Chevrolet, Mark Turner signed, as part of a promissory note, a mortgage to Pete Moore Chevrolet. Pete Moore Chevrolet recorded the mortgage and they collected on it just like any other loan. (IV of V-586).  Although the money was paid back in 2005 through a foreclosure, Pete Moore Chevrolet, none-the-less, had a mortgage on the house. If Appellant for some reason wasn’t able to pay by other means, whether the house was sold or it was foreclosed, Pete Moore Chevrolet was entitled to the proceeds on the mortgage. And, indeed, Pete Moore Chevrolet did get paid, more than was required on the promissory note. (IV of V-590). On March 6, 2008, the Judge stated that he was going to grant the State’s Sixth Motion in Limine, but noted that he might revisit this ruling at the time when the evidence was received in context during the trial. (IV of V-606).  On March 10, 2008, the Court reversed its previous position and ordered that the State’s Sixth Motion in Limine was denied. (IV of V-690).  The State’s Fourth Motion in Limine moved for the Court to limit testimony regarding Pete Moore Chevrolet, Inc. committing theft of the Appellant’s business, AGOP. (III of V-552). Subsequently, the Defense filed a Notice of Intent to Offer Evidence of Other Crimes, Wrongs, and Acts. The State then filed an objection to that notice.  The State’s Fourth Motion in Limine was argued along with the State’s objection to Appellant’s Notice of Intent, since the subjects were similar.  In the Notice, the Defense signified its intent to offer evidence that: a) Pete Moore threatened to accuse Appellant of a crime or offense, or to expose Appellant to disgrace, or to expose any secret affecting him, with the intent to obtain money or pecuniary advantage, or to compel the Appellant to do any act or to refrain from doing any act against his will. (III of V-559); b) Pete Moore and/or employees of Pete Moore did obtain or use or endeavor to obtain or use the property of Appellant and/or AGOP, Inc., that is, computers, scanners, digital cameras, servers, and rights, privilege, interest or claims in the business known as AGOP, Inc., with the intent to either temporarily or permanently deprive Appellant and/or AGOP, Inc., of a right to said property or benefit from the property or to appropriate the property to his own use or to the use of any other person not entitled to the use of the property, in violation of F. S. 812.014(2)(a)(1) (III of V-560); c) Pete Moore and /or employees of Pete Moore unlawfully consigned automobiles to Appellant and/or AGOP, Inc. ; d) David Turner obtained or used, or endeavored to obtain or use, the property of Appellant and/or AGOP, Inc., that is cars, deposits, checkbooks and titles, with the intent to either temporarily or permanently deprive Appellant and/or AGOP of a right to said property or a benefit from the property or to appropriate the property to his own use or to the use of any person not entitled to the use of the property, in violation of F.S. 812.01(1)(a) and (b) and F.S. 812.014(2)(a)(1). (III of V-560).

The State objected to Defendant’s Notice. (III of V-562). The court ruled that part 3(b) of the Notice regarding Pete Moore and/or employees of Pete Moore knowingly obtaining or using the property of Mark Turner and/or AGOP, Inc. with the intent to either temporarily or permanently deprive him of the property, was appropriate Williams Rule evidence, and preserved and permitted Appellant’s opportunity to explore the motive of the alleged victim to give false testimony. (IV of V-620).  The Court found that even though the acts the State objected to might not be crimes, that there was nothing to preclude Defendant from discussing evidence of them in opening statement or of offering evidence where it would tend in any way to establish a reasonable doubt, or support the Defendant’s theory of the defense. (IV of V-690). The Court denied the State’s Fourth Motion in Limine as well as the State’s Objection to Defendant’s Notice of Intent to Offer Evidence of Other Wrongs, Crimes or Acts. (IV of V 690).

On March 6, 2008, the Defense filed its First, Second and Third Requested Jury Instructions. The first instruction outlined a good faith defense to the charge of intent to defraud. (IV of V-638).  This First Requested Jury Instruction was granted, as amended. (IV of V-665). The Second Requested Jury Instruction, Good Faith Reliance Upon Advise of Counsel, was denied on March 18, 2007(sic). (IV of V-666).  The Court also denied the Third Requested Instruction regarding intent being an essential element of the crime. (IV of V-667). The Defendant’s Fourth Special Requested Instruction, that the Defendant is on trial only for the offenses alleged in the information, and that the Defendant is not on trial for any misconduct not alleged or charged in the information, was filed on March 18, 2008. (IV of V-654). Preliminary Instructions, Final Instructions and the Verdict Form were filed on March 18, 2008. (IV of V-668, IV of V-692)

     On March 10, 2008, Jury selection was held and the jury trial began. (IV of V-641).  The trial concluded on March 19th, 2008.  One juror was excused without objection before the first witness took the stand.  (I-118). The State called twenty-nine witnesses in its case-in-chief.

The first witness was Hope Lunsford, a compliance examiner for the DMV. (I-122). One motor vehicle dealer license was issued to David J. Turner on October 28, 1998. It was renewed each year until it was relinquished on December 15, 2003.  (I-149, I-151).  The license was initially issued for AGOP, and in 2000, the renewal was for AGOP, Inc. (I-142). Ms. Lunsford was not aware of the facts resulting in the change of the business from AGOP to AGOP Incorporated. (I-142).

     The next witness, Richard Stone, Chief Operations Officer for the Escambia County Tax Collector, testified that everyone that operates a business in Escambia County is required to submit an application for what was called an occupational license, (now called a local business tax receipt). (I-185-190). An occupational license was issued to AGOP on September 25, 2001, with the owner name indicated as, David Turner. (I-188).   The last renewal date of this license was, August 21, 2003. (I-189).

Next, Roxanne Sawyer, comptroller for Pete Moore Chevrolet Incorporated, a retail car business, testified. (I-192). In March of 2003, Roxanne Sawyer noticed that AGOP had not yet paid for thirteen cars that they had been billed for. (I-201). Roxanne Sawyer testified that sometimes cars were sold and payments were not made until later, such as, when there were problems with the titles. (II-226).  Up until that point, in early 2003, Pete Moore Chevrolet and AGOP had had a normal business relationship. (II-212).

The State called Peter Richard Moore. He has been a retailer in the automobile industry since 1976. He bought a dealership in 1981. He then bought two other franchises, Volkswagen and Mitsubishi. He has three divisions of Pete Moore Chevrolet, Inc.: Pete Moore Chevrolet, Pete Moore Imports and Pete Moore Mitsubishi. (II-234). Peter Moore has known Appellant for approximately the last ten years, and may have been doing business with him for over twenty years. (II-246). The AGOP had an arrangement whereby they sold cars over the Internet through EBay for Pete Moore Chevrolet, in return for a commission. (II-236). Cars from Pete Moore Chevrolet were placed on AGOP’s lot without transferring the car’s title. (II-249). 

Sometime before March 2003, Appellant was interested in selling his Internet business.  Peter Moore went out to the AGOP location on Highway 97 South, with Rick Hamilton, to view the operation. (II-257).  Appellant and Peter Moore discussed a price of $500,000 for the business. (II-261).

In 2003, Peter Moore probably had a discussion with Appellant about a position with Pete Moore Chevrolet in the Internet sales business. (II-289). Part of that conversation may have been related to the transfer of Appellant’s computers, and his personnel being taken over to Pete Moore Chevrolet, or Pete Moore Imports, around December of 2003. (II-289).

The State called Michael Guttmann, attorney for Pete Moore Chevrolet. (II-298). In March of 2003, there was a meeting at Peter Moore’s office with Michael Guttmann, David Turner, Mark Turner, Peter Moore, and Rick Hamilton.  (II-240). At the meeting, it was determined that the Appellant owed Pete Moore Chevrolet around $140,000 or $150,000 and owed Rick Hamilton, approximately $63,000. (II-301-II-302, II-391). To satisfy the debt, Mark Turner offered to give Pete Moore Chevrolet a mortgage on two pieces of property; one was on Highway 97, and one in Santa Rosa County. (II-305, II-313). The parties arranged that Mark Turner would make a minimum monthly payment of $3,000, and Pete Moore Chevrolet would continue giving Mark Turner cars to sell on the Internet. (II-306, II-311).  The profit that Appellant would make on the car sales was to go towards his debt. (II-306). Michael Guttmann drew up a promissory note for $220,000, the money owed Pete Moore Chevrolet and Rick Hamilton, secured by mortgages on the two pieces of property. (II-309, II-318).  The note was signed, AGOP Inc., by Mark Turner, and AGOP Inc., by David Turner. (II-310). Michael Guttmann prepared a mortgage for the Highway 97 property and one for the Santa Rosa property, each signed by Mark Turner and, his wife, Nancy Turner. (II-330). Michael Guttmann went to the mortgage to collect the money owed, and he received around $205,000. (II-331). Pete Moore Chevrolet was paid for the $140,000 or  $150,000 that Appellant owed him. (II-319). This money was for the group of thirteen cars Appellant was charged of theft with in Count 1(a) 1 through Count 1(a) 13 of the information.   Before Michael Guttmann recovered the money he had a conversation with Appellant’s attorney, Jim Chase. (II-320).

Next, the State called Rick Hamilton, general manager of Pete Moore Chevrolet. (II-342). Appellant and Rick Hamilton have been friends for over twenty years. (II-372). Rick Hamilton oversaw arrangements between Pete Moore Chevrolet and AGOP. (II-237). As a manager of Pete Moore Chevrolet, he set up the agreement with Appellant that Pete Moore would pay $600 dollars for every car that AGOP sold on the Internet and $200 dollars for every car that was advertised but did not sell. (II-351).

After the March 2003 meeting, the Appellant moved The AGOP car lot in order to be closer to Pete Moore Chevrolet. (II-358).  This made it easier to transport cars between the two lots. (II-392).  Pete Moore Chevrolet still gave Appellant cars to sell on the Internet, even after it was discovered that he owed $146,000. (II-392). After AGOP closed, Pete Moore Chevrolet hired three of AGOP’s employees. (II-361).  Over the twenty or so years of their relationship, Rick Hamilton loaned Appellant money and always trusted that he would be paid back. (II-374).  Rick Hamilton stated that he loaned Appellant, “probably $100,000 back and forth a lot of times.” (II-373).  After a deal that Appellant had made at one time to sell part of his business fell through, Rick Hamilton lent Appellant $100,000. (II-380).  Rick Hamilton was never worried about the $100,000 because, as Mr. Hamilton said, “He always paid me back.” (II-381).  Appellant had fallen behind in his payments before, but he had always paid Rick back. (II-381). On occasion, when Rick Hamilton was loaning Appellant money, he would take the title to cars that Appellant was selling and hold those titles as collateral for money he had loaned Appellant. (II-388). Other times Rick Hamilton didn’t take car titles but held the checks on the cars, and when the car was sold he would cash the check. (II-390).

After David Turner rescinded the AGOP license that Mark Turner was working under, Pete Moore Chevrolet delivered some car titles to AGOP customers that had bought cars but had not yet received their titles. (II-395).

The State recalled Roxanne Sawyer. (III-412). By the end of 2003, AGOP had paid $40,000 of the $146,000 debt, leaving approximately $106,000 left in debt. (III-414, III-426). Probably between January and March of 2004, Roxanne Sawyer discovered that an additional thirty-two cars, with a sum amount of approximately $306,000 had been billed to AGOP, but had not yet been paid. (III-416, III-418). Thus, $106,000 plus the $306,000 minus the $205,000 collected from the foreclosure added up to approximately $206,000 in debt Appellant owed to Pete Moore Chevrolet, at that point. (III-421). From the time of the meeting in March of 2003 through to September 2003, Roxanne Sawyer did not know of any problems of Appellant not paying for new cars. (III-429).

The State called Sara Williams, vice president with Bank of Pensacola. (III-441). Bank of Pensacola acquired Horizon Bank in 1999. (III-442). The bank account for AGOP was established with Horizon Bank.  (III-459). It was updated at the Bank of Pensacola with the signature, Mark Turner, and dated September 20, 2002. (III-460, III-461).

The State called Michael Adkins, a certified public accountant, and an expert in forensic accounting.  (III-474, III-475). Michael Adkins tracked $167,000 in payments the group of thirteen vehicles to AGOP, deposited into the Bank of Pensacola account. (III-478). For one of the thirteen cars listed he was unable to follow the record, or trace the amount, of the vehicle. (III-479). It appeared that the $167,000 was spent or was no longer on deposit by the first week of March 2003. (III-480).  For thirty of the group of thirty-two vehicles, a total of $348,967 in customer payments to AGOP was deposited into the Bank of Pensacola, 1-8-2, business account. (III-481).  He was unable to find the deposit for one of the vehicles and for one of the cars the funds did not go to the AGOP bank of Pensacola business account, but went to a Bank of America account. (III-482).

From September of 2002 through to December of 2003, checks worth approximately $198,000 were written to Mark and Nancy Turner from the AGOP business account. (III-484).  According to Michael Adkins, it appeared that Mark Turner charged $116,967 on the business American Express account for personal purposes. (III-484).  $15,000 went to cash payments to Mark and Nancy Turner and $8,823 went to health plans. (III-484).

Michael Adkins, over Appellant’s objection, went over numerous itemized expenses on the American Express bills that were paid from the AGOP checking account, and noted which expenses he categorized as personal and which ones he thought were business related. (III-498-III-502). Appellant asked for an instruction to the jury on this matter. He objected to the State recounting each itemized expense, when the amount and quantity had already been testified to.  Appellant noted that the inference of misconduct was that Appellant didn’t pay taxes on these items, and there was an implication that there must be something wrong because Appellant paid for the expenses from his AGOP account. With so much emphasis on this matter, Appellant argued that the misconduct was becoming a feature of the trial. Appellant moved for a mistrial based on misconduct not charged. (III-503).  The Court denied the motion. (III-506). The Appellant then asked again for an instruction from the Court that he was not on trial for any misconduct not charged. (III-506). The Court did not give an instruction. The Court permitted the testimony for the purposes of illuminating the testimony and clarifying what was meant by the term “personal use”.  Mike Adkins’ testimony regarding the classification of personal and non-personal expenses continued. (III-508).

The State recalled Hope Lunsford. (III-545).  AGOP was inspected by DMV in November of 2002, and February and June of 2003. (III-545-546). The primary purpose of these inspections was to educate the dealers in performing their functions. (III-548). The inspector discussed requirements regarding the issuance of temporary tags and the requirement to have indicia of ownership of the vehicles on the premises. (III-547). 

Next the State called another DMV witness, Elizabeth Anthony. In October of 2003, DMV compliance officers went to AGOP to perform an audit. (III-554).  The inspector asked AGOP to bring in three prior month’s records to the inspector’s office in order to complete the audit.  (III-560). The records were brought in, reviewed and discussed with David Turner. (III-561).  DMV was in the process of doing an administrative hearing when David Turner turned in his dealer’s license. (III-561).

A third DMV witness, Bruce Thompson, was the next witness the State called. (III-573).  He was a compliance officer in training, who accompanied Elizabeth Anthony on the October 30th, 2003 inspection. (III-573). One of the ten random cars he sampled during the inspection had no title on the premises. (III-575, III-576).

The State called Anthony Ramsey, David Turner’s son-in-law, and a former AGOP employee, who was working for Pete Moore Chevrolet at the time of his testimony. (III-579, IV-647).  Anthony Ramsey heard Appellant say, on separate occasions, both that he owned the business and that he did not. (III-582). When AGOP sold a vehicle to a customer, an employee would write a check to the entity, such as e.g. Pete Moore Chevrolet, that was owed money, and then the employee would put the check in the front of the checkbook. (IV-615).  AGOP would not actually pay the entity the hold check was written to, until after the customer picked up the car. It was typical for a customer not to pick up the car until weeks after it was sold.  (IV-653). It was Anthony Ramsey’s understanding that writing the hold checks meant that that was money AGOP owed. (IV-658). In all the years Anthony Ramsey worked for AGOP they did hundreds of thousands of dollars of business with Pete Moore Chevrolet, using this same hold check system. (IV-658).  He never saw anyone ever attempt to try to hide the fact that they were selling cars and that money was owed to Pete Moore Chevrolet. (IV-658). Neither did he ever see Mark Turner make any attempt to conceal business dealings.  (IV-659).

Sometime after the October 30, 2003 DMV inspection, Anthony Ramsey took the AGOP checkbook and the current deposits to David Turner upon his direction.  (IV-640).  The deposits may have totaled somewhere between forty to sixty thousand dollars. (IV-666). After he gave David Turner the checkbook and deposits, David Turner wrote him a check for $5,000. (IV-646). Anthony Ramsey also took a vehicle from the AGOP car lot. (IV-647). Then David Turner pulled the license. (IV-640). When the car lot was closed, AFC, Manheim, and Pete Moore Chevrolet, came and picked up their cars from the lot. Afterwards, there were still some cars remaining on the lot.  (IV-642). Appellant told Anthony Ramsey and some other employees that he would try to get them jobs at Pete Moore Chevrolet. (IV-641). Three employees did end up at Pete Moore Chevrolet. (IV-644). When Anthony Ramsey went to work for Pete Moore Chevrolet, he took with him computers from the AGOP, scanners, digital cameras, possibly the same templates that were designed by AGOP employees, and possibly the same server. (IV-667, 668).

The State then called Appellant’s brother, David Turner. ((IV-701). David Turner did not know where AGOP’s business checkbook was kept. When re-asked, about the whereabouts of the AGOP Bank of Pensacola account checkbook he said: “Okay. Yeah. That was at the office, or either Mark took it home, or something, or Anthony hid it around there, or something.” (IV-713). David Turner did not know who kept the books for the business. When asked, he stated: “You know, Anthony may have kept some. Nancy (Turner) probably kept more than he did, and whatever secretary that I might have had at the time might have done it.” (IV-714) David Turner also did not know whether there were checks written out of the business to pay for insurance. (IV-715). David Turner did not take compensation at regular intervals from the business. He said that he might have taken $5,000 or $10,000 one month, or he might go two or three months with out receiving any money. He started out with a compensation of about $16,000 a year, and it went up to around $50,000. (IV-715).  When asked if he wrote these checks to himself, or whether they were written by someone else, he said that Mark “may have” written them. (IV-715).  David Turner admitted that he did not pay much attention to the business. (IV-720). 

David Turner was present at the March 2003 meeting at Pete Moore Chevrolet where the parties discussed the AGOP debt. At the meeting Mark Turner talked about selling AGOP to Pete Moore. David Turner never tried to disabuse the parties at the meeting when Mark Turner repeatedly referred to the business as his own. David Turner was not surprised that Pete Moore Chevrolet was loaning Mark Turner money or that people were floating money because that’s what they do all the time in the car business. (IV-794).       Shortly after the March 2003 meeting, David Turner, along with Mark Turner, signed the $220,000 promissory note to Pete Moore Chevrolet, secured by mortgages on the two pieces of property, that Michael Guttmann had drawn up. (IV-727, II-309, II-318). Sometime later in 2003, David Turner bought, from Mark Turner, one of the properties listed as a security on the promissory note. (IV-728, IV-730).  Mark Turner did not receive money from that transaction. David Turner assumed Mark Turner’s payments. (IV-796). Mark Turner signed the house over to David Turner, David Turner refinanced it and took Mark Turner off the mortgage, and David Turner got about $81,000. (IV-796).

 In October of 1999, David Turner incorporated AGOP. (IV-762).  From January 15, 2003, to December 12, 2003, Mark Turner was listed as the official owner of the AGOP Corporation. (IV-745). David Turner said that he did not know how the ownership listing had changed, but he was surprised to find he was not listed as the owner. (IV-744). On December 12, 2003, David Turner went to Tallahassee and had his name put back as the owner of the AGOP Corporation. (IV-745). 

There was a dispute as to who owned the AGOP account at Bank of Pensacola. (IV-790). David Turner said that he rarely wrote checks from the AGOP checkbook. (IV-766). After Anthony Ramsey had brought David Turner the AGOP checkbook and deposits, in December of 2003, David Turner went to the Bank of Pensacola and tried to take Mark Turner’s name off of the AGOP account and to get control of the account, but was unsuccessful. (IV-736, IV-745, IV-786).  Subsequently a dispute arose over the money in that account, and David and Mark Turner both hired attorneys to settle the dispute over who was entitled to the balance of the account money, some hundred thousand dollars or so. (IV-787). At the time in December or 2003 when David Turner was attempting to get the money from the Bank of Pensacola account, he did not have a stock certificate. (IV-791). He later got a stock certificate and signed a hundred shares to himself, backdated to October of 1999. (IV-791). David Turner never filed any tax returns pertaining to AGOP Inc. (IV-792).  He did, however, report his income from AGOP on his tax returns to his accountant. (V-810)

David Turner said that he did remember a time when he had a meeting with Linda Joyner from MAFS. (IV-792). He said the meeting was about extending his line of credit, but he also said he did not remember what the meeting was about. He said that he brought “something up about the corporation” then he said that Linda Joyner did “mention something about a corporation”. (IV-792). 

When David Turner turned his license in to DMV, in December of 2003, he took fifteen to twenty cars from the AGOP car lot over to Manheim’s car auction and asked the manager to sell them.  (IV-746).   He put the deposit money that Anthony Ramsey had given him into his AGOP Wholesale account. (IV-749).  The AGOP Wholesale account was another business account he had with Bank of America that he used to pay personal bills out of, and also to pay off an American Express credit line. (IV-712). With the deposit money, he hired a lawyer, paid Anthony Ramsey $5,000, paid his house payment, paid his electricity bill and possibly paid off some credit lines with Automotive Finance Corporation.  (IV-749-750). David Turner pulled some cars off the lot that were paid for and owned by AGOP. (IV-777). He gave an Isuzu to his girlfriend, and a 2002 Sable to Anthony Ramsey.  (IV-777).   On December 12, 2003, David Turner gave his girlfriend a check for $30,000 from AGOP funds. (IV-778).  David Turner wrote the check for $5,000 to Anthony Ramsey from funds that were probably deposited into his account from AGOP.  (IV-783)  Checks payable to AGOP, for $6,607.47, and for $15,554, were deposited into his AGOP Wholesale, Bank of America account. (IV-784).

     The State then called Bruce Thompson, again. He testified that the AGOP license was surrendered December 15 (2003). (V-832).  When the business closed, there were approximately twenty vehicles still on the lot. (V-832). Before trial, the State prepared a list of individual AGOP customers and asked the DMV to check and see whether any of them had any complaints. (V-843).  The DMV called about a third of these customers to ask them directly whether they did have any complaints. (V-843).  During the examination the State Attorney named, one by one, thirty-three AGOP customers. Even though there was a chart in evidence summarizing this information, the State still listed each customer, one by one, and asked the witness whether each one had filed a DMV complaint.  He stated that a majority, he didn’t know how many, of the customers had complaints. (V-841). After more testimony regarding DMV violations, Appellant renewed his motion for mistrial based on uncharged misconduct, which he noted, was becoming a feature of the trial. (V-841). The Court denied Appellant’s motion. (V-842). 

Don Quinn, a forensic document examiner, was the next witness called.  He had examined three documents: uniform business reports, the signature card from the Bank of Pensacola account and a corporate resolution as well as writing samples from both David and Mark Turner and their wives.  State Exhibit 16A, (14), dated January 15, 2003, had a deletion and an addition to the director, owner, or officer, that showed significant handwriting characteristics in the handwriting of Nancy Turner. (V-863). On State Exhibit 16 B, there was a pen number that Don Quinn determined was neither written by Nancy Turner, nor by Appellant. (V-867).

The next witness was Arthur Felix, a senior collections manager for Automotive Finance Corporation (herein referred to as AFC), a company that finances inventory for auto dealers. (V-929, V-930). The State introduced a vehicle history report depicting every financial transaction of a number of vehicles in the portfolio of AGOP, from January of 2002, through to December 2004 (Exhibit 19 B, AFC Vehicle History Detail Reports). (V-940, V-952).  The State also admitted a write-off detail report describing vehicles funded by AFC to AGOP that were sold out of trust, and cars that were eventually recovered and sold (Exhibit 19 c AFC Write offs Detail Reports. (V-941).

Throughout a two-year period, AFC financed approximately 216 cars to AGOP. (V-953). Included in the write-off detail report were six vehicles AFC did not receive money for, although they were funded by AFC and sold by AGOP. (V-947).  The report also included four vehicles that AFC recovered from the AGOP lot when the business closed.  (V-947). The total write-off amount for AGOP was $77, 076.14.  (V-948) 

The next witness was, Linda Joyner, manager of Manheim Automotive Financial Service, also called the Pensacola Auto Auction (herein after referred to as MAFS). (V-964). Her job was to oversee all of the accounts MAFS had which financed car dealers, giving them a line of credit to purchase cars with. (V-975). David Turner was listed as the principal on the MAFS account and personally guaranteed the credit obligation. (V-966). Mark Turner was authorized to purchase vehicles for resale. (V-966). From the time she began working at MAFS, she came to know the Appellant, as he bought and sold a lot of cars through MAFS. (V-976).  On one occasion, Linda Joyner had a meeting with Mark Turner and David Turner, when they applied for a line increase on their account. (V-976). At that meeting she told Mark and David Turner that there was an AGOP, which was a D/B/A account and an AGOP Incorporated and she needed clarification on whether they were the same or different companies. She testified that she did receive an answer to the question. (V-978). Up until the latter part of December of 2003, AGOP had a good account with MAFS. (V-984). 

David Turner was recalled by the State. (V-986). David Turner signed State Exhibit 19a, (AFC Dealer Agreements), as President of AGOP, Incorporated, D/B/A, AGOP.  (V-990).  He denied incorporating the company for Mark Turner to operate under. (V-991).  When asked whether he made it clear to Linda Joyner that there were two companies. One, AGOP, which was his and the other, AGOP, Inc. or AGOP, Inc, which was Mark Turners, he said: “I thought I made it clear but I think she might have been as confused as I was.” He said that he was AGOP and that he did not remember whether it came up in the discussion whether Mark Turner was AGOP, Inc. (V-992).

Linda Joyner was recalled to offer evidence for the purposes of impeachment. (V-993).  She met, at one time, with Appellant and David Turner concerning a possible increase in the credit line with MAFS, when an issue came up regarding the existence of two company names: AGOP, and AGOP, Incorporated. (V-994). Appellant and David Turner explained to her that AGOP, Inc. was Mark Turner’s company, and AGOP was David Turner’s company. (V-995).  Both of them made this clarification to her. David Turner said AGOP on Pensacola, Inc. was separate from the sole proprietorship. (V-995). Both David and Mark Turner agreed that David Turner owned AGOP and that Mark Turner owned AGOP, Incorporated. (V-1000).

Next, the State recalled Mike Adkins. He had prepared a summary of vehicles that were financed by AFC, sold by AGOP, and money was collected, but not paid to AFC, (State Exhibit 19e, 6 Vehicle Transactions). (VI-1011). As to one of these vehicles, the McFadden vehicle, money was collected and deposited into David Turner’s Bank of America bank account. (VI-1012). As to the rest of the vehicles on this summary, the collected money was deposited into the AGOP, Bank of Pensacola account, 182. (VI-1014).  The oldest of these deposits appears to be November 28, (2003) and the rest appear to be from December 3rd to December 11, 2003. (VI-1016). Mike Adkins also prepared a summary of transactions involving 32 vehicles from Pete Moore Chevrolet sold by AGOP. Funds from one of these vehicles, the Cantrell vehicle, were also deposited into David Turner’s (Bank of America) account. (VI-1012, VI-1013).

Appellant, upon hearing that Bruce Thompson from the DMV would be called for the third time for, “Details on the tag research”, stated his continuing objection to the cumulative DMV testimony. (VI-1028). The State recalled Bruce Thompson, from the DMV. (VI-1029). In regard to the 32 vehicle transactions involving cars from Pete Moore Chevrolet, all of the customers got possession of their vehicles. (VI-1030). None of the customers on the list of six vehicles needed assistance in getting possession or delivery of their vehicles. (VI-1031).

Next, the State recalled Sarah Williams, vice president of the deposit operations at the Bank of Pensacola. The AGOP, Bank of Pensacola 182 account, was closed on December 19, 2003. (VI-1032). When the dispute between Mark Turner and David Turner arose over the ownership of the corporation, Sarah Williams froze the account. (VI-1035). The balance at that time was $8,480.04. (VI-1035).  On December 8 (2003), there was $148,525.21 in the account. (VI-1036).  On December 10, 2003, $136,236.48 was taken from account 182 and put into a new account, account 825. (VI-1037). After December 10 (2003), checks were still clearing on the 182 account; approximately fourteen or fifteen checks were cleared. (VI-1049).  Mark Turner signed the signature card for the new account, and the name on the account was, AGOP, Incorporated. (VI-1041). $5,500 was moved from account 825 back into account 182. (VI-1042).  Later, representatives of the Bank of Pensacola closed the accounts and gave out two checks amounting to approximately $138,000 to Appellant, on the advice of Bank counsel. (VI-1042, VI-1051, VI-1052).    

The State called, Philip Bates, a lawyer for the Bank of Pensacola. (VI-1060). There was a dispute, such that both David Turner and Mark Turner each claimed ownership of the AGOP account, 182, and each claimed to be the owner of AGOP, Inc. (VI-1067). Appellant’s attorney, Mr. Chase, gave Philip Bates a copy of a CPA prepared federal income tax return for a subchapter S corporation by the name of AGOP, Inc., for the year 2002, the most recent tax return for the corporation at the time, with an appended report of shareholder income form. (VI-1074). The document was received into evidence for the limited purpose that Mr. Bates relied on it when he advised the bank on the ownership issue. (VI-1075).

The State called, Jill L’Orange, a regional operations manager at SunTrust Bank.  (VI-1078).   She provided records of an account at SunTrust Bank called James L. Chase and Associates, P.A. D/B/A Chase, Quinnell and McIver, P.A., a trust. (VI-1080). $140,000 was deposited into this account on December 21, 2003 via checks drawn on Bank of Pensacola, paid to AGOP, Inc., and endorsed by Mark Turner. The deposit also came from, in part, a check drawn on bank of Pensacola for $8,480.04 paid to AGOP, Inc. (VI-1081). Four checks, worth a total of $30,000, were drawn on this attorney trust account payable to Mark Turner on December 29, 2003. (VI-1084). Another check, payable to Chase, Quinnell, McIver, Jackson and Mark, for $10,000, with a notation that read, AGOP retainer, was deposited. (VI-1085).  There was another check, payable to Mark Turner, for $20,000 dated 1-22-04 and endorsed by Beach Community Bank.  (VI-1085).  The witness could not tell whether it was cashed or deposited, but Beach Community Bank endorsed it. (VI-1085). Also, a check, payable to AGOP, Inc. was drawn on the same account, dated 2-9-2004 for $79,216.52. (VI-1086). These checks add up to $139,216.50, the same number as the deposits. (VI-1087). 

The State then called, Judy Winter, a vice president at Beach Community Bank. (VI-1090).  She described a signature card, signed by Brian Samay, establishing ownership of an account. (VI-1093).  On January 26, 2004, $20,000, from a check payable to Mark Turner, was deposited into the account. (VI-1094). A few days later, a check for $18, 730 was drawn on this account, payable to Mark Turner. This check was then deposited into BB&T to a Car Connection Internet Sales account. (VI-1094, VI-1095).      

The next witness called was Brian Samay.  (VI-1096).  In December of 2003, he owned a car business called, Car Connection.  Appellant came to work with him around that time. (VI-1097). Appellant worked there until approximately, June of 2005, when he sold the business to Appellant for a dollar. (VI-1104).  At some point during this time Appellant gave Brian Samay a check, from an attorney, for $20,000 or $30,000. (VI-1111).  The check was used to purchase a shed, and to hook- up electricity for the business. Brian Samay wrote Appellant a check for the money remaining after the expenditures. (VI-1112).   Since appellant did not have a bank account at this point, Brian Samay recommended that he open one at BB&T.  (VI-1112).  

The State called, Jeri Connell, an operations officer with BB&T. (VI-1139).  On January 27, 2004, Mark Turner, D/B/A Car Connection Internet Sales, opened a new account with a cash deposit of $1,500. (VI-1142). This account was revised and updated on March 2, 2004, under the same name. (VI-1143). On February 3, 2004,  $18,730.30 was deposited into the account from a check drawn on the account of Samay Group, Inc., payable to Mark Turner. (VI-1144)  On, or about, February 11, 2004, there was a check deposit for approximately $79,000 from Chase, Quinnell, McIver and Jackson, P.A., payable to AGOP, Inc. and Mark Tur (sic). (VI-1146). (SE 1-J).

The State called the DMV compliance officer, Hope Lunsford, for the third time. (VI-1148).  Appellant’s objection to her testimony, on the grounds of relevancy, was sustained. (VI-1149).

The State recalled Michael Adkins.  (VI-1150).  Mr. Adkins analyzed the movement of funds from the Bank of Pensacola 182 account, to account 825, and then to SunTrust. (VI-1152). He also reviewed the records account of Car Connection at Beach Community Bank. (VI-1151).  On December 9, 2003, there was $148,348 in the Bank of Pensacola 182 account. (VI-1154). On December 10, 2003, the Bank of Pensacola, account 825 was opened, and $136,236.48 was transferred to the new account from the 182 account.  (VI-1154).  $5,500 was transferred back to the Bank of Pensacola 182 account. (VI-1155). Then, on December 15, 2003, $130,736 was moved to the James Chase SunTrust account. (VI-1155).

On February 9th, approximately $79,000 was moved from the James Chase trust account to the BB&T account. (VI-1156).  There were also some cash withdrawals, perhaps $30,000 dollars worth paid to Mark Turner, from the trust account. (VI-1163). $10,000 went to the law firm of Chase & Quinnell. (VI-1164).  A check for $20,000 was issued to Appellant, $18,730 of which was deposited into the Car Connection, BB&T account. (VI-1164).      The BB&T account was opened with a $1,500 cash deposit. $18,730 was deposited into the account, then $79,216. (VI-1165). $79,840 was spent by March 1, 2004. (VI-1166). Of the money in the BB&T account, Michael Adkins found that approximately $29,000 was related to two AFC vehicles. (VI-1169). Also, Michael Adkins stated that he traced the flow of money in that account back to four Pete Moore Chevrolet vehicles. (VI- 1169).

Next the State called Joseph Zolnoski. (VI-1196).  Joseph Zolnoski and his wife entered into an agreement to buy part of AGOP, on September 14, 2002.  (VI-1197).  Six months later the contract was rescinded. (VII-1218).

The last State witness was Roger Teate, a former AFC employee. (VII-1231). At the time when there was trouble with the AGOP account, and Mr. Teate was trying to locate vehicles, Appellant told him that he was not the owner of the corporation. (VII-1237). Although AFC had a problem with the AGOP account in late 2003, up until that time, AGOP had an excellent record with them. (VII-1232, VII-1237).

The State concluded its case. (VII-1239). 

Appellant renewed his motions for mistrial, on the basis of the cumulative effect of the DMV violations that had almost become a focal point of the trial. (VII-1240).  The Court denied the motion for mistrial. (VII-1240). The Appellant moved for judgment of acquittal with respect to Counts, 1, a-1 through 13. (VII-1240).  As there was no taking without consent.  When Mark Turner got behind on his payments to Pete Moore Chevrolet, he agreed to a note and further entered into an extension of credit.  There was no evidence presented of either a theft or intent to commit a theft. The Court denied this motion. (VII-1247). 

Appellant moved for a judgment of acquittal with respect to Counts 1, a-14 through 42. (The State confirmed that Count 1, a-43 had been dismissed.) (VII-1248). (VII-1248).  This motion was based on, again, the grounds that there was no evidence of a theft or intent to commit a theft.  (VII-1249). The Court denied the judgment of acquittal as to Counts 1, a-14 through 42.

The Appellant next moved for a judgment of acquittal with respect to Count 1, b-1 through 5, the AFC counts. (VII-1253).  Appellant was not the one who had the obligation for the proceeds of these cars, it was not his license and his name was not on a line of credit. David Turner had the legal obligation to AFC for these cars. David Turner took two checks worth over $40,000 for cars that apparently had been sold and deposited them into his account. There was no evidence of theft. (VII-1253). If there was any theft here at all it was not from AFC, but from David Turner, since he was in possession of those cars. (VI-1255). The Court denied the motion as to those counts. (VII-1262).  Appellant then argued the motion for judgment of acquittal as to Count 1, c-1 and 1, c-2. (VII-1264). Motion for judgment of acquittal was granted as to Count 1 c-1, regarding the 2000 Cadillac Escalade.  (VII-1270).   The Court denied the Motion for judgment of acquittal as to Count 1, c-2. (VII-1270).  Appellant argued that a motion for judgment of acquittal should be granted for Count 1d-1. Appellant indicated that he was selling AGOP, Inc., not AGOP. The State had not established a prima facie case that David Turner owned the corporation. (VII-1271). Appellant argued that the motion for judgment of acquittal should be granted for Count 1d-2 since there was no evidence that Appellant tried to gain the rights to AGOP by removing David Turner as the owner of the checking account.  Count 1d-3, Appellant argued, should have a motion for judgment of acquittal granted. The only evidence to this count was that Nancy Turner might have filled out the document in question, not David Turner. There was no evidence presented that she asked him to do that. Also, as Mr. Bates had testified, the fact that one is a director, an incorporator, and officer, doesn’t mean they’re an owner of the corporation. So the fact that there had been changes requested as to owner, director, wouldn’t necessarily mean that they were owners. (VII-1277). Appellant also argued that the subsections of the substantive counts had to be proved beyond a reasonable doubt. (VII-1280). The Court denied motion for judgment of acquittal as to Count 1, d-1, 1, d-2 and 1, d-3. (VII-1272, VII-1276).

The State moved to nolle-pros Count 1d-4. (VII-1278).

Appellant moved for a judgment of acquittal as to Count Two, and Count Three. (VII-1280).  Appellant argued that there was no evidence of intent for theft, no unlawful activity, nor any intent to conduct financial transactions with intent to do unlawful activity. (VII-1280).  Further, Appellant argued that the State did not actually show, in each of the subsections that the vehicles were sold by Mark Turner. (VII-1280). The State failed to establish a prima facie case on each of the Counts. The Court denied the motion for judgment of acquittal as to Count Three. (VII-1281). Nothing was ruled as to Count Two.

The defense called fifteen witnesses. The first defense witness was, Stephen Kelly Jones, a former worker at MAFS, in the technology division, and former AGOP employee. (VII-1282).  Mr. Jones showed Pete Moore and Rick Hamilton the AGOP business and sales process, when they came out to see it. (VII-1292). When Mr. Jones worked for AGOP, sometimes a long period of time would pass between the time the car was sold and before a customer would pick the car up, even if the car had been paid.  (VII-1296).  He remembered that one person took a month to pick up his car.  (VII-1299).

Appellant called Charlie Pelezo, Jr., a former AGOP employee. (VII-1309). He described the sales system that was developed at AGOP, wherein they sold cars on a website and through eBay. (VII-1313). Over the four years he worked for AGOP, Mr. Pelezo had developed templates for the business. (VII-1324).  After December of 2003, when David Turner pulled the company license, there was a meeting with Rick Hamilton, Anthony, Chris and Appellant. (VII-316, VII-1319). As a result of this meeting, Mr. Pelezo, Anthony Ramsey and Chris Bailey went to work for Pete Moore. (VII-1320). When they went to work for Pete Moore Chevrolet, they took over computers, cameras, and everything they had used in the AGOP business.  (VII-1321). When they went to work for Pete Moore Chevrolet they used the AGOP templates, servers, and website,  “everything was the same.” (VII-1323).

Next, Appellant called Scott Miller.  (VII-1345). He began working with appellant in 1999, or 2000. (VII-1348).  He gave Appellant technical help with the AGOP’s eBay operations, and helped him develop a web site to save money on hosting fees. (VII-1350).  He also helped Appellant develop a set of templates, set up eBay auctions, and several servers. (VII-1352, VII-1353). It was Appellant’s server that later hosted Pete Moore’s Web site.  (VII-1357). Mr. Miller also set up websites for AGOP auctions. (VII-1354). David Turner had no involvement, at all, with any of these processes. (VII-1353). 

Annette Crews, former Branch Manager with Horizon Bank, and then Bank of Pensacola testified that she met both David and Mark Turner when they came in to talk about opening the 182 account. (VII-1379). Thereafter, she saw Appellant, a lot, when he came into the branch to make deposits. (VII-1375). After the signature card for the account was updated, Mark Turner was the only authorized signer. (1386). Annette Crews had no recollection of Mark Turner ever requesting that David Turner’s name be taken off the account. (VII-1379). In December of 2003, there was nothing precluding Appellant from taking all of the money out of the account, because he was a signer. (VII-1382).

The AGOP account, 825, was opened December 10, 2003. (VII-1381).  Thereafter, approximately $5,500 was transferred from account 825 back to account 182. (VII-1383).

Daryl Lynchard, a certified public accountant testified that he prepared a U.S. Federal tax return for Appellant, for AGOP, in 2000. (VIII-1411).

Mike Evers testified that he was the owner and operator of Maaco Auto and Collision Shop. (VIII-1438). He did paint and body- work for AGOP, for most of the time the business was open. (VIII-1439, VIII-1440).  When the business closed, Appellant went to see Mr. Evers, and paid him all bills that were owed. (VIII-1441). 

Certified public accountant, Marvin Beasley, Jr. testified that after the Zolnoskis had purchased a part of the AGOP business, they asked him to review some historical financial information and give a monetary value to the company. At the time he was looking at the value of the property, it was his understanding that Appellant was the owner of the corporation. (VIII-1475).

On March 12, 2008, the Court held proceedings whereby the Defense attorney cross-examined David Turner regarding the start of AGOP. (IV of V-649). David Turner stated that he and his brother started the business together sometime in 1998. (IV of V-648). He testified that he did not come to Mark Turner with the idea to open AGOP. (IV of V-648). David Turner got a license for AGOP and the business was put out at Mark Turner’s house. David Turner kept his State Line wholesale business in Alabama. (IV of V-650).

Appellant called Magdalyn Turner, Appellant’s mother, to proffer testimony for impeachment purposes regarding David Turner’s testimony that Appellant came to him to get a license. (VIII-1482). She then testified in front of the jury that several years ago, when he was leaving his job in a factory, David Turner asked Appellant if he would teach him the car business and that he was going to get a license in David’s name so that Mark Turner could work under it. (VIII-1511)

Appellant called William Craig Cooper. (VIII-1504).  Mr. Cooper bought a car from the AGOP in December 2003 or early January 2004 that his father had located through the Internet. (VIII-1505). Mr. Cooper took possession of the car at the AGOP car lot, then someone, possibly named Chris, directed him to over to Pete Moore Chevrolet, where he paid Pete Moore Chevrolet for the car. (VIII-1506).

The next witness was Magdalyn Turner, the mother of Appellant. (VIII-1510). David Turner told her that he had asked Appellant to teach him the car business, and that he was going to get a license so that Appellant could work under it. (VIII-1512).

Appellant testified. (VIII-1514). Appellant has been in the car business since 1979. (VIII-1515). David Turner asked him to help with some wholesaling and said that he would get a retail license in his name. (VIII-1517). Subsequently, the brothers opened an account with Horizon Bank under the name AGOP. (VIII-1517, VIII-1518). David Turner’s name was on the account because his name was on the dealer license. (VIII-1518, VIII-1519). Although there was a signature line for his brother to sign, he doesn’t think he ever did. (VIII-1572). It was Appellant’s understanding that he was the owner of AGOP. (VIII-1518).

After he and his brother talked about it, Appellant incorporated AGOP at the end of 1999. (VIII-1519, VIII-1530). He signed the corporate resolution for the 182 account by updating the signature card and signing the papers. (VIII-1571). When AGOP first opened, his brother rarely spent any time on the lot. (VIII-1525). Later on his brother came by from time to time. (VIII-1529). David Turner had another business, State Line Wholesale, or AGOP Wholesale, in Alabama, that he ran out of his home in Milton. (VIII-1518, VIII-1520). David Turner had no part in the Internet business. (VIII-1567). David Turner did not set up the business, he did not deal with it, and he did not pay for any it. Neither did he list cars, sell cars, nor work the computers. (VIII-1567, VIII-1568). Also, David Turner never had any stock certificates for shares in the corporation. (IX-1706).

Appellant signed, negotiated and paid for all the AGOP leases. (VIII-1526, VIII-1527). Appellant was the one who paid everything for AGOP, including Internet service listings, eBay services, and insurance. (VIII-1532, VIII-1534, VIII-1535).  He was also the one who wrote checks to the employees and paid for the DMV license renewal. (VIII-1536, VIII-1537).  The line of credit for MAFS, and for AFC, was in David Turner’s name because credit was only given to licensed dealers. (VIII-1539).

David Turner confirmed that Appellant was the owner of AGOP, Inc., and he acknowledged that there were two companies. (VIII-1540). At the time, his brother knew that he was looking to sell the Internet portion of AGOP, Inc, including his farm. (VIII-1540). In January of 2003, when he was getting ready to sell his business, Appellant filed a uniform business report with the Secretary of State. (IX-1705). He also restructured his corporation, on January 15, 2003, by taking David Turner off and putting himself on as director. (VIII-1564, VIII-1565). He had many talks with David Turner regarding selling the business to the Zolnoskis. (VIII-1567). After months of showing Mr. Zolnoski the business he and Appellant came to an agreement regarding the purchase of half of the business. (VIII-1546). The agreement was rescinded on March 18, 2003. (VIII-1560).

Appellant met Rick Hamilton around 1982. (IX-1610). They were close personally and professionally for twenty something years. (IX-1611). Appellant was the best man at Mr. Hamilton’s wedding. (IX-1607). Rick Hamilton used to call Appellant and tell him they had cars, trade-ins, or cars that had been on the lot for a while, that he would come in and buy cars. (IX-1612, IX-1613). Over the years, Appellant borrowed money from Rick Hamilton, and at one point, he borrowed $300,000. (IX-1613). Rick Hamilton once wrote Appellant a check for $140,095 for eighteen cars.  Appellant, in return, gave him the car titles, as security on the note. (IX-1616).   Rick Hamilton loaned Appellant $69,045 at one time, and 105,000 another. (IX-1617).  In return, Appellant wrote Rick Turner a series of checks that Rick Hamilton would hold. (IX-1618, IX-1619). For twenty years or so Appellant and Rick Hamilton never had a problem that wasn’t worked out.  There were many loans for numerous vehicles and there was never a problem. (IX-1720). 

After the deal with the Zolnoskis was rescinded, Appellant talked to Mr. Hamilton about the possibility of selling the Internet business to Pete Moore. (IX-1620). As a result, Pete Moore and Rick Hamilton toured the farm where the business was located. (IX-1620). Rick Hamilton asked him to prepare a business plan, which he did. (IX-1621). Appellant gave the business proposal to Rick Hamilton in order to offer Peter Moore the opportunity to buy half of his business. (IX-1626). 

After the March 2003 meeting, Peter Moore said that he would help Appellant, and Pete Moore Chevrolet started sending him more and more cars to sell. (IX-1674).   Appellant had agreed to pay $3,000 a month, but he always paid more. (IX-1672).  By September of 2003, he only owed $18,000, according to the agreement, but Appellant had actually paid about $40,000 by then. (IX-1672).  If he hadn’t been told not to worry about the debt, Appellant would have sold his paid-for inventory in order to settle. (IX-1672). Appellant never had any intent to either temporarily or permanently deprive Pete Moore of the vehicles. (IX-1673).

As of December 2003, AGOP was current on payments to AFC and to MAFS. (IX-1675). Then, David Turner wanted Appellant to loan him more money, and Appellant said no. (IX-1673). The dispute with his brother was caused by the fact that he wouldn’t give him any more money. (IX-1678). David Turner, from time to time, borrowed money by writing himself a check from the AGOP account. (VIII-1593). Appellant presumed that David Turner was still on the 182 account, so on December 10, 2003, he went to the bank and moved the $136,236.48 from the 182 account into a new account, 825, for safekeeping. (IX-1681, X-1091).  He did not close the 182 account because there were somewhere between $40 and $50,000 in outstanding checks. (IX-1681). Money wires kept coming into the 182 account to cover these bills. (IX-1681). On December 19th Appellant asked Annette Crews, from the Bank of Pensacola, to make sure that all of his checks cleared. (IX-1682). He authorized the bank to make transfers back to the 182 account to cover checks. (X-1901). Appellant never wrote any checks on that account nor did he make any withdrawals. (X-1901). Prior to moving the funds to the new account, there was nothing prohibiting Appellant from taking all of the money out. (IX-1685). When he transferred money from the 182 account to the 825 account, Appellant relied on the advice of counsel. (X-1921).

On December 12, 2003, David Turner changed the documents on the corporation (X-1848). When David Turner put his name back on as director of the AGOP Corporation, the banks froze the money in the account. (IX-1705). Appellant was thereafter notified to come and pick up the remaining funds that were left in account182. (IX-1686).  He picked up two checks payable to AGOP, Inc. one for, $8,408.04, and one for, $130,736.48. (IX-1686).  Appellant had been consulting with his attorney, Jim Chase, at that time, and had provided him with records indicating his ownership of AGOP, Inc. (IX-1687).

On December 21st, Appellant took the two cashier’s checks to his attorney, Jim Chase, and put them in his trust account. (IX-1689, X-1849). At the time he moved the money into his attorney’s trust account, Appellant believed that it was his money. (X-1894).  Of the $139,000 that was put into the lawyer’s account, $40,000 was taken out in cash. (X-1851). Appellant paid venders, paid some bills, paid himself, and his employee who was delivering cars, monitoring the website and helping with customers.  (X-1852, X-1857).

When the business was closed in December, Appellant had no access to the corporate records, as David Turner had taken them. (IX-1706). Even though David Turner had taken his checkbook, he found out whom he owed money to, and began to pay them. (IX-1710). Appellant paid anyone that he felt the company owed money to, such as car detailers. (X-1899).  In January of 2004, he paid a Fed Ex bill, and some other bills. (IX-1710). As of January 7, 2004, after the business was closed, appellant was still helping AGOP collect on debts. (IX-1669).

Appellant paid Mr. Chase a $10,000 fee. (IX-1683).  Also, he deposited $20,000 into Bryan Samay’s BB & T Car Connection account, to buy a shed for him to work out of. (IX-1691). Mr. Samay deposited the check, and sent the remaining expenses, after the building was paid for, to Appellant. (IX-1691).  At that point, Appellant had opened a checking account at BB&T and he put the check from Mr. Samay into this new account. (IX-1691). Appellant bought Mr. Samay’s business about half way through 2005, and got a license shortly after that. (IX-1692).

After his brother pulled the license, Appellant started consulting with Rick Hamilton about the best thing to do next. (IX-1692). As checks came into AGOP, he went across the street and gave them to Rick and Roxanne. (IX-1693). Appellant agreed with Rick Hamilton that Pete Moore Chevrolet would either hire him, or they would buy his business. (IX-1694). Appellant met with Rick Hamilton and some employees and explained to them that they would be going to work for Pete Moore Chevrolet and that Appellant might or might not be going to work there too. (IX-1695).  He moved his equipment over to Pete Moore Chevrolet. (IX-1696). They took all the cars to Pete Moore Chevrolet, including the thirty-two sold cars that had not yet been delivered, and began to deliver them. (IX-1695, IX-1697). Customers were still coming in steadily to AGOP, and Appellant directed them over to Pete Moore Chevrolet. (IX-1695). Pete Moore Chevrolet used Appellant’s Internet server that appellant was paying for, and they took his system and put it on theirs. (IX-1699). After Pete Moore Chevrolet took over the business, they had an agreement that Pete Moore Chevrolet would pay AGOP’s debts. (X-1860). Pete Moore Chevrolet took over his business, but neither hired Appellant nor gave him compensation for his business. (IX-1696). Appellant sued Pete Moore for stealing the AGOP business. (IX-1700).  Pete Moore Chevrolet sued David Turner. (IX-1700).  But Pete Moore has never sued Appellant for any of the vehicles. (IX-1700). 

Appellant testified that he has been convicted of a felony or a crime involving dishonesty, thirty-one times. (IX-1738).

Throughout the time he worked with AFC, up until his brother pulled the license, in early December, AGOP had never failed to pay for the cars on its line of credit. (IX-1684). All of the AFC cars that were charged were on the lot on or around December 5th, 2003. Although the people had paid for these cars, they had not signed the paperwork, so AGOP could not yet deliver them. Appellant and Rick Hamilton made a deal, as part of the agreement in the taking over of his business, that Pete Moore Chevrolet would deliver the cars. (X-1898). Pete Moore Chevrolet did deliver the cars as agreed. (X-1898). Appellant never had any intention of either temporarily or permanently depriving AFC of any funds. (IX-1685). 

Appellant stated that he was not guilty of each and every count of the fifth amended information. (IX-1714-IX-1719). As to count 1, d-3, Appellant did remove David Turner from the corporation, but did not attempt to obtain his property, either temporarily or permanently, because it was Appellant’s corporation. (IX-1716). During the period of time alleged in count 3, b-1 and 3, b-2, Appellant’s intent was to protect the property, settle with the entities and to move forward with business. (IX-1719). Had his brother not taken the company checkbook and the license, he would have continued to do business with Rick Hamilton, Pete Moore, and the others, just as he had in the past. (X-1915). 

When his employees, computers, server, etc. went over to Pete Moore Chevrolet, his intention was to make sure everyone got their cars and to try to settle his debts with Rick Hamilton and Pete Moore. (X-1915). Appellant was paid –up well ahead of schedule on his debts, and Rick said that they would work everything out. (X-1916).  Appellant relied on, during the course of their dealings, representations made to him by Rick Hamilton and Pete Moore. (X-1921).

Appellant then called Roxanne Sawyer, the comptroller for Pete Moore Chevrolet. (X-1923). Ms. Sawyer said that after September 2003, and as late as December 2003, Appellant continued to work down the debt owed to Pete Moore Chevrolet. (X-1929).

The Appellant rested. (X-1956).

The State called its first of seven rebuttal witnesses, Michael Guttmann. (X-1957). The Court sustained an objection to repetition. Mark Turner countersued Pete Moore in the fall of 2004 after David Turner sued Appellant. (X-1959).

Next, the State called Anthony Ramsey. (X-1960). While he worked at AGOP, there were occasions when people didn’t pick up their vehicles within the first week, week-and-a-half, and one in seven or eight buyers would pick up their vehicle beyond two weeks. (X-1962). People would sometimes come to get their car, and didn’t like it, so they changed their mind and got out of the deal. This would happen perhaps once or twice a month. (X-1963).

The State then called David Hammond, salesman for Pete Moore Chevrolet. (X-1968). When the three employees from AGOP came over to Pete Moore Chevrolet, sales at Pete Moore dramatically increased. (X-1978).

Next, the State called Richard Hamilton. He did not have a discussion with Mark Turner regarding a transfer of AGOP to Pete Moore to pay down his debt. (X-1981).

The State next called Peter Moore. (X-1983).  Peter Moore did not recall seeing a business proposal. (X-1984). When AGOP closed, there was no agreement to take over, or to purchase, the business. (X-1985). After AGOP went out of business Peter Moore might have said something like, “Let the lawyers work it out”, to Appellant. (X-1986).

The last witness called by the State was Tracy Mitchell, a tax specialist with the State of Florida Department of Revenue. (XI-2008). A person who is engaged in a business of selling used cars in Escambia County is required to register to collect and remit taxes and to report all sales. (XI-2009). The AGOP account was canceled either October 31st or November 1st of 2003. (XI-2013).

The State rested its case. (XI-2021).

The Appellant renewed his motions for judgment of acquittal made at the close of the State’s case in chief, on the same basis, that the evidence failed to prove Appellant intentionally took funds from Pete Moore Chevrolet, AGOP, or AFC, or that he stole the business from his brother, David Turner. (XI-2022). With respect to count One, Appellant adopted the arguments made in the past. Appellant also renewed his motion as to count Two. Appellant argued that the State neither established unlawful activity nor the intent to conduct financial transactions in order to carry out unlawful activity. (XI-2022). Appellant also renewed his motion as to count Three, that there was no evidence of theft presented and no evidence of any unlawful financial transactions. Neither was there any criminal intent to use the proceeds of that activity to establish a business. (XI-2023). Appellant argued that there was no evidence presented to show the vehicles were not sold in good faith. There was no evidence to show that any of the vehicles were taken, or any of the proceeds of the vehicles or the company was taken with the intent to commit theft. (XI-2023). Appellant argued also that the State had failed to show a pattern of racketeering activity. (XI-2024).

The Appellant renewed his motion for mistrial (XI-2022). The Court denied the renewed motion for mistrial as to uncharged misconduct and the ongoing cumulative effect of the evidence regarding DMV violations and uncharged misconduct. (XI-2036).

The State nolle prossed Count 1,C 2, (XI-2024). 

The Court granted the motion for judgment of acquittal as to count 1,D 2. (XI-2036). The Court denied the judgment of acquittal as to all other counts. (XI-2036).

Next, jury instructions were discussed. (XI-2037). The State filed proposed Preliminary Instructions and Final Instructions on March 18, 2008. (IV of V-668).

The Defendant’s First Requested Jury Instruction, Good Faith Defense to Charge of Intent to Defraud, was granted, as amended, on March 18, 2007(sic). (IV of V-665). The Defendant’s Second Requested Jury Instruction, Good Faith Reliance Upon Advice of Counsel, was denied. (IV of V-666). The Defendant’s Third Requested Jury Instruction, requesting that a theft requires proof of a taking, animo furandi, with intent to steel, was also denied. (IV of V-667, XI-2061). Appellant objected to the Court’s decisions denying his jury instructions requests. (XI- 2061). On March 18, 2008, Appellant filed his Fourth Requested Jury Instruction along with corresponding case law. The request was for the instruction that the Defendant was only on trial for the offenses alleged in the information and was not on trial for any misconduct not alleged or charged in the information. (IV of V-654). The Court granted this instruction request. (XI-2086).

Appellant moved for a dismissal under the statute of limitations, on counts 1d- 1 and Id- 3, the theft of the business, which had no value. (XI-2067). The Court reserved ruling on the motion. (XI-2067).

Next the parties discussed the verdict form with the Court. (XI-2082). The State filed the Verdict Form on March 18, 2008. (IV of V-668).  Appellant argued that the verdict form should contain the direction that the jurors must unanimously agree on two of the incidents of racketeering conduct, of the underlying charge. (XI-2083).  The Court denied to put this instruction on the verdict form, but instead agreed to add language addressing this issue to the jury instructions. (XI-2083).

The State mentioned that the problem with Counts 3a-3 and 3a-4 was that Michael Adkins could not trace those two cars. (XI-2094). The State then said that the car relating to Count 3a-3 was in. (XI-2094). Appellant moved for a judgment of acquittal on those counts: 3a-3 and 3a-4. (XI-2094). Count 3a-4 was nolle prossed by the State. (XI-2095). The State’s Fifth Amended Information was filed on March 19, 2008. (IV of V-693).

The State began its closing argument. (XI-2102).

Defense made its closing arguments. (XI-2134).

The State began its rebuttal argument. (XI-2171).  During rebuttal, the State made a statement that: “The Judge is not going to tell you that if somebody steals from you, you can sue them. Pete Moore chose not to. Guess what: What happened to him was a crime. What happened to him was a crime. He sued on the mortgage, but he didn’t sue to recover for these cars. You know why? Because I brought this case.” Appellant immediately objected to this statement and the Court sustained the objection. (XI-2175). At the end of the State’s rebuttal argument, Appellant, at the bench, asked for a mistrial on this matter. (XI-2190). The State declared that it wouldn’t have a problem with an instruction to the jury, and apologized. (XI-2191). The Court agreed that it was not a proper comment, but denied the motion for mistrial stating: “I will not grant a motion for mistrial given it’s an eight day long trial, and we have all the other evidence in this matter.” The Court instructed the jury that the evidence did not support the Assistant State Attorney’s comment, and that they were to disregard the comment and not consider it in any way whatsoever in this case. (XII-2199).

The Court read the jury the final jury instructions. (XII-2199).  The Court then went over the verdict form with the jury. (XII-2217). After the jurors were excused for the night, Appellant raised the issue that the instruction regarding a finding of the value of the theft of property being over $300 or under $300 did not appear on the verdict form. (XII-2223). The Court was troubled by the fact that there was nowhere in the instructions that stated that a determination of less than $300 meant not guilty. (XII-2229). Appellant raised the issue that even if you allege grand theft, a lesser instruction on petit theft is standard. (XII-2230). The State argued that that was not the case with predicate offenses. (XII-2230). The Court noted that, because the jury was told that they determine value, they had the ability to determine a value of less than $300. (XII-2230). The State acknowledged the significance of the issue saying, “I think this is a bigger problem than we might imagine.” (XII-2231). An off the record discussion was held. (XII-2233).  The Court decided that the verdict form would look exactly as it did as it was read to the jurors, except that under count Two, the following language would be added: “In order to find the defendant guilty of this charge, you must determine that the value of the property involved in the theft was $300 or more.” (XII-2233). There was no objection to this language. (XII-2233).

On March 19, 2008, the jury found the defendant, Mark Turner, guilty of Count One, guilty of Count Two, and guilty of Count Three, as charged. (XII-2236, IV of V-709).

Appellant raised the issue that the jury finding of guilty in Count Two, conducting or attempting to conduct unlawful financial transactions that totaled or exceeded $100,000, was contrary to the weight of the evidence. Based on the jury’s own proof, he argued, the Appellant should have been found guilty of, if any thing, a lesser offense of more than $50,000 but less than $200,000. (Supp. Index-36).   The Court denied the request to modify its earlier ruling denying the motion for new trial. (Supp. Index-37).

Orders on the State’s fifth motion in limine and on State’s fourth and sixth motion in limine, as well as the Appellant’s motion in limine regarding Mike Adkins’ testimony, were filed on March 18, 2008. (IV of V-688).

The Motion for Judgment of Acquittal was filed on March 28, 2008. (IV of V-716). Appellant argued that, with respect to Count One, the evidence was insufficient to establish the requisite intent for the alleged crimes. (IV of V-717). With respect to Count Two, Appellant argued that since the evidence was insufficient in Count One to establish intent to either temporarily or permanently deprives the owners of the property, the funds alleged were not the proceeds of unlawful activity. Furthermore, there was no requisite intent established for this Count. (IV of V-718). With respect to Count Three, Appellant reasserted arguments made previously and further asserted insufficient evidence to establish criminal intent. (IV of V-718). The Court denied the Motion for Judgment of Acquittal. (V of V-843).

Appellant filed a Motion for New Trial on the following grounds: 1) the verdict was contrary to the law and/or the weight of the evidence; 2) The Court erred in decisions of law when it; a) denied the Defendant’s Motion for Judgment of Acquittal at the close of the State’s case in chief and; b) denied the Judgment of Acquittal at the close of all the evidence, and; c) denied the Defendant’s motions for mistrial.  (IV of V-720). Appellant filed a Memorandum of Law in Support of Motion for New Trial Based on Prosecutorial Misconduct During Closing Arguments. (IV of V-723).

On April 29, 2008, Court heard argument regarding the Motion for New Trial. In opening statement, Appellant emphasized the issue of specific intent and whether or not Appellant had intent to commit theft of the parties. (IV of V-735). Defense attorney noted that Appellant signed a note to Pete Moore Chevrolet, as well as a mortgage when he got behind on the payments, and that Pete Moore Chevrolet continued to provide vehicles to Mark Turner for him to sell. (IV of V-735). Pete Moore Chevrolet took his employees, his computers, his server, et cetera, and Appellant thought he had an agreement with Pete Moore Chevrolet. David Turner sued bank of Pensacola and Mark Turner. Mark Turner then sued David Turner and Pete Moore for taking his business. (IV of V-736). It was not until about two years after the civil suit was filed that Appellant was ever charged in the first information, and Pete Moore Chevrolet was not even listed as a victim at that time. (IV of V-738, V-740).  He was not listed as a victim until May 21st, 2007. (IV of V-740). Even though Appellant sued Pete Moore Chevrolet, Pete Moore never sued him back. (IV of V-743). The civil litigation had been going on long before the State brought charges against Appellant in which Pete Moore Chevrolet was named as a victim.   The civil suit was marked for identification. Although it wasn’t a matter of record during the trial, the State was well aware of the existence of these facts. (IV of V-740).  Therefore, Appellant argued, when the Prosecutor said, in his closing argument, that Pete Moore Chevrolet didn’t bring a civil suit because the State brought the civil charges, he knew that it was not true. Indeed, in the State’s first motion in limine, the State moved the Court to prohibit evidence that the victims, including Pete Moore Chevrolet, had not filed a criminal complaint. (IV of V-742). 

Appellant also argued that it was error for the Court to admit evidence of uncharged wrongs and acts throughout the course of the trial, regarding sales tax and DMV violations that at one point became a feature of the trial. (IV of V-744).

The Court admitted that the Assistant State Attorney’s comment was prejudicial, but denied the motion for new trial. (IV of V-754, V of V-844).

Appellant filed, Memorandum of Law in Support of Downward Departure. (IV of V-728).

The parties argued the issue of downward departure before the Court on May 6, 2008. (V of V-800). In Appellant’s argument he noted that there would be no case at all if David Turner had not pulled the cars off the lot. (V of V-806).  Also, Pete Moore Chevrolet and Appellant conducted business the same way for years. Even when they found out Appellant was behind in payments, they still didn’t report it, and they didn’t stop him. (V of V-803). Appellant also argued that the Court could consider, for mitigating purposes, the offenses as one transaction. (V of V-809).  Next the Court considered whether the evidence would support the departures, as a matter of law. (V of V-811). The Court found that it would take into consideration the interrelatedness of all of the charges, and for that reason, the sentence would be concurrent. (V of V-826). The Judge imposed a sentence of 12 and a half years on each count to run concurrently, followed by a total of 17 and a half years probation. (V of V-826, V or V-849). Next, the Court took up the issue of post trial release. (V of V-831). The Court imposed a supersedeas bond in the amount of $300,000. (V of V-838).

On May 6, 2008, the Court also held proceedings regarding the issue of the scoresheet. (V of V-779).  The judge granted the request, finding that he was unable to determine as a matter of law that the jury found that the first offense was one of the predicate offenses for the RICO conviction. All of the other underlying offenses alleged in the RICO count were after the three-year cut-off period.  Since there wasn’t a specific finding that he was guilty of any particular theft charged, the Court could not satisfactorily determine that there was a serious felony committed within the three years limit, beginning before the end of Appellant’s period of supervision from the prior felony. (V of V-784, V of V-785, V-786). That ruling reduced the points to 213.8 and resulted in the lowest permissible prison sentence of 139.35 months. (V of V-784).

Next the Court took up the issue of restitution and investigative costs. (V of V-789). The Order for Restitution was filed on July 14, 2008. (V of V-361).  The Appellant filed a Notice of Objection to Restitution Amount, on June 4, 2008. (V of V-365) The Court gave Appellant thirty days to submit a memorandum outlining any additional credits or offsets regarding restitution. (V of V-792).

On June 17, 2008, the Court held a proceeding on the Appellant’s objection to restitution.  (Supp. Record - 892).

Appellant called Richard Hamilton, general manager of Pete Moore Chevrolet. (Supp. Record - 894).  He remembered Appellant saying, at the time Appellant brought him over titles that were owned by AGOP, that there was a car or two that there was money left in that shouldn’t be repossessed. (Supp. Record- 895).  He did not recall whether or not Appellant delivered any car titles to him that had been paid for. (Supp. Record- 897).

The proceedings then focused on the general issue of restitution. (Supp. Record- 905).  At the time of trial, the Defense requested, as to Count One and Count Two, that the Court instruct them as to specific findings as to which subsections they’re finding guilty under. (Supp. Record- 905).  The State argued that as long as they found two of those counts and each of them unanimously agreed, then that would be sufficient. But for restitution purposes, it is unclear what the jury found as to those elements it is unknown. It is neither clear which counts the jury found, nor how many. (Supp. Record- 906).  Count Two lists theft of property of Pete Moore, in A-1 through 6, (7 being dismissed by the State), and it lists theft of property from Automotive Finance, 1, 2 and 3. The total amount of the nine-vehicle transactions amount to $83,643.73, which is less than the jury found. The jury found more than $100,000. (Supp. Record- 907). Thus, Appellant argued the total restitution could not be more than $83,000, and since Appellant has already paid $205,000, he owes no restitution. (Supp. Record- 912).  The State conceded that there was a findings issue with regard to whether the transactions totaled $100,000. (Supp. Record- 912). The State conceded that the Camry, bought by Larissa Kushovo, with a charge of $7,350 should come out of the calculation. (Supp. Record- 917). That amount was not shown in State’s exhibit 3, Wholesale Receivables and Used Car inventory, submitted initially at sentencing so that adjustment would also have to be made. (Supp. Record- 918). The Court stated that it would come off the net amount to Pete Moore of  $185,523.38. If it did come off the net, it would leave a net to Pete Moore of $178,000. (Supp. Record- 919).  As to the AFC Group, the net was $33,715.73, with the McFadden vehicle being already deducted. (Supp. Record- 919). Appellant argued that since there were no special findings as to substantive counts, the jury just found Appellant guilty of two, or at least two incidents, it doesn’t make sense for the court to award restitution as to each and every count since there was no finding of fact by the jury. (Supp. Record- 919). The Court noted that it was unaware that the law requires specific findings, but once a conviction has occurred the standard for restitution is a preponderance of the evidence. (Supp. Record- 920).  The court then overruled the objection and found that the evidence was sufficient to establish, by the preponderance, that the balance is the $185, 523.38 minus the $7,350 for the Camry, which should have been removed from that but wasn’t. (Supp. Record- 920). Appellant brought up the fact that the Mitsubishi Mirage, with a charge of $3,250, was nolle prossed. (Supp. Record- 920). Appellant argued that: 1) the Court could not fix a certain amount under Count One; and 2) that Count Two specifically identifies cars for which the State alleged that the proceeds of those were used. Therefore, it makes sense to assume that the jury found, for those to be illegal proceeds, that those cars were, in effect, withheld or taken or misappropriated. (Supp. Record- 923).  Those nine cars totaled $83,643.73, but he has already paid $205,684.42, so they have failed to carry their burden as to restitution. (Supp. Record- 924). Further, they were assuming all of his bills when they took over his business. (Supp. Record- 924). The Court ordered the restitution to Pete Moore Chevrolet to be $185,523.38 minus the $7,350 for the Camry. And restitution to AFC was the amount of $33,715.73. (Supp. Record- 925). The Court gave credit to the defendant for the $205,684.42. (Supp. Record- 926).

A Notice of Appeal was filed May 6, 2008. (V of V-366).  A Notice of Cross–Appeal was filed on May 12, 2008. (V of V-368).

ISSUE I. THE COURT ERRED IN DENYING APPELLANT’S MOTIONS FOR MISTRIAL AND ADMITTING EVIDENCE OF OTHER CRIMES, WRONGS, AND ACTS OF APPELLANT

Standard Of Review.  Appellant claims fundamental error.      “The admission of excessive evidence of other crimes to the extent that it becomes a ‘feature of the trial,’ especially in the absence of a limiting instruction at the time such evidence is received, has been recognized as fundamental error requiring reversal.” Travers v. State, 578 So.2d 793, 797 (Fla. 1st DCA), rev. denied, 584 So.2d 1000 (1991) April 18, 1991; See also, Green v. State, 228 So.2d 397 (Fla.2d DCA 1969).

“A trial court's ruling on a motion for mistrial is subject to an abuse of discretion standard of review.”  Perez v. State, 919 So.2d 347, 363 (Fla.2005)

The Merits. The trial court erred in admitting evidence of other crimes, wrongs and bad acts by the defendant. Appellant repeatedly objected to the testimony and eventually moved for a mistrial.  The improperly admitted evidence included: DMV violations, tax evasion and various misconduct not charged in the information. This evidence became a feature of the trial and Appellant was denied a fair and impartial trial.

“To minimize the risk of a wrongful conviction, the similar fact evidence must meet a strict standard of relevance.” Also:  “The evidence must be relevant to a material fact in issue such as identity, intent, motive, opportunity, plan, knowledge, or absence of mistake or accident. “ Heuring v. State, 513 So.2d 122, 124. See also Williams v. State, 110 So.2d 654 (Fla.1959).

Evidence of prior bad acts is inadmissible if: “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”§ 90.403, Fla. Stat. (2005), McLean v. State, 934 So.2d 1248, 1256, See also, Pratt v. State, 1 So 3d 1169, 1170, (Fla. 4th DCA 2009).

The State presented testimony from public accountant and fraud examiner, Michael Adkins. He testified that in 2003, over $200,000 from the AGOP business account went to Appellant and his wife in the form of checks, cash and credit payments for personal expenses.  He also testified that if there were personal expenses on a business account, those expenses should to be paid for by the personal account or be credited on the tax return as income.  There was no evidence that Mark or Nancy Turner paid any business expenses from their personal account, but there was testimony that none of the personal expenses were reflected as income on the Turners’ 2003 joint tax return.  This left the jury with one glaring conclusion; Appellant had not paid taxes on this income. Further, Mike Adkins repeatedly testified about a group of thirty-two cars, but there were only thirty cars charged in sub-counts 1a-14 to 1a-43. There were two extra vehicles repeatedly, erroneously, put into the same category as the charged vehicles. (See Mike Adkins testimony III-474)

The Judge erred in allowing the redundant and excessive bad acts testimony, over the objection of the Appellant, regarding payment records from AGOP accounts to continue for the purpose as the trial judge stated, “elimination” (sic). (III-504). No illumination was necessary, and none was effectively given when the testimony continued. The witness had already testified as to the amount of the purchases and explained, more than adequately, how he had characterized them. The testimony merely served to emphasize Appellant’s bad character repeatedly with each and every charge that the witness discussed. Appellant was not charged with any tax crimes nor was this information relevant to the crimes he was charged with.

When Appellant’s objection to the bad acts testimony was overruled he requested, again, a special instruction be given to the jury, as is required by Rule 90.404(2)(c). Appellant had also asked for the limiting instruction when the Notice of Intent to Offer Evidence of other Crimes was argued in the November 13th pretrial hearing. (III of V-519). When similar fact evidence is admitted, the court shall, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered. Rule 90.404(2) (c) 2, (Fla. Stat., 2008).  The trial court erred in failing to give the contemporaneous instruction.  Although the Final Jury Instructions included general directions on bad acts evidence, at the end of the seven day trial, the relevant directive given as part of the eight page instruction was so far removed in time and place that its meaning was surely diluted such that it was both insufficient and ineffective. At that point, it is unlikely that the jurors would even have been able to deduce which evidence was bad act evidence that the directive pertained to, as it was so intertwined in the trial.

The Judge also improperly allowed evidence of DMV inspection violations by the defendant. The State filed three notices of intent to offer evidence of other crimes. In the second notice, the Assistant State Attorney notified his intent to show that on three separate occasions Appellant violated provisions of Florida Statutes regulating licensed vehicles, as specified in Florida DMV Records Inspection Reports. Although these violations in no way established the crimes charged, the Assistant State Attorney argued that the inspections evidence was relevant as to intent, plan and motive. He contended that the evidence would show that because of the inspections, the defendant was put on notice that the DMV was going to move to revoke the AGOP license. Appellant objected.

At a pre-trial hearing on the State’s motion, the judge discussed his misgiving about admitting such evidence and appeared to grasp the potential gravity of the problems both with the evidence and the State’s argument explaining: “…if in fact that was communicated, that is what establishes the alleged motive and we get bogged down in details of prior violations and tied up with what do these individual violations stand for… If it really is presented only for the purpose of showing that the department was about to take some action and it was with that knowledge that he took whatever this—engaged whatever this conduct is he believed actionable, do you see?” The trial court continued: “What I’m suggesting is, you don’t need this so long as you have just the notice from the department whether it is an oral face to face notice… or whether it is a written notification…” The judge summed up his misgivings: “I think they would tend to be confusing and misleading based on what I now understand”. There was no new information subsequently introduced regarding this matter such that would have warranted the trial court to veer from this initial conclusion. Thus, in the balance determination between relevance and prejudice, under section 90.403 of the Florida Statutes, exclusion of the evidence was the proper outcome.

Accordingly, the trial court, in a written order, declared that evidence of the DMV’s actual notice to Appellant, that it was going to take action to revoke the car dealer’s license, was admissible as to intent, plan, knowledge or motive to commit the charged offenses. However, the Court ordered that evidence of the Appellant’s violation of laws regulating licensed motor vehicle dealers as shown by dealer inspection reports would not be admitted, without further showing by the State outside the presence of the jury of its relevance.  In light of this pre trial order, the State proffered the testimony of DMV compliance examiner, Hope Lunsford. Appellant objected because, the reason the State had given for attempting to introduce the dealer inspection evidence-notice that the business was going to be closed down, was absent from the testimony. Appellant objected further that the misconduct not charged was not probative and had also objected earlier on the grounds of prejudice. Here, the probative value that the State had claimed, was nonexistent, but the prejudicial value was strong. The evidence merely showed that Appellant had the propensity to violate Florida law.  Thus, the Judge erred in allowing the witness testimony.

Further, the testimony regarding car titles not being on the same premises as the cars was duplicative; it had already been clearly evinced through previous uncontested testimony. Even the trial Judge commented, “We all know that”. The only part of this testimony that was new was that the action was a violation of Florida law. Regardless, the trial Judge mistakenly noted that he did not necessarily see this information as Williams Rule evidence, but that he thought it was inextricably intertwined.  Appellant requested a contemporaneous limiting instruction regarding the DMV violations. This time the trial court properly granted Appellant’s request. However, no contemporaneous instruction was ever given.

Three DMV employees were called for the sole purpose of testifying as to these other bad acts of the defendant. One witness, Bruce Thompson the third DMV employee witness to testify about the inspections, was called even though he was present at the inspection merely as a trainee of the previously called DMV witness. The testimony was clearly cumulative and served only to keep the Defendant’s uncharged violations in the forefront of the juror’s minds.  The trainee was called back to the stand three times. The second time he was called, Appellant’s objection to the testimony was overruled.  The State proceeded to painstakingly enumerate thirty- three AGOP customers regarding possible complaints that were unrelated to any of the charges. (This information had been gathered pretrial when the State requested the DMV to call numerous customers to ask whether they had complaints). None of the AGOP customers were named victims in this case and all of them received their cars. The customer complaint testimony was admitted even though there was already a chart in evidence summarizing the information. Appellant renewed his motion for mistrial, which the Court again denied.

The trainee was called for the third time, and Appellant again objected. The Assistant State Attorney responded that the testimony was for the sake of clarifying the “tag issue”. However, no testimony was elicited on that subject. Instead, the testimony continued to keep the spotlight on Appellant’s bad acts.

Anthony Ramsey and David Turner were the fourth and fifth witnesses to testify to the same information regarding the DMV inspections. Further, a collections manager for Automotive Finance Corporation, Arthur Felix, was still another witnesses to testify to uncharged misconduct, over Appellant’s objection. His testimony included information regarding cars that Appellant was not charged with and were not relevant in any way to the facts in issue.

“The state, in introducing testimony of other crimes must not make such crimes a feature of the trial instead of an incident, so that the effect is to stray from development of facts relevant to the main issue of guilt or innocence into an attack on the defendant’s character.”  Williams v. State, 117 So.2d 473, 475 (Fla.1960).

The other crimes evidence in this case was so pervasive it went beyond the point of being an incident and become a feature of the trial.

Notably, on the day the trial began, the trial Judge voiced his concern about the amount of other crimes, wrongs and bad acts in this case, stating: “The other issue that’s different in this case, is there is a considerable amount of uncharged misconduct…” And, in deed, at the beginning of the trial, the Judge appeared to comprehend the potential danger in so much prejudicial other crimes evidence. However, as the trial went on, the court failed to give limiting instructions, even when he agreed that he would, and allowed evidence that he initially had voiced solid misgivings about, even though circumstances and information regarding the evidence had not changed.  The court erred in allowing evidence of uncharged misconduct over appellant’s objection, and in not granting Appellants motions for mistrial.

ISSUE II.  THE COURT ERRED IN GRANTING THE STATE’S

MOTION IN LIMINE PRECLUDING EVIDENCE THAT PETE MOORE CHEVROLET FAILED TO MAKE COMPLAINTS AGAINST APPELLANT.

Standard of Review. “[D]ecisions to admit or exclude evidence will not be disturbed on appeal absent an abuse of discretion.” Graves v. State, 937 So.2d 1286, 1290 (Fla. 4th DCA 2006). However, rule 90.608(1) of the Florida Evidence Code provides that a party may attack the credibility of a witness by introducing statements of the witness that are inconsistent with the witness’s present testimony. Section 90.608(1), Fla. Stat. (2008).

The Merits. A defendant in a criminal case has considerable latitude in cross-examination to elicit testimony showing the bias of a witness. See, Graves at 1290.  Further:  “[W] here a witness has filed a civil suit against the defendant or a third party (arising out of the criminal incident), inquiry into this is relevant to the witness' motivation in testifying at the criminal trial.” Nelson v. State, 704 So.2d 752, 753 (Fla. 5th DCA 1998).

The trial court committed reversible error in granting the State's motion in limine precluding Defendant from offering evidence that alleged victim Pete Moore Chevrolet failed to make either a civil or criminal complaint against Defendant.  Pete Moore Chevrolet was a primary victim and a major State witness.  Appellant’s defense at trial was that he did not have the requisite criminal intent to commit theft, the Appellant was not committing theft, but merely conducting business with Pete Moore under the same parameters as he always had, which included a loan system between Pete Moore Chevrolet and Appellant. Testimony regarding the fact that Pete Moore Chevrolet never filed a complaint or lawsuit against Appellant more than likely would have brought great weight to the Defense theory that the parties were conducting business as usual, and also to the theory that Pete Moore Chevrolet had appropriated Appellant’s business.  The trial court's ruling prevented questioning designed to shed light on the inconsistent and puzzling actions of a key State witness and a major victim. Testimony that Pete Moore Chevrolet, an experienced businessman, had not filed any sort of complaint against Appellant was relevant, and would have provided a proper subject upon which to impeach Peter Moore’s testimony. It cannot be said that the improper exclusion of this evidence, which cut to the heart of Appellant’s case, was harmless beyond a reasonable doubt. See, State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

ISSUE III.  THE JURY INSTRUCTIONS WERE CONFUSING AND INCOMPLETE

Standard of Review.  “An instruction which tends to confuse rather than enlighten the jury is cause for reversal if it may have misled the jury and caused them to arrive at a conclusion that otherwise they would not have reached.” Pollack v. State, 818 So.2d 654 (Fla. 3rd DCA 2002). See also, Pieczynski v. State, 516 So.2d 1048, at1049 (Fla. 3d DCA 1987).

The Merits.  The jury instruction under Count One provided: “in order to prove the crime of unlawfully conducting or participating in an enterprise, the State must prove the following three elements beyond a reasonable doubt”, whereby element two was: “the Defendant conducted or participated in at least two incidents of grand theft”.  This direction was an error. The information, in Count One, charges that: Mark Turner did conduct or participate in an enterprise through a pattern of racketeering activity by engaging in at least two incidents of crimes chargeable under Section 812.014, Florida Statutes, relating to theft.  This mix up proceeded to create numerous problems and much confusion. Although the instruction directed the element of grand theft in Count one, there was only an incomplete definition given for grand theft; the property value requirement was never mentioned in relation to the term. As the trial court noted, there was nothing in the instruction that explained the element of grand theft that the property value must be $300 or more. (p. 2224). During discussions of the instructions, at one point, even the Assistant State Attorney admitted that the word “grand” in the instruction was, “confusing” (XI-2067).

Further, the instruction in Count One required: “If you find the defendant guilty of theft, you must determine by your verdict whether the State proved beyond a reasonable doubt: a. The value of the property taken was: a) $300 or more or b) The value of the property taken was less than $300.” But nowhere in the instruction was there a statement defining theft, only an incomplete definition of grand theft. Also, there was no corresponding valuation direction in the verdict form for this instruction.

“[T] he court should not give instructions which are confusing, contradictory or misleading.” Butler v. State, 493 So.2d 451, 452 (Fla.1986).

The court tried to rectify the glaring problems in the instruction, after they were read to the jury, by inserting into the middle of Count Two on the verdict form: “In order to find the Defendant guilty of this charge, you must determine that the value of the property taken in the theft was $300 or more.” However, this only made a hopelessly confusing situation even more so. Especially given that there were three other dollar amounts relating to transactions-not the theft charges from Count One- that the jurors were asked to choose from, directly above the completely out of order value directive.  It was an error to mix the findings of Count One and Count Two.  Even the trial judge, in pondering whether the findings from Count One carried over to Count Two, correctly concluded that he thought they did not. (XII-2225). Further, as mentioned, the Judge had already read the instructions to the jurors before the parties agreed that it contained an error, and the erroneous and confusing instructions were never corrected. The attempt to rectify the errors in the instruction by inserting a valuation direction into a different Count in the verdict form was unsuccessful since it was just as perplexing. Further, the original errors in the instruction, that all parties fundamentally agreed existed, were never directly addressed.

Another significant problem with the language added to the verdict form, “In order to find the Defendant guilty of this charge, you must determine that the value of the property taken in the theft was $300 or more.” is that it reads more like a directive than a choice.

Also, the above-mentioned errors may have been prevented if the trial court had not erred in denying Appellant a special verdict form as requested. (V of V-780).

For the reasons stated above, it cannot be said that the jurors reached the same conclusion they would have if they had been given complete and clear instructions.

ISSUE IV.  THE COURT ERRED IN FAILING TO GRANT THE MOTION FOR NEW TRIAL BASED ON PROSECUTORIAL MISCONDUCT

Standard of Review. “Improper prosecutorial remarks can constitute reversible error when such remarks may have prejudiced and influenced the jury into finding the defendant guilty”. Ryan v. State, 457 So.2d 1084, 1086 (Fla. 4th DCA1984), pet. for rev. denied 462 So.2d 1108 (Fla. 1985).  The standard of review for the denial of a motion for new trial is abuse of discretion. See Smith v. State, 7 So.3d 473 (Fla. 2009.) Also, see, Redish v. State, where the first DCA reversed the trial court maintaining: “we conclude that it cannot be said beyond a reasonable doubt that the appellant at bar would have been convicted without the taint of the impermissible remarks made to the jury.” 525 So.2d 928, 930 (Fla. 1st DCA 1988); See also, Singletary v. State, 483 So.2d 8 (Fla. 2nd DCA 1985).

The Merits.  During closing, rebuttal, arguments the Assistant State Attorney made a highly prejudicial comment that was not only outside the facts in evidence, but was blatantly contrary to the facts in the record. Further, the area of comment had been expressly prohibited by the State’s own motion in limine. The prosecutor’s improper comments were as follows: “The Judge is not going to tell you that if somebody steals from you, you can sue them. Pete Moore chose not to. Guess what? What happened to him was a crime. He sued on the mortgage, but he didn’t sue to recover for these cars. You know why? Because I brought this case.”  The damage was properly preserved for Appeal by Appellant’s immediate objection, and motion for mistrial at the end of the closing argument.  The Judge affirmed that it was an improper comment, and agreed to give the jurors an instruction to disregard the comment, which he did, before going over final instructions.

It is impermissible for a prosecutor to comment in closing argument upon matters outside the record. Wheeler v. State, 425 So.2d 109, 110-111 (Fla. 1st DCA 1982), approved, State v. Wheeler, 468 So.2d 978. (Fla. 1985). 

These remarks were egregious for a number of reasons. First, there was absolutely nothing in the record to support them.  It is clear from pretrial hearings that the State did not have information that Pete Moore would have filed a lawsuit if the State had not.  Rather, the converse is evident, - it appears, from the prosecutor’s own words, that Pete Moore actually had to be nudged into coming on board with the State’s prosecution. The prosecutor was well aware that Appellant had filed a civil suit against Pete Moore Chevrolet, Inc. as early as the spring of 2004, but that Pete Moore had never filed a civil suit against Appellant.  Pete Moore did not even become a named victim in the present case until May 21, 2007. Over three years after Appellant had filed his civil suit against him, Pete Moore still had not filed any criminal or civil suit against Appellant, and there was certainly nothing in the record to indicate that he would have if the State had not. In pretrial hearings, when Appellant stated his intention to show Pete Moore Chevrolet never reported this offense, and noted that this was significant to the theory of his case, the prosecutor replied:  “It was the State who brought this case, not Pete Moore. It was the State who looked into the bank records and realized just the extent of this, and the State brought this case.” And: “…rather than sue or pursue other remedies, they felt that from what they knew and the circumstances they had, they just did not want to get further involved in this.”(Emphasis added). This clearly indicates that Pete Moore wasn’t interested in bringing a case against Appellant, and the Assistant State Attorney knew it, contrary to the his closing argument comments.

It was the State that argued, in their first motion in limine, that evidence regarding the fact that Pete Moore never brought charges against Appellant should not be introduced at trial. And the court did order, pursuant to the prosecutor’s request, that that information would be disallowed, contingent upon further showing. Thus, it was highly improper and harmful for the State to turn around at the last moment in closing rebuttal, when the Appellant couldn’t possibly disabuse the jury of this false idea with its own evidence or argument. The Judge, in granting the State’s initial motion in limine, noted that this matter: “had a potential of misleading and confusing the jury and being unduly prejudicial to the state.” In fact, when the State made the improper statements in rebuttal, the converse of the Judge’s concern was true; the Prosecutor’s baseless assertion was misleading and prejudicial, but to the defense.

Further, rule 4-3.4(e) of the Rules Regulating the Florida Bar states that a lawyer shall not “allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence…” See Kelly v. State, 842 So.2d 223, 227 (Fla. 1st DCA 2003), (where conviction was reversed and court mentioned prosecutor’s violation of rules regulating the Florida Bar in its ruling.)  Under these circumstances the prosecutor couldn’t possibly have reasonably believed that his comments were supported by admissible evidence. 

Underscoring, the prosecutor’s comments and amplifying their prejudicial effect was the fact that they went straight to the heart of the Defendant’s case. The major underlying theory of Appellant’s defense to the crimes charged was that Appellant lacked the requisite criminal intent to commit theft from Pete Moore Chevrolet Inc. In fact in the opening statement, Appellant asserted: “the whole crux of this case, as Mr. Edgar indicated, is theft, whether or not there was any intent to commit a theft, not a loan, not a borrowing transaction, but theft.” (I-67). Appellant argued that there was a longstanding agreement between the parties as to how they conducted their business.  The evidence showed that Pete Moore continued to deliver titles to AGOP even though he knew they owed him a substantial amount of money. Appellant’s argument was also that Pete Moore was compensated when he took Appellant’s Internet business pursuant to an understanding. The defense theory would have been strengthened and validated by evidence that Pete Moore never pursued or intended to pursue a court case against Appellant, regardless of the State’s actions. The converse is also true: the case was severely undermined by the Prosecutor’s damaging comments to the contrary. His comments made it appear that Pete Moore was going to sue Appellant, and that the Assistant State Attorney may have had information regarding this matter, that the jury didn’t have.

Lastly, the comment was even more damaging because it also improperly bolstered the credibility of a witness, the main victim in the case.  See, Myers v. State, 788 So.2d 1112 (Fla. 2nd DCA 2001). The Prosecutor’s remarks tended to make the witness appear more convincing and gave weight to his harm.

“…there are situations where the comments of the prosecutor so deeply implant seeds of prejudice or confusion that even in the absence of a timely objection at the trial level it becomes the responsibility of this court to point out the error and if necessary reverse the conviction.” Pait v. State, 112 So.2d 380 (Fla. 1959). There are situations, like this one, where a Prosecutor’s improper remark can be so prejudicial that neither a retraction from the prosecutor nor a rebuke from the Judge will eliminate its damaging influence. Id. at 385. Also see, McMillian v. State, 409 So.2d 197, 198 (Fla. 3rd DCA 1982). For these reasons, the prosecutor’s comments in this case fit squarely into the above category.  There was utterly no evidence adduced to support the comments, they were an attack on the core of Appellant’s case and were so prejudicial, that even with the Judge’s instruction, they deprived defendant of a fair trial.

ISSUE V.  THE STATE ERRED IN DENYING THE JUDGMENT OF ACQUITTAL BASED ON INSUFFICIENCY OF THE EVIDENCE

Standard of Review.  The de novo standard of review is used to review a trial court's denial of a motion for judgment of acquittal. The Appellate Court may grant a motion for judgment of acquittal if the evidence fails to establish a prima facie case of guilt when it is viewed in a light that is most favorable to the state. Sutton v. State, 834 So.2d 332, 334, (Fla. 5th DCA 2003).

The Merits.  At the close of the State’s case in chief the Defendant moved for a Judgment of Acquittal as to Counts One, Two, and Three. At the close of all the evidence, the motions for judgment of acquittal were renewed. The evidence presented was insufficient to convict Appellant of conducting or participating in an enterprise through racketeering, because there was no evidence of intent to commit the underlying crimes of theft that Appellant was charged with.  There was no evidence of theft or intent to steal.  Further, the State did prove the necessary elements a “pattern of racketeering” activity.

With respect to Count 1) a-1 through 1) a-13, the evidence failed to show that Defendant had any intent to temporarily deprive Pete Moore Chevrolet of its property. There was undisputed evidence that Appellant and the manager of Pete Moore Chevrolet, Rick Hamilton, had a long-standing history of lending each other money back and forth. The money was always paid back, even when Appellant fell behind in his payments. (II-374). Rick Hamilton testified that he loaned Appellant, “probably $100,000 back and forth a lot of times”. (II-373, II-381). After the March 2003 meeting discussing the debt to Pete Moore Chevrolet, up until David Turner pulled the dealer’s license, Appellant was working toward paying off his debt. By September 2003, Mark Turner had already paid $40,000 of the approximately $146,000 debt. (III-414). Pete Moore Chevrolet’s own comptroller testified that after September 2003, and as late as December 2003, Appellant continued to work down his debt. (X-1929). He also moved his business to be closer to Pete Moore Chevrolet. (IX-1674). Finally, and significantly, in March of 2003 when Appellant’s debts were discussed, he acknowledged them and signed a promissory note to Pete Moore Chevrolet, secured by mortgages on two pieces of property. (II-310). Approximately $205,000 was collected from this note. (II-331). There was no evidence of intent presented relating to the debt of $146,000 for the thirteen cars Appellant was charged with in Count1) a-1 through 1) a-13. Some of the vehicles proceeds in the next group of charges were similar to the first batch of thirteen vehicles, such that payments had been received from the $205,000 collected on the promissory note. 

It was undisputed that Appellant was charged with having committed the thefts charged in Count 1) a-14 through 1) a-42 and 1) b-1 through 1) b-5, all within a matter of months. The theft was charged to have occurred sometime in December 2003 for eleven of the cars, twenty-one vehicles were charged as occurring between November and December 2003, one was charged between October and December 2003, and one was charged between September and December 2003. All of these cars had December 2003 included in the time range that the theft was charged to have occurred. This is the same month that David Turner pulled the Auto Gallery of Pensacola license, removed cars from the car lot, took AGOP deposits totaling forty to sixty thousand dollars, removed cars from the car lot, gave one to his girlfriend and one to his brother in law, and took the company checkbook, rendering Appellant incapable of selling cars to continue working down his debts.  With respect to Count 1) b-1 through 1) b-5, the evidence clearly indicates that AGOP had an excellent line of credit with AFC up until December 2003. There was no evidence that Appellant intended to temporarily or permanently deprive AFC of funds from AFC vehicles as alleged.

The State’s argument that Appellant’s motive for intent to take proceeds from the vehicles, that he knew he was going to be shut down by DMV-did not comport with the evidence. DMV witnesses testified that AGOP was inspected in November of 2002, February and June of 2003. The compliance officers went to AGOP to perform an audit in October of 2003. At that time they asked to inspect records from the three prior months: July, August and September. However, the comptroller for Pete Moore Chevrolet had testified that she didn’t know of any problems of Appellant not paying for cars from March of 2003 through to September 2003. Therefore, there was no evidence that Appellant had anything to fear from a DMV audit in that regard. Further, DMV witness, Bruce Thompson’s testimony that on the October 30th inspection they found one of the ten random cars sampled had no title on the premises, was undoubtedly insufficient to indicate AGOP would be shut down. (III-575, III-576). There was simply no evidence that the DMV was about to close down AGOP, and certainly no evidence that Appellant had any knowledge that it would be shut down.

Even the State’s own witness’s supported Appellant’s argument that he lacked intent to commit theft. The former AGOP employee, Anthony Ramsey, said that he never saw anyone from AGOP ever attempt to conceal any business dealings or the fact that they owed money to Pete Moore Chevrolet.  (IV-658). Rick Hamilton testified that he was never worried about the money he had loaned Appellant, because, as he said: “He always paid me back.” (II-381). David Turner testified that he was not surprised that Pete Moore Chevrolet was loaning Mark Turner money because that was what they did all the time in the car business. (IV-794).

Further, the evidence that the major victim in the case, Pete Moore Chevrolet which was run by a seasoned and successful businessman, never filed any complaints or lawsuits against Appellant, adds gravity to Appellant’s argument that he lacked intent. (IX-1700). There is a strong implication that even Pete Moore did not think Appellant had intentionally deprived him of his property.

With respect to Count 1) d-1, the evidence is insufficient to establish that Appellant intended to temporarily or permanently deprive his brother, David Turner, of the right or benefit of AGOP in the attempted sale to the Zolnoskis. There was also insufficient evidence that Appellant had intent to take the property of David Turner by removing him as the officer of AGOP.

Appellant attempted to sell the Zolnoskis Internet portion of AGOP along with his residence. He was under the impression that he owned that business. AGOP was a company that went awry due to a dispute between brothers. Who owned what part of the business was always murky. The brothers clearly never clearly sat down and organized the company. David Turner’s compensation was highly irregular. The evidence clearly showed that he knew very little of what was going on in the business. He did not know who kept the books and even admitted he did not pay much attention to AGOP. He never filed any tax returns pertaining to AGOP Inc. (IV-792). Also, during the March 2003 meeting with lawyers and fellow businessmen present, when Appellant repeatedly referred to AGOP as his business, David Turner never tried to disabuse anyone of such. Further, Appellant is the one who put up his personal property for AGOP debts on the promissory note.  Finally, David Turner was asked whether he made it clear to the bank employee as to why there were two companies, AGOP and AGOP, Inc., he responded, “I think she might have been as confused as I was.” Even David Turner, the alleged victim, admitted his confusion over the ownership of AGOP. It was plainly a confused partnership, but the evidence was clearly insufficient to show that Mark Turner did not own, at the very least, AGOP Inc. There was not even evidence of what legally constituted an ownership.

Appellant openly admitted that he tried to sell the property as he was under the impression that it was his property.

“When presumption against felonious intent arises. In charges of larceny where the taking is open, and there is no subsequent attempt to conceal the property, and no denial but an avowal of the taking, a strong presumption arises that there was no felonious intent, which must be repelled by clear and convincing evidence before a conviction is authorized.” Cooper v. State, 82 Fla. 365, 90 So 375 (Fla. 1921) See also, Bartlett v. State, 765 So.2d 799, (Fla. 1st DCA 2000)

Nonetheless, there was no transaction that resulted in the transfer of any property.

There was no temporary or permanent deprivation.

If the Appellate Court finds that there was insufficient evidence of intent for any of the underlying charges in Count One, the entire charge for Count One should be reversed. Since the jury was not asked to identify specific findings, there is no way of knowing whether the sub-counts they found Appellant guilty of might be one that lacked sufficient evidence of intent, thus the entire count must fail.

Since there was insufficient evidence of intent to temporarily or permanently deprive the owners of the property, there is no basis for the charge of conducting or attempting to conduct unlawful activity in Count Two.  Further, there was also no intent to promote the carrying on of an unlawful activity or any intent, in whole or part, to design transactions to conceal the nature, location, source or ownership or control of the proceeds.

With respect to Count Three, there was insufficient evidence to establish that the Appellant, with criminal intent, received proceeds derived directly or indirectly from a pattern of racketeering activity either as charged by engaging in tow incidents of crimes chargeable under Fla. Stat. § 812,014 or relating to unlawful financial transactions in violation of Fla. Stat. §896.101. Since there was no intent under Count One to temporarily or permanently deprive directly or indirectly nor any unlawful transactions.

Appellant cannot logically be guilty of all three charges. It was contradictory and inconsistent for the State to claim, and for the jury to find, both that David Turner is the owner of AGOP, and also that Mark Turner is the one responsible for AGOP debts, where the vehicles were purchased under David Turner’s license under David Turner’s line of credit. If it were in fact the case that David Turner was the owner of AGOP, Counts1) a and 1) b- charges that took up the major portion of the trial- were charged improperly. David Turner should have been charged with those counts, and Appellant should have been charged with taking that property from David Turner. If David Turner was in fact the owner, he would certainly be the one responsible for the cars to Pete Moore Chevrolet and to AFC. Again, since there were no specific findings, it is unknown whether the jury did in fact find Appellant guilty of inconsistent charges. Therefore the charges should be reversed.

Mike Adkins testified that he was unable to trace the funds for two cars, one was in the first batch of 13 cars (Counts 1a-1 to 1a-13), (III-479), the other was in the second batch of 32 cars, (Counts 1a-14 to 1a-43). There was a car nolle prossed in the second batch, but none were nolle prossed in the first thirteen sub-counts. Since he admitted that he was unable to find a deposit for that vehicle, the sub-count should have been dismissed upon Appellants motion for judgment of acquittal. Clearly there was insufficient evidence to find Appellant guilty of this theft. Since there were no specific findings, it is unknown whether this car is one that the jurors may have found Appellant guilty of. Since it is unknown whether the guilty finding was based on an error, the entire charge should be reversed. 

ISSUE VI.  THE STATE ERRED IN DENYING THE JUDGMENT OF ACQUITTAL BASED ON FAILURE TO PROVE THE PATTERN OF RACKETEERING ACTIVVITY ELEMENT OF THE CHARGE OF COUNTS ONE AND THREE

The Merits.  “In adopting RICO in 1977, the legislature stated its intent to ‘resist and eliminate’ infiltration of organized crime into this state and determined ‘it is necessary to provide new criminal ... remedies’ to assist in the battle. See Chapter 77-334, Laws of Florida. By establishing the RICO Act, the legislature clearly intended that those persons who engage in a pattern of criminal activity be punished more severely than those convicted only of one of the predicate offenses.” Vickery v. State, 539 So29 499

The trial court erred in denying the motion for judgment of acquittal based on the fact that the state failed to prove the “pattern of racketeering activity” element of the offense. Evidence was insufficient to establish a “pattern of racketeering”, an essential element of the racketeering charge which includes a continuity requirement that the State failed to prove.

“Whether the predicates proved establish a threat of continued racketeering activity depends on the specific facts of each case.... A RICO pattern may surely be established if the related predicates themselves involve a distinct threat of long-term racketeering activity” Harvey v. State, 617 So.2d 1144 (Fla. 1st DCA 1993). See also Shimek v. State, 610 So. 2d 632 (Fla. 1st DCA 1992).

“Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement.” Brown v. State, 652 So.2d 877(Fla. 5th DCA 1995).

The evidence in this case did not show that criminal conduct occurred for more than a three-month period. There was certainly not enough of a timeframe of criminal activity to establish any sort of a pattern of racketeering activity.  In fact, the majority of the predicate incidents charged in this case were so closely related that they should be classified as offenses that arose out of the same incident - the incident of the dealer’s license being revoked. See, Watts v. State 558 So.2d 142 (Fla. 3rd DCA 1990). The first batch of theft of thirteen cars charged, which there was clearly no intent of theft evinced, all were charged with having occurred sometime between January 2003, and March 2003. The second batch of thefts, the thirty-four cars (including the AFC cars), were all charged to have occurred sometime within the range of the month of December of 2003: there was one theft charged to have occurred between September and December of 2003; one theft was charged to have occurred between October and December, 2003, twenty-one of the car proceeds were charged to have been stolen between November and December and eleven of the proceeds were charged to have been stolen sometime in December 2003.  A three-month period of activity does not involve a sufficiently substantial period of time to satisfy the “pattern of racketeering” element.

Further, there was no evidence that there was any possibility of these incidents ever reoccurring. The evidence showed that the Appellant had an excellent record of business for probably some twenty years with Pete Moore Chevrolet before the incidents occurred. Also, a former AFC employee testified that up until late 2003, AGOP had an excellent record with AFC. (VII-1232, VII-1237). The incidents of the 34 cars were clearly a result of the particular circumstance of David Turner pulling the AGOP license. There was undoubtedly no evidence that there was a threat of this, pivotal, causal incident ever reoccurring. Thus, the State did not prove the necessary elements of the charges.

The fact that there were no specific charges presents yet another problem, this time it is with the pattern of racketeering element of the charges. It is unknown whether the jurors found Appellant guilty of predicate charges that would meet the necessary criteria of the incidents being similar with respect to the alleged methods of committing the incidents, the types of victims, or the accomplices (of which there were none). See, Shimek.

ISSUE VII.  THE TRIAL COURT DID NOT HAVE JURISDICTION TO HOLD A RESTITUTION HEARING OR ENTER AN ORDER OF RESTITUTION.

On May 5th, 2008, Mark Turner filed a notice of appeal.  Although it did not have jurisdiction, the trial court held a restitution hearing on June 17, 2008 and entered an order of restitution on July 11th, 2008.

“A trial court does not have jurisdiction to hold a restitution hearing or enter an order of restitution after a notice of appeal has been filed.” K.D. v. State, 779 So.2d 468, (Fla. 2nd DCA 2000); See also, Edwards v. State, 734 So.2d 1130 (Fla. 2d DCA 1999) and Colson v. State, 711 So.2d 604 (Fla. 2d DCA 1998).

Even if the trial court did have the ability to extend jurisdiction for 60 days as it stated at sentencing, the trial court’s order of restitution was entered after the 60 day period.  Thus, the order of restitution is invalid and should be stricken.

Further, the written order of restitution does not conform to the oral pronouncement of the amount of the restitution.

CONCLUSION

     Appellant hereby respectfully requests that this court reverse Appellant’s convictions and discharge Appellant.  In the alternative, Appellant requests that the cause be reversed and remanded for a new trial.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to Trisha Meggs Pate, Assistant Attorney General, counsel for the State of Florida, at The Capitol, PL-01, Tallahassee, FL  32399-1050; and to Appellant, Mark Turner, 1281 Grand Ridge Cr., Gulf Breeze, Florida 32563 on this date October 5, 2009.

     CERTIFICATE OF FONT SIZE

     I HEREBY CERTIFY that, pursuant to Florida Rule of Appellate Procedure 9.210, this brief was typed in Courier New 12 Point.

                              Respectfully submitted,

JEFFREY LEWIS

REGIONAL CONFLICT COUNSEL

OFFICE OF CRIMINAL CONFLICT AND

CIVIL REGIONAL COUNSEL

REGION ONE

______________________________

LAURA ANSTEAD

Florida Bar No. 0084530

Assistant Regional Conflict Counsel

P.O. Box 1019

Tallahassee, Florida 32302

(850) 922-0179

AnsteadL_RC1@jac.state.fl.us

COUNSEL FOR APPELANT 
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