E-Copy Received Feb 28, 2014 4:50 PM IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CASE NUMBER 4D13-2085 LOWER COURT CASE NUMBER: 10-013621CF10A ELYAHU SACHMOROV, Appellant, vs. STATE OF FLORIDA, Appellee. APPELLANT S INITIAL BRIEF Schwartzreich and Associates, P.A. Eric T. Schwartzreich, Esquire Marla Chicotsky, Esquire th 208 S. E. 6 Street Fort Lauderdale, Florida 33301 (954) 525-8000 (954) 525-8331 facsimile E-mail: erictolin@bellsouth.net E-mail: mac3593@yahoo.com Service Email jlallen520@aol.com
TABLE OF CONTENTS Table of Contents... i Certificate of Interested Parties... iii Table of Citations... iv References to Transcript... vi Statement of Case and Facts... 1 Summary Argument... 8 Argument... I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE APPELLANT S MOTION FOR JUDGMENT OF ACQUITTAL WHERE THE ONLY PROOF OF GUILT IS CIRCUMSTANTIAL, NO MATTER HOW STRONGLY THE EVIDENCE MAY SUGGEST GUILT, A CONVICTION CANNOT BE SUSTAINED UNLESS THE EVIDENCE MAY SUGGEST GUILT, A CONVICTION CANNOT BE SUSTAINED UNLESS THE EVIDENCE IS INCONSISTENT WITH ANY REASONABLE HYPOTHESIS OF INNOCENCE...10 II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE APPELLANT S MOTION FOR NEW TRIAL AND MOTION TO SET ASIDE VERDICT WHEREIN THE STATE OF FLORIDA FAILED TO PROVIDE SUBSTANTIAL COMPETENT EVIDENCE THAT WAS ADEQUATE TO SUPPORT A CONVICTION...16 I
Conclusion... 19 Certificate of Service... 20 Certificate of Font Size &Type... 21 ii
CERTIFICATE OF INTERESTED PARTIES The Appellant, ELYAHU SACHMOROV, states that, to his knowledge, the following judges, attorneys, persons, associations of persons, firms, partnerships or corporations have an interest in the outcome of the case: 1. Michael J. Satz, Broward County State Attorney; 2. Whitney Mackay, Assistant State Attorney for Broward County; 3. Eric T. Schwartzreich, Attorney for Appellant at Trial & Appellate level; 5. Marla A. Chicotsky, Attorney for Appellant at Appellate level 6. Honorable Michael Rothschild, Circuit Court Judge for the Seventeenth Judicial Circuit iii
TABLE OF CITATIONS Cases: Davis v. State, 436 So.2d [196 (Fla. 4th DCA 1983)... 11 DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957)... 17 Durousseau v. State, 55 So.3d 543 (Fla. 2010)... 17 Ferebee v. State, 967 So.2d 1071, 1072 (Fla. 2d DCA 2007)...9, 12, 16 Fowler v. State, st 492 So.2d at 1347, (Fla. 1 DCA 1986)... 11 Heiney v. State, 447 So.2d 210 (Fla.), cert. denied, 469 U.S. 920... 8 Jaramillo v. State, 417 So.2d 257 (Fla.1982)... 8 Mayo v. State, 71 So.2d 899 (Fla.1954)...8, 12 McArthur v. State, 351 So.2d 972 (Fla.1977)...8, 11 Pagan v. State, 830 So.2d 792, 803 (Fla. 2002)... 8 iv
Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983)... 8 Simmons v. State, 934 So.2d 1100, 1111 (Fla. 2006)... 17 Spinkellink v. State, 313 So.2d 666, 670 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976)... 10 State v. Allen, 335 So.2d 823, 826 (Fla.1976)... 11 Toole v. State, 472 So.2d 1174, 1176 (Fla.1985)... 11 United States v. Burks, th 547 F.2d 968 (6 Cir. 1976)... 17 Williams v. State, 488 So.2d 62 (Fla.1986)... 8 Wyatt v. State, 71 So.3d 89 (Fla. 2011)...9, 12, 16 Other Authorities Florida Rule of Criminal Procedure 3.380... 11 Florida Rule of Criminal Procedure 3.580... 18 Florida Rule of Criminal Procedure 3.610... 16 Florida Rule of Criminal Procedure 3.620... 16 Florida Statute 806.13(1)-(2)... 14 v
REFERENCES TO TRANSCRIPT There are four transcripts made part of the record. There is Volume I through Volume IV of the Jury Trial held on June 10, 2013. References to Volume I through Volume IV of the Jury Trial will be annotated by the letter T followed by the page number. All references to the Record on Appeal shall be annotated by the letter R followed by the corresponding number as prepared within Clerk s index of the Record on Appeal. vi
STATEMENT OF CASE AND FACTS On June 10, 2013 a Jury Trial was held before the Honorable Michael Rothschild. The State of Florida called the alleged victim, one Francesca Fasitta, as the first witness. Francesca Fasitta testified that in 2010 she began to rent an apartment from the Appellant. The Appellant and Francesca Fasitta orally agreed that the rent amount would be One Thousand Fifty ($1,050.00) Dollars per month. On March 31, 2010 the Appellant went to his apartment located at 11304 West Sample Road in Coral Springs, Florida that he was leasing to Francesca Fasitta and asked her to pay the rent as she was past due. Francesca Fasitta argued to the Appellant that she had cleaned houses for the Appellant and thus she did not have to pay him rent and the Appellant owed her Eight Hundred ($800.00) Dollars. The Appellant informed Francesca Fasitta that she still owed him Eight Hundred ($800.00) Dollars as the rent was reduced due to her cleaning and he was not charging her the full rent amount of One Thousand Fifty ($1,050.00) Dollars. Francesca Fasitta wrote the Appellant a check for Eight Hundred ($800.00) Dollars and as soon as he left his apartment, she called her bank and stopped payment on the check. (T. 274-277). On April 1, 2010 the Appellant was allegedly seen by Francesca Fasitta s son, one Pietro Fasitta, carrying a bucket and pouring an unknown chemical from the second floor balcony on to Francesca 1
Fasitta s Chrysler vehicle. (T. 289). The State of Florida called Pietro Fasitta who testified that he always has lived with his mother and was a renter at the incident location. Pietro Fasitta was present on March 30, 2010 when the Appellant requested his rent money from his mother, saw his mother write the Appellant two (2) checks and had knowledge that his mother immediately stopped payment on the checks. Pietro Fasitta testified that the following day, he left his mother s apartment wearing an old fashioned hat and observed the Appellant throwing a bucket of some kind of chemical on his mother s vehicle. (T. 472). For the first time before the jury, Pietro Fasitta stated that the bucket that was used by the Appellant was blue. (T. 489-492). At this time, Pietro Fasitta went back to the apartment and alerted his mother as to what had happened to her vehicle. (T. 473). Due to his mother not feeling well they waited to call the police and took the vehicle to the car wash the following day on April 1, 2010. (T. 473). On April 1, 2010 Francesca Fasitta and her son finally contacted law enforcement. (T. 482). Pietro Fasitta on direct examination stated several times that the incident was an accident and that he spoke to law enforcement about the accident that had occurred. (T. 482). The State of Florida called Officer Edmond DeRosa from the Coral Springs Police Department who testified that it was a delayed report by the complainants. Officer 2
Edmond DeRosa testified that he did not have any physical evidence such as a bucket nor did he know what type of chemical was allegedly used. (T. 511). Officer Edmond DeRosa testified that there were no fingerprints, physical evidence or anything of the Appellant on Francesca Fasitta s vehicle. (T. 512). Officer Edmond DeRosa never saw the vehicle and only saw pictures of the vehicle that were shown to him by Francesca Fasitta. Furthermore, Officer Edmond DeRosa did not know that Francesca Fasitta and her son, Pietro Fasitta, took the vehicle to the car wash prior to contacting law enforcement. (T. 512). The State of Florida called John DiGiovanni, owner of Gold Coast Collision Center in Pompano Beach, who testified that on May 25, 2010 a woman brought a 2004 Chrysler vehicle to his shop for an estimate. John DiGiovanni testified that the total estimate was Two Thousand Eight Hundred Eighty-two ($2,882.00) Dollars to repair and refinish the vehicle parts such as the front bumper cover, hood panel, front door, left front door, roof panel, side panel, trunk lid and the rear bumper. John DiGiovanni testified that the estimate included the paint and body labor which is the dents and then the paint supplies to paint the vehicle, plus tax at six (6) percent. John DiGiovanni further testified that he was not present when the vehicle got in the condition, that he did not know how the vehicle got into the condition, that he did not know what condition the vehicle was in when Francesca Fasitta purchased the vehicle and he did not know when the vehicle was 3
purchased. (T. 370-378). The State of Florida did not put forward any physical evidence connecting the Appellant to the crime of felony Criminal Mischief nor did the State of Florida prove that it was an alleged chemical that had in fact damaged the Appellant s vehicle. The State of Florida s case relied solely on the testimony of Pietro Fasitta. The Appellant moved for Judgment of Acquittal arguing that the State of Florida failed to prove a prima facie case of guilt. The Trial Court held that the standard as applicable at this point in the Trial, that the State of Florida has set forth a prima facie case and there has been evidence of damage. There has been evidence of value. There has been at least evidence to support a jury finding of intent so the Court denied the Motion for Judgment of Acquittal. (T. 514-515). The defense then called the Appellant as a defense witness in the Jury Trial. The Appellant testified that he absolutely did not commit the crime of Criminal Mischief nor did he pour a blue bucket over some balcony onto Francesca Fasitta s vehicle. (T. 521). The Appellant testified that he had never seen Francesca Fasitta driving a vehicle as he saw her in a friend s vehicle one (1) day and the next time he saw her in a taxi. The Appellant testified that he and Francesca Fasitta had a lease however there was not an arrangement for her to clean houses for him. Francesca Fasitta was in the apartment for one (1) month and the check she had given to him for rent came back as insufficient funds. (T. 4
522). On March 5, 2010 the Appellant gave Francesca Fasitta a three (3) day notice to pay her rent and he never threatened her. (T. 523, T. 526). The Appellant testified that he was not upset that the check had bounced as he has been a landlord for twenty-seven (27) years and the Appellant then will hire a company to legally serve the paperwork, go to Court and file the proper paperwork. (T. 526). The Appellant then renewed any and all motions and moved for a second Judgment of Acquittal relying on a different standard. The Appellant argued that there are three (3) elements to felony Criminal Mischief, first being that the Appellant injured or damaged personal property; second, that the property injured or damaged belonged to Francesca Fasitta; and third, it was done willfully and maliciously. The Appellant further argued that the State of Florida charged the Appellant with felony Criminal Mischief wherein the State of Florida has the burden of proof to prove that the damage was greater than One Thousand ($1,000.00) Dollars. The Appellant argued that starting with the first element, there was not any testimony, competent testimony, that the Appellant injured or damaged personal property. The State of Florida did not prove that it was done willfully, meaning intentionally and knowingly. The burden of proof for maliciously is, in fact, from the sole eyewitness, Pietro Fasitta, the alleged victim s son, and he interchanged the word accident several times rather than incident 5
throughout his testimony before the jury. Pietro Fasitta testified that the paint was not like it was after the accident. As far as the damage belonging to Francesca Fasitta, the State of Florida did not meet their burden of proving that the vehicle belonged to and was titled to Francesca Fasitta. In fact, Francesca Fasitta testified in trial that she purchased the vehicle in 2009, however, during her October 19, 2011 deposition, she testified that she purchased the vehicle not too long ago. (T. 307). As far as the element of the State of Florida having to prove damage, all the State of Florida put into evidence was an estimate that was done on 2004 year model vehicle, there was no proof of whether there was any damage to the vehicle before the estimate was done so it would have been possible for the damage to have occurred to the vehicle prior to this allegation. The Trial Court denied the Appellant s second Judgment of Acquittal but the Trial Court did agree that there are questions as to the credibility and to the weight of the evidence. (T. 532-538). On June 11, 2013 the jury found the Appellant guilty of one (1) count of felony Criminal Mischief solely on the testimony of the alleged victim, Francesca Fasitta, and her son, Pietro Fasitta. The Trial Court sentenced the Appellant to a withhold of adjudication, three (3) years probation with the special condition of fifteen (15) days Broward County Jail with credit for one (1) day and ordered restitution in the amount of Two Thousand Eight Hundred Eighty-two and 81/100 ($2,882.81) Dollars. On July 11, 2013 the Appellant filed a Motion for New Trial 6
and Motion to Set Aside the Verdict that was argued before the Trial Court. The Trial court denied Appellant s Motion for New Trial and Appellant s Motion to Set Aside the Verdict and this Appeal follows. 7
SUMMARY OF ARGUMENT The Trial Court committed reversible error by denying the Appellant s Motion for Judgment of Acquittal. In the light most favorable to the State of Florida, the State of Florida failed to prove a prima facie case of criminal mischief. In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). The law as it has been applied by this Court in reviewing circumstantial evidence cases is clear. A special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence. Jaramillo v. State, 417 So.2d 257 (Fla.1982). Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla.1977); Mayo v. State, 71 So.2d 899 (Fla.1954). The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse. Heiney v. State, 447 So.2d 210 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), disapproved on other grounds, Williams v. State, 488 So.2d 62 (Fla.1986). 8
The Trial Court committed reversible error by denying the Appellant s Motion for New Trial. The sufficiency of the evidence standard also used in a Judgment of Acquittal requires that a Trial Court determine as a matter of law whether the evidence presented was adequate to support a conviction. Ferebee v. State, 967 So.2d 1071, 1072 (Fla. 2d DCA 2007). The Appellate Court defers to those factual findings supported by competent, substantial evidence, but reviews de novo the application of the law to the facts. Wyatt v. State, 71 So.3d 89 (Fla. 2011). The Trial Court shall grant a Motion in Arrest of Judgment only on one (1) or more of the following grounds: (a) the Indictment or Information on which the Defendant was tried is so defective that it will not support a Judgment of Conviction; (b) the Court is without jurisdiction of the cause; (c) the verdict is so uncertain that it does not appear therefrom that the Jurors intended to convict the Defendant of an offense of which the Defendant could be convicted under the Indictment or Information under which the Defendant was tried; and (d) The Defendant was convicted of an offense for which the Defendant could not be convicted under the indictment or information under which the Defendant was tried. 9
ARGUMENT I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE APPELLANT S MOTION FOR JUDGMENT OF ACQUITTAL WHERE THE ONLY PROOF OF GUILT IS CIRCUMSTANTIAL, NO MATTER HOW STRONGLY THE EVIDENCE MAY SUGGEST GUILT, A CONVICTION CANNOT BE SUSTAINED UNLESS THE EVIDENCE IS INCONSISTENT WITH ANY REASONABLE HYPOTHESIS OF INNOCENCE After the State of Florida rested their case, the Appellant moved for a Judgment of Acquittal, arguing in the light most favorable to the State of Florida that the State of Florida has failed to make a prima facie case of guilt of one (1) count of felony Criminal Mischief. It is the Trial Judge's proper task to review the evidence to determine the presence or absence of competent evidence from which the Jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the State of Florida. Spinkellink v. State, 313 So.2d 666, 670 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). The State of Florida is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the Defendant's theory of events. See Toole v. State, 472 So.2d 1174, 1176 (Fla.1985). Once that threshold burden is met, it becomes the jury's duty to determine whether the evidence is sufficient to exclude every reasonable 10
hypothesis of innocence beyond a reasonable doubt. State v. Allen, 335 So.2d 823, 826 (Fla.1976). If the rule were not applied in this manner, a Trial Judge would be required to send a case to the jury even where no evidence contradicting the Defendant's theory of innocence was present, only for a verdict of guilty to be reversed on direct appeal. We agree with the Fowler Court that it is for the Court to determine, as a threshold matter, whether the State of Florida has been able to produce competent, substantial evidence to contradict the Defendant's story. If the State of Florida fails in this initial burden, then it is the Court's duty to grant a Judgment of Acquittal to the Defendant as to the charged offense, as well as any lesser-included offenses not supported by the evidence... Otherwise, there would be no function or role for the Courts in reviewing circumstantial evidence, as was stated so well in Davis v. State, 436 So.2d [196 (Fla. 4th DCA 1983) ], 200: If we were to follow the State's logic, a Trial Judge could never... grant a Motion for Judgment of Acquittal pursuant to Florida Rule of Criminal Procedure 3.380 when the evidence [is] circumstantial. Instead, every case would have to go to the jury. st Fowler v. State, 492 So.2d at 1347, (Fla. 1 DCA 1986). Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 11
(Fla.1977); Mayo v. State, 71 So.2d 899 (Fla.1954). The sufficiency of the evidence standard also used in a Judgment of Acquittal requires that a Trial Court determine as a matter of law whether the evidence presented was adequate to support a conviction. Ferebee v. State, 967 So.2d 1071, 1072 (Fla. 2d DCA 2007). The Appellate Court defers to those factual findings supported by competent, substantial evidence, but reviews de novo the application of the law to the facts. Wyatt v. State, 71 So.3d 89 (Fla. 2011). The State of Florida did not put forward any physical evidence connecting the Appellant to the crime of Criminal Mischief nor did the State of Florida prove that it was an alleged chemical that had in fact damaged the Appellant s vehicle. The State of Florida s case relied solely on the testimony of Pietro Fasitta, who has credibility issues due to him being the son of the alleged victim. Francesca Fasitta and Pietro Fasitta have obvious bias and motive to make a delayed allegation towards their landlord, the Appellant, who was evicting them from their apartment due to Francesca Fasitta failing to pay the rent. Furthermore, the testimony of both Francesca Fasitta and Pietro Fasitta changed from their deposition testimony to the Jury Trial regarding when the car was purchased to the description of the bucket. For the first time before the jury, Pietro Fasitta stated that the bucket that was used by the Appellant was blue. (T. 489-492). Francesca Fasitta testified in trial that she purchased the vehicle in 2009, however, at her October 19, 2011 12
deposition, she testified that she purchased the vehicle not too long ago. (T. 307). Officer Edmond DeRosa testified that he did not have any physical evidence such as a bucket nor did he know what type of chemical was allegedly used. (T. 511). Officer Edmond DeRosa testified that there were not any fingerprints, physical evidence or anything of the Appellant on Francesca Fasitta s vehicle. (T. 512). Officer Edmond DeRosa never saw the vehicle and only saw pictures of the vehicle that were shown to him by Francesca Fasitta. Furthermore, Officer Edmond DeRosa did not know that Francesca Fasitta and Pietro Fasitta took the vehicle to the car wash prior to contacting law enforcement. (T. 512). The State of Florida did not produce competent, substantial evidence to contradict the Appellant s story that he did not commit the crime of felony Criminal Mischief. There was absolutely no testimony before the jury that Francesca Fasitta was the owner of the vehicle as the State of Florida never entered into evidence her vehicle registration or title proving that she was the owner of the vehicle. The only testimony regarding the value of the damage was through a witness, John DiGiovanni and who is owner of Gold Coast Collision Center, who testified that he was not present when the vehicle got in the condition, that he did not know how the vehicle got into the condition, that he did not know what condition the vehicle was in when Francesca Fasitta purchased the vehicle 13
and he did not know when the vehicle was purchased. (T. 370-378). Therefore, John DiGiovanni could not testify to any competent substantial evidence regarding the true value of the damage to the vehicle and if the Appellant was the person who caused the damage. To prove the crime of Criminal Mischief, the State of Florida must prove the following three (3) elements beyond a reasonable doubt: (1) Appellant injured or damaged personal property; (2) the property injured or damaged belonged to Francesca Fasitta; (3) the injury or damage was done willfully and maliciously. Among the means by which property can be injured or damaged under the law is the placement of graffiti on it or other acts of vandalism to it. Wilfully means intentionally, knowingly, and purposely. Maliciously means wrongfully, intentionally, without legal justification or excuse, and the with the knowledge that injury or damage will or may be caused to another person or the property of another person. Fla. Stat. 806.13(1)-(2). There was not any testimony, competent testimony, that the Appellant injured or damaged personal property. The State of Florida did not prove that the damage was done willfully, meaning intentionally and knowingly. The burden of proof for maliciously is, in fact, from the sole eyewitness, Pietro Fasitta, and he interchanged the word accident several times rather than using the word incident throughout his testimony about the allegations against the Appellant. As far as the damage belonging to 14
Francesca Fasitta, the State of Florida did not meet their burden of proving the vehicle was owned and was titled to Francesca Fasitta. As far as the State of Florida proving the actual damage amount, all the State of Florida entered into evidence was testimony of an estimate that was done on a 2004 model vehicle that could have been damaged prior to the allegations. The State of Florida s own witness, John DiGiovanni, who did the estimate of Francesca Fasitta s vehicle, even testified that he had no idea when the vehicle was damaged, how it was damaged and what had damaged the vehicle. Furthermore, there was absolutely no testimony or competent substantial evidence of an alleged chemical that was thrown by the Appellant on to Francesca Fasitta s vehicle. Not one witness was able to testify as to what was allegedly thrown onto the vehicle and if the substance that was allegedly thrown was the reason for the damage to the vehicle. 15
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE APPELLANT S MOTION FOR TRIAL AND MOTION TO SET ASIDE THE VERDICT WHEREIN THE STATE FAILED TO PROVIDE SUBSTANTIAL COMPETENT EVIDENCE THAT WAS ADEQUATE TO SUPPORT A CONVICTION The Trial Court committed reversible error by denying the Appellant s Motion for New Trial pursuant to Florida Rule of Criminal Procedure 3.620. The sufficiency of the evidence standard also used in a Judgment of Acquittal requires that a Trial Court determine as a matter of law whether the evidence presented was adequate to support a conviction. Ferebee v. State, 967 So.2d 1071, 1072 (Fla. 2d DCA 2007). The Appellate Court defers to those factual findings supported by competent, substantial evidence, but reviews de novo the application of the law to the facts. Wyatt v. State, 71 So.3d 89 (Fla. 2011). The Trial Court shall grant a Motion in Arrest of Judgment pursuant to Florida Rule of Criminal Procedure 3.610 only on one (1) or more of the following grounds: (a) the Indictment or Information on which the Defendant was tried is so defective that it will not support a Judgment of Conviction; (b) the Court is without jurisdiction of the cause; (c) the verdict is so uncertain that it does not appear therefrom that the Jurors intended to convict the Defendant of an offense of which the Defendant could be convicted under the Indictment or Information under which the Defendant was tried; and (d) the Defendant was convicted of an 16
offense for which the Defendant could not be convicted under the indictment or information under which the Defendant was tried. The verdict appears to be so uncertain that it does not appear therefrom that the Jurors intended to convict the Appellant under the Information that the Appellant was tried. The Trial Court views the evidence in light most favorable to the State, th including all proper inferences. United States v. Burks, 547 F.2d 968 (6 Cir. 1976). In determining the sufficiency of the evidence, the question is whether, after viewing the evidence in light most favorable to the State of Florida, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt. Simmons v. State, 934 So.2d 1100, 1111 (Fla. 2006); Durousseau v. State, 55 So.3d 543 (Fla. 2010). Competent substantial evidence is evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred...relevant evidence as a reasonable mind would accept as adequate to support a conclusion. DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957). It is for the Court to determine, as a threshold matter, whether the State of Florida has been able to produce competent, substantial evidence to contradict the Appellant's story. There was absolutely no competent evidence that the act of Criminal Mischief was committed by the Appellant and in fact the only eye witness to the incident, Pietro Fasitta, referred to the allegation as an accident which is the opposite of wilful and malicious. The State of Florida did not prove 17
that the act was done willfully, meaning intentionally and knowingly by the Appellant. The State of Florida did not meet their burden of proving that the vehicle was owned and was titled to Francesca Fasitta. As far as the State of Florida proving the actual damage amount, all the State of Florida put into evidence was testimony of an estimate that was done on a 2004 model of a vehicle that could have been damaged prior to the allegations against the Appellant. The State of Florida s own witness, John DiGiovanni, who did the estimate of Francesca Fasitta s vehicle, even testified that he had no idea when the vehicle was damaged, how it was damaged and what had damaged the vehicle. Furthermore, there was absolutely no testimony or competent substantial evidence what alleged chemical was thrown by the Appellant on to Francesca Fasitta s vehicle. Not one witness was able to testify as to what was allegedly thrown onto the vehicle causing it damage and if the substance that was allegedly thrown was the reason for the damage to the vehicle. Under Florida Rule of Criminal Procedure 3.580, when a verdict has been rendered against the Defendant or the Defendant has been found guilty by the Court, the Court on a motion by the Defendant, or on its own motion, may grant a new Trial or Arrest Judgment. The Trial Court committed reversible error by failing to grant the Appellant s Motion for New Trial and Motion to Set Aside the Verdict. 18
CONCLUSION The Trial Court committed reversible error by denying the Appellant s Motion for Judgment of Acquittal. The State of Florida did not introduce competent evidence which is inconsistent with the Appellant s theory of events. It is for the Court to determine, as a threshold matter, whether the State of Florida has been able to produce competent, substantial evidence to contradict the Appellant s story. Therefore, it is the Court's duty to grant a Judgment of Acquittal to the Appellant as to the charged offense, as well as any lesser-included offenses not supported by the evidence. The State of Florida failed to prove a prima facie case of guilt of the charge of felony Criminal Mischief and did not produce any competent substantial evidence as the only evidence that was produced was testimonial evidence from a witness with serious biases and motives. The Trial Court committed reversible error by failing to grant the Appellant s Motion for New Trial and Motion to Set Aside the Verdict. 19
CERTIFICATE OF SERVICE I HEREBY CERTIFY that an original has been furnished electronically to the Florida E- Portal and a true copy to Laura Fisher, Esquire, (Laura_Fisher@myflorida.legal.com), Office of th the Attorney General, by service at (CrimAppWPB@myfloridalegal.com, on the 28 day of February, 2014. /s/eric T. Schwartzreich Eric T. Schwartzreich, Esquire Florida Bar #0086452 Marla A. Chicotsky, Esquire Florida Bar #43539 Schwartzreich & Associates th 208 S. E. 6 Street Fort Lauderdale, Florida 33301 (954) 525-8000 (954) 525-8331 facsimile 20
CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Initial Brief complies with the font requirements of Florida Rules of Appellate Procedure 9.210(a)(2) in that this brief is prepared in Times New Roman 14 point font. /s/eric T. Schwartzreich Eric T. Schwartzreich, Esquire Florida Bar #0086452 Marla A. Chicotsky, Esquire Florida Bar #43539 21