WILLIAM DUDLEY ACKERMAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ackerman was convicted of possession of a stolen vehicle and aggravated assault after a bench trial. He appealed arguing the state failed to prove nonconsent to possession of the vehicle because the owner's daughter, who had authorized possession, did not testify. The court affirmed, holding that nonconsent may be inferred from circumstantial evidence and the state adequately proved possession of the specific stolen vehicle.
The conviction for possession of a stolen vehicle is affirmed because nonconsent may be inferred from circumstantial evidence rather than requiring direct testimony from all persons with knowledge, and the state proved appellant possessed the specific vehicle reported stolen. The conviction for aggravated assault is affirmed because appellant failed to move for directed verdict or new trial, precluding appellate review of evidentiary sufficiency.
[1] Nonconsent to the possession of a stolen vehicle may be proven by circumstantial evidence, not solely by direct testimony.
[2] A conviction for possession of a stolen vehicle requires proof that the defendant possessed the same vehicle that was reported missing.
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“Nonconsent does not always require proof by direct evidence, but may be inferred by circumstantial evidence.”
Establishes the legal standard that nonconsent in theft cases need not be proven through direct testimony and may be established circumstantially.
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Join FLexlaw to unlock all legal intelligenceAppellant was tried without a jury and convicted of possession of a stolen vehicle and aggravated assault, receiving concurrent four-year sentences. T…
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HENDRY, Judge.
Appellant, defendant in the trial court, was tried non-jury and convicted of possession of a stolen vehicle and aggravated assault. He was sentenced thereon to serve four years in the state penitentiary on each charge, the sentences to run concurrently.
Appellant attacks his conviction for possession of a stolen vehicle on the grounds that the state failed to prove every essential element of the crime: to-wit: non-consent and possession of the same automobile that was reported missing.
It is appellant’s theory that nonconsent was not proven because the state only called the owner of the vehicle in question, Mr. Espy Ward, to testify. Mr. Ward stated that he had authorized his daughter, Linda, to have possession of the car, and it was stolen on July 16, 1971 while she was at work. Appellant argues that the state’s failure to produce the testimony of Linda Ward, who at the time of trial was in Idaho, resulted in a lack of proof of the element of nonconsent to possession of the automobile.
Appellant cites Albritton v. State, Fla. 1921, 81 Fla. 684, 88 So. 623, in which a defendant was convicted of stealing a cow. The court reversed because only three of the cow’s six owners testified, noting that nonconsent may not be presumed from a taking. The Albritton case is inapposite in the instant case.
Nonconsent does not always require proof by direct evidence, but may be inferred by circumstantial evidence. Johnson v. State, Fla.1946, 157 Fla. 328, 25 So. 2d 801. In the cause sub judice, the trial obviously found nonconsent based on circumstantial evidence.
The record also demonstrates that the state proved that the appellant was in possession of the same vehicle which had been reported stolen.
On August 17, 1971 Lt. Palmara, a City of Miami Police Officer, recognized the car parked at a motel as matching the description of the vehicle earlier reported stolen. He and another officer then remained staked out across the street in an unmarked car until appellant and a second man emerged. The officers then permitted appellant to drive the car away from the motel, after which appellant was stopped and arrested. We find this case to be distinguished from Morgan v. State, Fla.App. 1966, 186 So. 2d 795, relied upon by appellant. .
Appellant’s final point challenges his conviction for aggravated assault resulting from a subsequent arrest. Our review of the record indicates that the evidence was sufficient to sustain the conviction. See Bass v. State, Fla.App.1970, 232 So. 2d 25. Moreover, appellant never made a motion for a directed verdict or a new trial at his trial upon the charge, and he is therefore precluded from raising the sufficiency of the evidence on appeal. Mancini v. State, Fla.1973, 273 So. 2d 371.
Therefore, for the reasons stated and upon the authorities cited, the judgments and sentences appealed are affirmed.
Affirmed.
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G. A. D. v. State, 340 So. 2d 522 (Fla. 3d DCA 1976)…217 So. 2d 567 (Fla.1968). The State responds and contends that more than flight was established and that, therefore, from the totality of the circumstances as described in the evidence the appellant was guilty as charged, citing Ackerman v. State, 292 So. 2d 433 (Fla. 3rd DCA 1974). We concur with the appellant. The mere showing that an individual flees from a scene is not sufficient to establish criminal conduct at or about the scene. The case relied on by the State had the additional element of evidence…
Authorities Cited
- Bass v. State, 232 So. 2d 25 (Fla. 1st DCA 1970)
- Mancini v. State, 273 So. 2d 371 (Fla. 1973)
- Albritton v. State, 81 Fla. 684 (Fla. 1921)
- The Grand Lodge of Knights of Pythias of N. Am. v. Stokes, 81 Fla. 699 (Fla. 1921)
- Sparks Johnson v. State, 157 Fla. 328 (Fla. 1946)
- Morgan v. State, 186 So. 2d 795 (Fla. 3d DCA 1966)