IN THE TENTH JUDICIAL CIRCUIT
FOR HARDEE, HIGHLANDS, AND POLK COUNTY, FLORIDA

COUNTY CASE NO.: MM01-2673A-XX

APPEAL NO.: DD-66

DEANE PEACHEE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

__________________________

ORDER OF THE COURT

This is an appeal from the county court of Polk County, Judge Michael E. Raiden presiding. Appellant raises one issue on appeal; whether the trial court erred in denying his motion for judgment of acquittal. This court has jurisdiction. Fla. R. App. P. 9.030(c)(1)(A). The verdict and sentence of the county court is affirmed.

I.

On February 12, 2001, Ms. Bukowy and fellow loss prevention employee Larry Dickey were performing their normal duties for Wal-Mart. They proceeded to follow two individuals through the store to the hardware department. Ms. Bukowy watched an individual named Mr. Acker while Mr. Dickey followed the Appellant. Upon entering the store, Mr. Acker stopped and obtained from the people greeter a pink refund sticker, which he placed on a bag located in his shopping cart. Appellant and Mr. Acker then proceeded to the hardware department. Mr. Acker removed a power painter from the shelf and placed the pink refund sticker on it. He then proceeded to the customer service desk where he attempted to obtain a refund on the painter. After he was denied a refund because he had neither a driver’s license nor a receipt, Mr. Acker summoned the Appellant. The Appellant produced his driver’s license, signed the refund slip and was given a gift card. The value of the power painter was $99.96, which after tax totaled $105.96. The value of the gift card refunded to Appellant was $105.96. Appellant handed the gift card to Mr. Acker and both men exited the store. Ms. Bukowy and Mr. Dickey then approached the men and asked them to come inside the security office for questioning.

Appellant was charged with one count of petit theft, a first degree misdemeanor in violation of §812.014 Florida Statutes (2000). At the close of the State’s case and again before the case was submitted to the jury, defense counsel moved for a judgment of acquittal arguing that the value of the item in question did not exceed that $100.00 as set forth in the charging document. Both defense motions for judgment of acquittal were denied and the case was presented to the jury. After being given instructions, the jury posed a question to the court as follows: "in determining the value, should the tax amount be included?" The court instructed the jury that the value should be determined based on the definition provided and that it is a fact question that the court could not answer for the jury. Following deliberations, the jury returned a guilty verdict as to petit theft and found that the property value exceeded $100.00 or more. The court sentenced Appellant to 179 days in county jail and ordered him to pay court costs and fines amounting to $1,000.00.

On appeal, the appellant argues that the trial court erred in denying his motion for judgment of acquittal because the charge should have been reduced from first degree misdemeanor to a second degree misdemeanor based on the market value of the item in question.

II.

In moving for a judgment of acquittal, the movant admits facts in evidence and every conclusion favorable to the state=s case that the jury might reasonably infer. State v. Blanco, 702 So.2d 597 (Fla. 2d DCA 1997); Lynch v. State, 293 So.2d 44, (Fla. 1974). A motion for a directed verdict of acquittal should not be granted unless it is apparent that no legally sufficient evidence has been submitted upon which a jury could convict. Brown v. State, 294 So.2d 128 (Fla. 3d DCA 1974); Spera v. State, 656 So.2d 550 (Fla. 2d DCA 1995). So long as competent, substantial evidence supports the jury=s verdict, it will not be overturned on appeal. Woods v. State, 733 So.2d 980 (Fla. 1999); Peterka v. State, 640 So.2d 59, 68 (Fla. 1994). Substantial evidence is evidence which a reasonable mind might accept as an adequate support for the conclusion reached. Cohen v. State, 99 So.2d 563 (Fla. 1957).

Pursuant to §812.012(10)(a)(1) Florida Statutes (2001), value is defined as "the market value of the property at the time and place of the offense, or is such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense."

Appellant argues that the market value as it pertains to the petit theft charge should be $99.96, which is the value of the power painter before taxes. Appellant contends that the value of the loss to Wal-Mart was less than $100 because the proceeds from the sales tax go directly to the State of Florida. Therefore, Wal-Mart had no possessory interest in the tax. The Appellee asserts that the value of the loss to Wal-Mart is the amount of the gift card, which was $105.96, and not the value of the power painter, which was less than $100.

III.

Having reviewed the record in this case, the court finds that there was competent sufficient evidence to support the jury’s finding. Though the painter was valued at $96.96, it was used as a means of fraudulently obtaining the gift card. In turn, the gift card could have either been redeemed or it could have been used to purchase good totaling $105.96. Therefore, the jury properly concluded that the value of Wal-Mart’s loss was in excess of $100, which would legally support the charge of first degree petit theft. The Court finds that the trial court did not err in denying Appellant’s motion for judgment of acquittal.

Accordingly, the ruling of the county court is AFFIRMED.

ORDERED this day of June 2002.

CHARLES B. CURRY, Chief Judge