JACQUELINE PHILIPPOUSSI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jacqueline Philippoussi was convicted of grand theft for opening a joint bank account with an elderly woman and withdrawing funds. The Florida appellate court reversed because the trial court's jury instruction on the good faith defense was improper—it permitted the jury to consider good faith as mere circumstantial evidence rather than establishing it as a complete defense to the charge.
The court held that good faith is a complete defense to grand theft, and a jury instruction that presents good faith as merely circumstantial evidence to be weighed alongside other factors is improper and reversible error. The jury must be instructed that if the defendant acted with good faith belief in the victim's consent, conviction is precluded.
[1] A good faith belief that the owner consented to the taking of money is a complete defense to a charge of grand theft.
[2] A jury instruction that suggests good faith is merely circumstantial evidence, rather than a complete defense, is insufficient in a theft prosecution.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If the Defendant had a good faith belief that Frances Duhm consented to her having the money, she cannot be guilty of grand theft.”
The requested jury instruction establishing good faith as a complete defense to grand theft
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Join FLexlaw to unlock all legal intelligenceAppellant opened a joint bank account with an elderly woman (Frances Duhm) and withdrew funds from it. The appellant and the victim had a close relati…
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[*512] KLEIN, Judge.
Appellant was convicted of grand theft as a result of a transaction with an elderly woman. The charges were based on the opening of a joint bank account under circumstances in which the woman may not have realized what was happening, and the removal of funds from that account by the appellant. We reverse because the trial court failed to give a proper jury instruction on a good faith defense.
Appellant’s theory of defense was based on her close relationship with the woman, who had previously made appellant the co-owner of two substantial bank accounts with rights of survivorship. The woman had, according to some witnesses, considered appellant the daughter she never had, and had made statements to the effect that she was going to leave appellant and appellant’s son everything she had.
Appellant requested the following jury instruction:
If the Defendant had a good faith belief that Frances Duhm consented to her having the money, she cannot be guilty of grand theft.
The trial court refused to give that instruction, but instead gave the following one:
If Jacqueline Philippoussi had a good faith belief that Frances Duhm consented to the defendant’s having the money, you may consider that as you would any other item of circumstantial evidence in determining whether the defendant is guilty of grand theft.
Appellant argues that the instruction given was insufficient because it did not inform the jury that good faith was a complete defense.
In Rodriguez v. State, 396 So. 2d 798 (Fla. 3d DCA 1981), the managers of a motel had failed to remit to the owner some funds received from room rental and were convicted of grand theft. They had admitted they had retained the funds, but claimed they were entitled to do so under their financial arrangement with the owner. The trial court refused to give a good faith instruction similar to that requested in the present case, and the third district reversed for a new trial, citing numerous cases to the effect that good faith can be a complete defense to a crime of theft.
Recently, in United States v. Cavin, 39 F. 3d 1299 (5th Cir.1994), the fifth circuit reversed a fraud conviction because the instruction which was given did not inform the jury that if the defendant was acting in good faith a conviction was precluded, explaining:
The district court charged the jury that it “may” acquit the defendants if it found that they acted in good faith. A good faith defense is the “affirmative converse of the government’s burden of proving ... intent to commit a crime.” Acquittal is not optional upon a finding of good faith, as the court erroneously charged; it is mandatory because a finding of good faith precludes a finding of fraudulent intent. The implication of the charge as given was that the jury could convict without finding fraudulent intent.
39 F. 3d at 1310. (footnote omitted).
We find that the instruction which the court gave in the present case suffers from a similar deficiency and reverse for a new trial. We have considered appellant’s other points and find them to be without merit.
FARMER and SHAHOOD, JJ., concur.
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Citator
Cited By
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Cliff Berry, Inc. v. State, 116 So. 3d 394 (Fla. 3d DCA 2012)…it); Evans v. State, 831 So. 2d 808, 810-11 (Fla. 4th DCA 2002) (finding the evidence required the requested instruction where the testimony of the defendant and his family members supported the defendant’s theory of defense); Philippoussi v. State, 691 So. 2d 511, 512 (Fla. 4th DCA 1997) (finding that the defendant, who was charged with taking advantage of an elderly woman after being added as a signatory on the woman’s bank accounts by removing funds from the account, was entitled to a non-defective good fa…1 / 2
Authorities Cited
- Rodriguez v. State, 396 So. 2d 798 (Fla. 3d DCA 1981)