P. v. Mohamed CA2/7 ( 2013 )

Filed 3/13/13 P. v. Mohamed CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B240176
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA069610)
v.
EHAB MOHAMED,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Susan
M. Speer, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Linda C. Johnson
and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
Appellant Ehab Mohamed appeals his judgment of conviction of two counts of
1
attempted grand theft of personal property (Pen. Code, §§ 664, 487, subd. (a)). After
entering into an agreement with a medical device manufacturer to lease certain surgical
equipment, Mohamed attempted to sell the equipment to a prospective third party buyer.
On appeal, Mohamed contends that the evidence was insufficient to support his
convictions because he had a good faith belief that he owned the equipment at the time he
attempted to sell it. Because there was substantial evidence supporting each conviction,
we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Prosecution Evidence
Mohamed was charged with the attempted grand theft of personal property
belonging to Sound Surgical Technologies (count 1) and Nikki Rasmussen (count 2).
Sound Surgical is a Colorado-based company that designs, manufactures, and sells
medical devices, including a liposuction system called the Vaser. The Vaser system is
comprised of three main components (the VentX Console, the Vaser Amplifier, and the
Precision Fluid Management System), along with several smaller instruments. In 2007,
the sale price of the Vaser system was between $65,000 and $85,000. A medical
practitioner could purchase the entire system outright, or alternatively, purchase the
smaller instruments and enter into a lease agreement with Sound Surgical for the three
larger pieces of equipment.
Jodi Emert worked for Sound Surgical as a territory manager in the Los Angeles
area. In July 2007, Emert met with Mohamed, a physician, at his Beverly Hills office to
discuss Mohamed’s interest in the Vaser system. At that time, Emert had been working
for Sound Surgical for a few months and was unaware that the company both sold and
leased the Vaser system. Rather, in Emert’s experience, the main components of the
1 All further statutory references are to the Penal Code.
2
system were only available for lease and the smaller disposable components were only
available for sale.
At their initial meeting, Emert provided Mohamed with a three-page document
entitled “License and Use Agreement.” In addition to discussing the Vaser system,
Emert reviewed the various terms of the agreement with Mohamed. Mohamed did not
sign the agreement at that time. Instead, a few weeks after their initial meeting, Emert
was informed that Mohamed had faxed the signed agreement to Sound Surgical’s
corporate office. After arranging for delivery of the Vaser system to Mohamed, Emert
had a second meeting with Mohamed at his Beverly Hills office to set up the equipment
and provide on-site training. She provided Mohamed with a one-page “Acceptance of
Equipment” form which he also signed and returned to Sound Surgical. Emert never told
Mohamed at any time that he owned the system.
Douglas Foote was general counsel for Sound Surgical. According to Foote, the
three-page License and Use Agreement was the sole agreement used by the company to
lease its medical devices. The first page of Mohamed’s agreement stated that Sound
Surgical granted Mohamed “‘a nonexclusive and nontransferable license to use the
equipment specified in schedule one,’” and “‘schedule one is attached to and
incorporated in this agreement.’” The first page further provided that Sound Surgical
“‘retain[ed] at all times sole and exclusive ownership of the equipment specified in part A
of schedule one.’” The second page stated that Mohamed would pay Sound Surgical “‘a
one time fee of $12,000 plus freight and applicable sales or use tax which will entitle you
to ownership of all of the equipment in parts B, C and D of schedule one,’” as well as
cover the cost of installation, training, and introductory marketing materials. The second
page also specified that Mohamed would pay Sound Surgical a fee of $395 for each
2
procedure performed using the system. The third and final page of Mohamed’s
2 Using an electronic counter in the Vaser Amplifier that would record the number
of procedures performed, a physician was required to regularly upload the data from
the counter to a website maintained by Sound Surgical. There was no usage fee when
a physician purchased the entire Vaser system.
3
agreement set forth schedule one and specifically listed the VentX Console, the Vaser
Amplifier, and the Precision Fluid Management System in part A of that schedule.
Mohamed’s signature appeared on the second page of the agreement.
Following Mohamed’s execution of the agreement, Sound Surgical mailed an
invoice to him at his Encino office. The invoice listed the items that had been shipped to
Mohamed at his Beverly Hills office and the initial amounts that he owed. The invoice
showed a charge of $10,000 for the instrumentation set that Mohamed had purchased for
use with the Vaser system, and no charge for the three main components of the system
(the VentX Console, the Vaser Amplifier, and the Precision Fluid Management System).
The invoice also showed a separate charge of $2,000 for installation of the system, plus
an additional amount for shipping and sales tax. Although Mohamed made an initial
payment of $2,000, he did not pay the balance due within 30 days as provided in the
agreement. After repeated collection attempts by Sound Surgical, the matter was referred
to Foote.
On February 18, 2008, Foote sent a letter to Mohamed stating that Sound Surgical
previously had given him notice that it was terminating the agreement due to Mohamed’s
failure to pay an outstanding balance of $9,535.10. The letter also stated that Sound
Surgical had attempted to retrieve the Vaser system from Mohamed’s office pursuant to
the lease termination and Mohamed had refused to release the system to its agent. Foote
informed Mohamed that Sound Surgical had hired a California law firm to recover the
system and the money owed, but offered him the option of returning the system and
paying the sum of $8,600 as a final resolution of the matter.
On February 20, 2008, in response to Mohamed’s request that the agreement not
be terminated, Foote sent another letter to Mohamed setting forth a payment proposal.
The letter stated that Sound Surgical would allow Mohamed to retain the Vaser system if
he agreed to pay the total outstanding balance of $9,535 within one week and sign two
authorization forms permitting Sound Surgical to withdraw future payments directly from
his bank account and to charge his credit card in the event the automatic bank withdrawal
ever failed. The letter included a line for Mohamed’s signature. The following week,
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Foote received from Mohamed the signed February 20, 2008 letter, two signed
authorization forms, and a check for $9,535.10. Mohamed thereafter continued to use the
Vaser system.
On May 20, 2009, Sound Surgical filed a Uniform Commercial Code (UCC)
financial statement with the California Secretary of State certifying a lien on the Vaser
components leased to Mohamed, including the VentX Console, the Vaser Amplifier, and
the Precision Fluid Management System. Prior to 2009, Sound Surgical had not filed
UCC statements for any of its Vaser systems because it primarily sold the system rather
than leased it. However, by 2009, the company determined that it had leased a large
number of Vaser systems to physicians across the country and decided to protect its
ownership interests in such property by filing UCC statements.
In June 2010, Mohamed notified Sound Surgical that the Vaser Amplifier
component of the system was not working properly. Sound Surgical provided Mohamed
with a loaner amplifier while it serviced the original part, which it then returned to
Mohamed. At some later point, Mohamed again became delinquent in his usage
payments. Sound Surgical terminated the agreement at that time and demanded that
Mohamed return the Vaser system and pay the money owed. Mohamed offered to pay
the outstanding balance, but refused to return the system.
In late 2010, Sound Surgical hired a California attorney, Dean Prober, to recover
both the Vaser system and the unpaid balance from Mohamed. After sending a demand
letter to Mohamed, Prober filed a civil complaint against him along with an application
for a prejudgment writ of possession. At a December 2010 hearing attended by Prober
and Mohamed’s attorney, the trial court in the civil matter denied the writ application
without prejudice. On April 7, 2011, Prober sent another letter to Mohamed reiterating
that Sound Surgical had terminated the License and Use Agreement. The letter also
stated that Mohamed was still liable to Sound Surgical for the amounts past due and was
required to make the Vaser system available for repossession pursuant to the terms of the
agreement. The letter was sent to Mohamed via fax, email, and certified mail at his
offices in Beverly Hills and Encino, but no response was received.
5
In July 2011, Nikki Rasmussen, the owner of a medical spa in Connecticut, was
interested in purchasing a liposuction system. She saw a listing for a Vaser system on
eBay with a starting bid of $20,000 and a “buy it now” price of $30,000. Based on her
research, Rasmussen was aware that the Vaser system could be either purchased or leased
and included three major pieces of equipment, each with its own identifying information.
Rasmussen sent a message to the seller through the eBay website asking various
questions about the advertised Vaser system, including whether the seller was the original
owner. She received a response from Mohamed stating that he was the original owner
and a cosmetic surgeon liquidating his practice and moving abroad.
Rasmussen subsequently communicated with Mohamed via telephone and email
about a potential sale. Mohamed indicated that he did not have a bill of sale or cancelled
check confirming his original purchase, but assured Rasmussen that he owned the system
outright. Mohamed also conveyed a sense of urgency in completing the transaction and
repeatedly called Rasmussen asking how soon she could send a check. Rasmussen
offered to purchase the system for $19,000 provided that Mohamed signed a release
stating that there were no outstanding liens. In response, Mohamed sent an email to
Rasmussen in which he represented that the system was paid for in full at the time of
purchase and that Sound Surgical did not accept leases. Mohamed told Rasmussen that
she could check for any UCC filings on liens. Mohamed also sent Rasmussen an invoice
reflecting an asking price of $20,000 and stating that title to the system was clear and free
from any liens, leases, or loans.
Using one of the serial numbers shown in photographs of the system provided
by Mohamed, Rasmussen checked for UCC filings on the system and contacted Sound
Surgical. After being informed by Sound Surgical that the system was not owned by
Mohamed, Rasmussen contacted the Los Angeles Police Department on or about
July 20, 2011 to report her concern that Mohamed was attempting to sell property to
her that he did not own. Detective Lisa Lawson investigated Rasmussen’s report and
then set up a sting operation involving 10 officers to take place at Mohamed’s office.
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At Detective Lawson’s direction, Rasmussen arranged a meeting with Mohamed
regarding her purchase of the Vaser system.
On July 22, 2011, undercover officers Denise Estrada and her partner posed as
3
representatives for Rasmussen and met with Mohamed at his Encino office. Officer
Estrada told Mohamed that she was there to inspect the Vaser system and would purchase
the system on Rasmussen’s behalf if the parts matched the information in the invoice.
Mohamed showed Officer Estrada the various components of the Vaser system and
demonstrated that the system was in working condition. After confirming that the serial
numbers on the three main components matched those provided by Detective Lawson,
Officer Estrada told Mohamed that she had to call Rasmussen. Mohamed escorted
Officer Estrada to his office where she placed an envelope containing a check on the desk
directly in front of her. She then called her supervisor and gave a predetermined signal to
enter the premises. When Officer Estrada ended the call, she saw that the envelope had
been moved across the desk close to Mohamed. Other officers arrived on the scene and
placed Mohamed under arrest.
Detective Lawson subsequently interviewed Mohamed at the police station.
Mohamed repeatedly stated in the interview that he believed he owned the Vaser system.
When shown the three-page License and Use Agreement, Mohamed acknowledged that
his signature appeared on the second page of the document, but insisted he had never
seen the third page. He asserted that the lease aspect of the agreement solely pertained to
his use of the technology associated with the system. Mohamed also indicated that he
was involved in an ongoing litigation with Sound Surgical over the system and that the
trial court’s refusal to issue a writ of possession to Sound Surgical proved he was the
rightful owner.
3 On June 16, 2011, Mohamed was evicted from his Encino office due to his failure
to pay the rent, but was allowed limited access to the office on July 22, 2011 by building
management for the purpose of removing his belongings.
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II. Defense Evidence
Mohamed testified on his own behalf. On July 30, 2007, Mohamed met with
Emert at his office. Emert was a “slick” salesperson and seemed anxious for Mohamed
to sign a contract. She did not advise Mohamed to read the contract carefully, but rather
stated that he should glance at it and sign it if he wanted the Vaser system. Emert never
mentioned the term “license” or “lease” in their meeting. When Mohamed asked Emert
about the term “license agreement,” she explained that it was similar to a cell phone
contract where the customer purchased the phone and paid the provider for minutes used.
She told Mohamed that he was buying the system for $12,000 and that Sound Surgical
would charge him $395 for each procedure performed. When Mohamed asked if the
agreement was similar to a software license, Emert answered in the affirmative. Based
on Emert’s statements, Mohamed believed he was purchasing the Vaser system and
obtaining a license to use the technology associated with the system. Emert never
provided Mohamed with the third page of the agreement. Mohamed solely signed the
second page of the agreement during their meeting and was unaware there was a third
page. Emert also did not provide Mohamed with a copy of the agreement for his records.
In Mohamed’s experience with leasing other types of medical equipment, both the
contract language and the sales representative made clear that the equipment was being
leased. Mohamed also understood there was an important tax distinction between leasing
and purchasing medical equipment because leased equipment was fully deductible
whereas purchased equipment was subject to a depreciation schedule. Because Mohamed
believed he owned the Vaser system, he treated it as a depreciated asset for tax purposes.
In 2007 or 2008, Mohamed verified there were no UCC filings relating to his Vaser
system, which reinforced his belief that he owned the system outright.
In early 2008, Mohamed had a telephone conversation with Foote about a bounced
check. Foote did not mention that Sound Surgical owned Mohamed’s Vaser system
or that the system was subject to a lease agreement. Mohamed never saw Foote’s
February 20, 2008 letter, but was told by his office manager that they were past due on a
payment under the purchase agreement. Mohamed directed his office manager to make
8
the payment and believed that his office manager likely signed Mohamed’s name to the
letter and returned it with a check to Sound Surgical.
On several occasions between 2008 and 2010, representatives from Sound
Surgical attempted to repossess the Vaser system from Mohamed whenever he failed to
timely make a payment, but Mohamed refused to relinquish the system because he
believed he owned it. In July 2010, Mohamed contacted Sound Surgical for assistance
when his Vaser Amplifier stopped working. Sound Surgical provided him with a loaner
amplifier while it made the necessary repairs and then returned the original part to him.
Mohamed believed Sound Surgical would not have returned the Vaser Amplifier to him
if he was not the rightful owner of the system.
In October 2010, Mohamed received a letter from Sound Surgical advising him
that it was terminating the lease and referring the matter to a California attorney. An
attorney representing Sound Surgical thereafter applied for a writ of possession for
Mohamed’s Vaser system. The trial court refused to grant the writ of possession, leading
Mohamed to believe Sound Surgical had no right of ownership in the system. Mohamed
was aware that Sound Surgical was still trying to recover an unspecified amount of
damages in its civil suit, but believed the issue of title to the system had been resolved in
his favor by the trial court’s ruling. In January 2011, Mohamed closed his Encino office
and allowed the lease to terminate. As a result, he never received the April 2011 letter
from Sound Surgical’s attorney.
In July 2011, Mohamed posted an advertisement on eBay seeking to sell all of his
office furniture and equipment because he was moving overseas. When Mohamed
corresponded with Rasmussen about the sale of his Vaser system, her only stated concern
was whether he owned the system outright. Mohamed encouraged Rasmussen to check
for any UCC filings as he previously had done to ensure the title was clear. He did not
intend to mislead Rasmussen and was shocked by his arrest. Throughout his interview
with Detective Lawson, Mohamed maintained his innocence and his belief that the Vaser
system belonged to him. When Detective Lawson showed Mohamed the third page of
the License and Use Agreement, he assured her that he had never seen that page before.
9
Mohamed now understood that he did not own the main components of the Vaser system
based on the third page of the agreement, but sincerely believed he was the rightful owner
until the time of his arrest.
III. Verdict and Sentencing
During deliberations, the jury initially informed the trial court that it was
deadlocked on the issue of whether Mohamed had a good faith belief that owned the
Vaser system. In response, the trial court permitted the prosecution and defense to
reopen closing arguments to address the issue raised by the jury. Following further
argument by counsel and deliberations, the jury found Mohamed guilty of both counts of
attempted grand theft of personal property. Mohamed was sentenced to a total term of
one year in county jail. He thereafter filed a timely notice of appeal.
DISCUSSION
On appeal, Mohamed challenges the sufficiency of the evidence supporting his
conviction of each count of attempted grand theft. To assess a claim of insufficient
evidence in a criminal case, “we review the whole record to determine whether any
rational trier of fact could have found the essential elements of the crime or special
circumstances beyond a reasonable doubt. [Citation.] The record must disclose
substantial evidence to support the verdict―i.e., evidence that is reasonable, credible, and
of solid value―such that a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence. [Citation.]
‘Conflicts and even testimony [that] is subject to justifiable suspicion do not justify
the reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A reversal for
10
insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support”’ the jury’s verdict.
[Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
In count one, Mohamed was charged with and convicted of the attempted grand
theft of the main components of the Vaser system from Sound Surgical. In count two,
Mohamed was charged with and convicted of the attempted grand theft of $20,000 from
Rasmussen. Although the jury was instructed on the elements of attempted grand theft
by larceny, embezzlement, and false pretenses, the prosecution’s theory at trial was that
Mohamed attempted a theft by embezzlement as to count one and attempted a theft by
false pretenses as to count two. To support a conviction of theft by embezzlement, it
must be shown that (1) an owner entrusted his or her property to the defendant; (2) the
owner did so because he or she trusted the defendant; (3) the defendant fraudulently
converted that property for his or her own benefit; and (4) when the defendant converted
the property, he or she intended to deprive the owner of its use. (People v. Beaver (2010)
186 Cal.App.4th 107, 121; CALCRIM No. 1806.) To support a conviction of theft by
false pretenses, it must be shown that (1) the defendant made a false pretense or
representation to the owner of property; (2) the defendant did so with the intent to
defraud the owner of that property; and (3) the owner transferred the property to the
defendant in reliance on the representation. (People v. Wooten (1996) 44 Cal.App.4th
1834, 1842; CALCRIM No. 1804.) An attempted grand theft requires proof that the
defendant intended to commit a grand theft of personal property and took a direct but
ineffective step toward the commission of that crime. (§ 21a; CALCRIM No. 460.)
At trial, Mohamed’s defense to each count was that he reasonably believed he owned
the entire Vaser system and thus lacked the requisite mental state for an attempted grand
theft. “An essential element of any theft crime is the specific intent to permanently
deprive the owner of his or her property. [Citation.] A good faith belief by a defendant
that the property taken is his own has long been accepted as a complete defense to theft-
related crimes.” (People v. Williams (2009) 176 Cal.App.4th 1521, 1526-1527.) As our
Supreme Court has explained, “‘[a]lthough an intent to steal may ordinarily be inferred
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when one person takes the property of another, . . . proof of the existence of a state of
mind incompatible with an intent to steal precludes a finding of either theft or robbery. It
has long been the rule . . . that a bona fide belief, even though mistakenly held, that one
has a right or claim to the property negates felonious intent. [Citations.] . . . . Felonious
intent exists only if the actor intends to take the property of another without believing in
good faith that he has a right or claim to it. [Citation.]’ [Citation.]” (People v. Barnett
(1998) 17 Cal.4th 1044, 1143.) However, “‘“[w]hether a claim is advanced in good faith
does not depend solely upon whether the claimant believes he was acting lawfully; the
circumstances must be indicative of good faith.” [Citations.]’” (People v. Russell (2006)
144 Cal.App.4th 1415, 1428.)
On appeal, Mohamed relies on the mistake-of-fact defense to support his argument
that each of his convictions must be reversed for lack of sufficient evidence. He
specifically asserts that the only reasonable inference that could be drawn from the
evidence was that he had a good faith, albeit mistaken, belief that he owned the Vaser
system outright. Contrary to Mohamed’s contention, however, there was substantial
evidence supporting his convictions. The jury was instructed on the mistake-of-fact
defense and heard the testimony offered by Mohamed regarding his asserted good faith
4
belief, but it ultimately rejected the defense in reaching its guilty verdicts. While we
must ensure that the evidence at trial was reasonable, credible, and of solid value, it was
for the jury, not this court, to weigh the credibility of the witnesses and resolve any
conflicts in the evidence.
4 The jury was instructed on the mistake-of-fact defense with CALCRIM No. 3406
as follows: “The defendant is not guilty of attempted grand theft if he did not have
the intent required to commit the crime because he reasonably did not know a fact or
reasonably and mistakenly believed a fact. [¶] If the defendant’s conduct would have
been lawful under the facts as he reasonably believed them to be, he did not commit
attempted grand theft. [¶] If you believe the defendant believed that he owned the
equipment in question and you find that belief was reasonable, he did not have the
specific intent required for attempted grand theft. [¶] If you have a reasonable doubt
about whether the defendant had the specific required for attempted grand theft, you
must find him not guilty of that crime.”
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The evidence in this case established that Mohamed and Sound Surgical entered
into a three-page License and Use Agreement which granted Mohamed a license to use
the three main components of the Vaser system in exchange for an initial fee of $12,000
and a usage fee of $395 for each procedure performed with the system. The agreement
stated that Sound Surgical would retain sole ownership of the system’s three main
components while Mohamed would own the remaining smaller instruments. Mohamed
signed the License and Usage Agreement and later received an invoice reflecting a
charge of $10,000 for the instrumentation set, a charge of $2,000 for installation, and no
charge for the three main components of the Vaser system. Based on the plain language
of the agreement and the invoice, the jury reasonably could have inferred that Mohamed
knew that he was leasing rather than purchasing the main components of the system.
Although Mohamed argues on appeal that ambiguities in the language of the
License and Usage Agreement supported his mistake-of-fact defense, he admitted at trial
that the third page of the agreement showed he did not actually own the main components
of the Vaser system. Mohamed insisted, however, that he never saw the third page until
his arrest. He also maintained that Emert, the territory manager for Sound Surgical who
proposed the Vaser system to him, told Mohamed that he was purchasing the entire
system for $12,000 and paying an additional fee of $395 for each procedure performed.
In contrast, Emert specifically testified that she explained the terms of the License and
Usage Agreement to Mohamed during their initial meeting, provided him with the
complete three-page agreement for his signature, and never told him at any time that he
owned the Vaser system outright. While Mohamed’s version of events directly
contradicted that of Emert, it was the exclusive province of the jury “‘to determine the
credibility of a witness and the truth or falsity of the facts on which that determination
depends.’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It appears that the jury chose
to credit the testimony of Emert as it was entitled to do.
The evidence at trial further showed that two attorneys representing Sound
Surgical, Foote and Prober, repeatedly corresponded with Mohamed about Sound
Surgical’s intent to enforce its ownership rights in the Vaser system. Foote testified that
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he sent written correspondence to Mohamed on multiple occasions in February 2008
regarding Mohamed’s failure to pay the amounts owed under the License and Use
Agreement and Sound Surgical’s attempts to repossess the system based on Mohamed’s
noncompliance with the agreement. Although Sound Surgical ultimately permitted
Mohamed to continue using the system following his payment of the outstanding balance,
he again became delinquent in his usage payments and Sound Surgical decided to
terminate the lease at that time. Prober testified that he sent demand letters to Mohamed
in 2010 and 2011 notifying him that Sound Surgical had terminated the License and Use
Agreement and that Mohamed was required to make the Vaser system available for
repossession under the terms of the agreement. When Mohamed refused to allow Sound
Surgical to remove the Vaser system from his office, Sound Surgical filed a civil action
to repossess the system and recover the amounts owed.
Mohamed asserts that his resistance to Sound Surgical’s attempts to repossess the
Vaser system reflected his reasonable belief that he was the rightful owner of the system.
He also argues that the trial court’s refusal to grant Sound Surgical’s application for a
prejudgment writ of possession reinforced his good faith belief that any dispute over
ownership had been resolved in his favor. However, the jury reasonably could have
found that Sound Surgical’s actions in repeatedly demanding that Mohamed return the
Vaser system and then initiating a civil suit when he refused to do so put Mohamed on
notice that the company was claiming an ownership interest in the system. At that point,
Mohamed could no longer rely in good faith on his prior search for UCC filings on the
system or Sound Surgical’s prior technical support to conclude that he owned the system
outright. The jury also could have found that Mohamed did not have a good faith belief
that the trial court’s December 2010 ruling on the writ application had fully resolved the
matter given his admission to the police that he was involved in an ongoing litigation
with Sound Surgical over the Vaser system at the time of his July 2011 arrest.
There was also evidence presented at trial that, while the civil litigation with
Sound Surgical was still pending, Mohamed posted an advertisement for the sale of Vaser
system on eBay and negotiated a sale price of $20,000 with Rasmussen after initially
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listing a price of $30,000. In response to Rasmussen’s stated concerns about whether title
to the property was free and clear, Mohamed represented to her that he owned the system
outright and had paid for it in full at the time of purchase. Mohamed never provided
Rasmussen with a copy of the License and Use Agreement nor disclosed to her that the
Vaser system in his possession was the subject of an ongoing litigation with Sound
Surgical. Mohamed points out that he advised Rasmussen to check for any UCC filings
on the Vaser system and claims he would not have done so unless he believed that he
owned the system outright. However, the jury reasonably could have inferred that
Mohamed’s failure to disclose the ongoing litigation with Sound Surgical over the system
demonstrated that he was not acting in good faith when he represented to Rasmussen that
title to the property was free and clear. The jury also could have inferred that
Mohamed’s attempt to sell a used medical device to Rasmussen for a significantly higher
sum than he had initially paid to Sound Surgical showed that he knew he had leased the
Vaser system rather than purchased it.
Under these circumstances, there was substantial evidence to support a finding that
Sound Surgical entrusted the main components of the Vaser system to Mohamed for use
under a lease agreement and that Mohamed attempted to fraudulently convert those
components for his own benefit when he offered to sell the complete Vaser system to
Rasmussen. There was also substantial evidence to support a finding that Mohamed
fraudulently represented to Rasmussen that he owned the system outright and that he did
so in an attempt to persuade Rasmussen to pay him $20,000 for property that he knew
belonged to Sound Surgical. While Mohamed points to evidence in the record that
arguably could support a mistake-of-fact defense, it ultimately was up to the jury to
determine whether to accept such evidence as true. In light of the substantial evidence
presented that Mohamed knew he did not own the property at issue, the jury’s rejection of
the mistake-of-fact defense was reasonable. Mohamed’s conviction of each count of
attempted grand theft was accordingly supported by substantial evidence.
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DISPOSITION
The judgment is affirmed.
ZELON, J.
We concur:
PERLUSS, P. J.
WOODS, J.
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