DARREN JOSEPH TINKER v. STATE OF FLORIDA ( 2022 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DARREN JOSEPH TINKER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3232
[June 8, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara Anne McCarthy, Judge; L.T. Case No. 18-
005619-CF-10A.
Antony P. Ryan, Regional Counsel, and Siobhan Helene Shea, Special
Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional
Counsel, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Richard Valuntas,
Assistant Attorney General, West Palm Beach, for appellee.
CONNER, C.J.
Darren Joseph Tinker (“Defendant”) appeals his judgments and
sentences after a jury found him guilty of multiple counts related to an
alleged scheme involving Defendant and his parents. Defendant raises
seven issues on appeal. However, because one issue is dispositive and
requires reversal, the remainder of the issues are moot. We hold that the
evidence was insufficient to allow the charges to proceed to determination
by a jury. The trial court erred in denying Defendant’s motion for
judgment of acquittal.
Background
Defendant, his mother, and his father were charged with multiple
counts related to an alleged scheme whereby companies created by
Defendant’s father obtained properties via fraudulent deeds.1 Defendant
was a vice president of Global Management Consulting Group Corp.
(“Global Management”) for at least some period during which the scheme
was alleged to have spanned. Defendant’s father was president of Global
Management and Defendant’s mother was also vice president of the
company. Defendant’s father and mother were also listed as corporate
officers of a related corporation, Global Homebuyers LLC (“Global Home
Buyers”) (collectively, “the Global companies”). The three co-defendants
lived in one of the properties obtained in the scheme.
The case proceeded to a jury trial with all three co-defendants
represented by the same attorney. Defendant was charged with multiple
counts of grand theft of residential properties, criminal use of personal
identification information of both living and deceased persons, and filing
false documents or records against real property. The State acknowledged
that some of the business conducted by the Global companies was
legitimate. However, it alleged that the Global companies, through
Defendant and his parents, also perpetrated fraud. During the trial, copies
of deeds which were signed by Defendant either as a representative of
Global Management or as a witness were introduced into evidence to show
Defendant’s participation in the criminal scheme. A power of attorney
used in the scheme which bore Defendant’s signature as a witness was
also introduced into evidence, as well as an eviction notice signed by
Defendant as a representative of Global Management for one of the
properties which it fraudulently obtained and then rented. Additionally, a
security visitor log was introduced into evidence from the Broward County
Governmental Center with Defendant’s name listed on seven dates, which
the State contended proved multiple instances of Defendant recording
fraudulent documents as part of the scheme.
Defendant did not contest that the various documents the State entered
at trial were fraudulent. Instead, Defendant’s theory of defense was that
he had no knowledge of the fraudulent activity and that the fraud had been
perpetrated by a rogue employee of Global Management, along with the
help of several other individuals.
Defendant was twenty-four years old at the time of trial. His father
testified that Defendant started working for the family business in high
1 Defendant’s mother and father also appealed their judgments and sentences.
Along with this opinion, we also issue a consolidated opinion reversing the
mother’s and father’s cases and remanding for a new trial. See Tinker v. State,
4D19-3235 and 4D19-3233 (Fla. 4th DCA June 8, 2022).
2
school, ran errands, and cleaned the office. Additionally, he performed
limited customer service by answering customer questions. Defendant
testified he was fired multiple times by his father because he had a terrible
work ethic. His father made him a vice president of Global Management
to keep the appearance of a family business, but he had no duties as vice
president. The State presented no evidence to conflict with the testimony
of Defendant and his parents about his limited role in the family business.
After its initial presentation of evidence, the State rested, and
Defendant moved for a judgment of acquittal. He argued that his name
came up in the investigation only because he worked for the family
company; his name on the visitor log at the recording office did not show
guilt; the State did not prove the purported signatures on documents were
his; he was only fourteen years old when the alleged fraudulent scheme
began; and there was no evidence that he knew of a fraudulent scheme or
that information in the documents filed for recording was fraudulent. The
motion was renewed at the conclusion of all evidence, incorporating the
same arguments. The trial court denied both motions.
The jury found Defendant guilty of twelve counts of unlawful filing of a
false document; twenty-seven counts of criminal use of personal
identification information; thirteen counts of criminal use of a deceased
person’s personal identification information; and fifteen counts of grand
theft, for a total of sixty-seven convictions. The trial court granted
Defendant’s motion for downward departure for sentencing and sentenced
Defendant to twenty years in prison, followed by twenty years of probation.
Defendant gave notice of appeal.
Appellate Analysis
“We review the denial of a motion for judgment of acquittal de novo.”
Demus v. State, 281 So. 3d 505, 507-08 (Fla. 4th DCA 2019). “The
question presented by such a motion is whether, in a light most favorable
to the State, the evidence is legally sufficient to support the charge.” Bright
v. State, 191 So. 3d 497, 498 (Fla. 1st DCA 2016). In other words, “an
appellate court must ‘view[] the evidence in the light most favorable to the
State’ and, maintaining this perspective, ask whether ‘a rational trier of
fact could have found the existence of the elements of the crime beyond a
reasonable doubt.’” Bush v. State, 295 So. 3d 179, 200 (Fla. 2020)
(alteration in original) (quoting Rogers v. State, 285 So. 3d 872, 891 (Fla.
2019)).
The State also alleged that Defendant acted as a principal. “In order to
be guilty as a principal for a crime physically committed by another, one
3
must intend that the crime be committed and do some act to assist the
other person in actually committing the crime.” Staten v. State, 519 So.
2d 622, 624 (Fla. 1988).
“In resisting a judgment of acquittal, the state can rely on any evidence
adduced, even evidence later determined to have been erroneously
admitted.” Pryear v. State, 243 So. 3d 479, 484 (Fla. 1st DCA 2018)
(quoting State v. Brockman, 827 So. 2d 299, 302 (Fla. 1st DCA 2002)). “A
defendant is not entitled to a judgment of acquittal ‘merely because
evidence that is critical to the court’s finding of sufficiency was improperly
admitted.’” Id. (quoting Barton v. State, 704 So. 2d 569, 573 (Fla. 1st DCA
1997)).
On appeal, Defendant does not frame his arguments around specific
counts. Instead, he frames his arguments around various categories of
evidence, contending that the State was unable to prove that he had the
requisite knowledge of the “scheme” to support guilt on the counts against
him.
In response, the State argues on appeal, as it did below, that five
categories of evidence support Defendant’s guilt: (1) he was a corporate
officer of Global Management; (2) he physically recorded some of the
fraudulent instruments; (3) he “sign[ed] and/or witness[ed] various
fraudulent documents”; (4) he lived with his parents, co-defendants in the
scheme, in one of the homes that was obtained by Global Management via
fraudulent documents; and (5) he signed an eviction notice for one of the
tenants living in one of the properties obtained by fraud. Notably, during
closing argument, the State admitted that Defendant was guilty to “a lesser
degree” than his parents.
As to the substantive crimes charged, we address the categories of
evidence relied upon by the State.
Criminal Use of Personal Identification Information and a Deceased Person’s
Personal Identification Information
“[T]he elements of fraudulent use of personal identification information
are: (1) willfully and fraudulently using or possessing with intent to
fraudulently use; (2) another person’s personal identification information;
and (3) without that person’s authorization or prior consent.” Sibley v.
State, 955 So. 2d 1222, 1226 (Fla. 5th DCA 2007); see also § 817.568(2)(c),
Fla. Stat. (2018); Fla. Std. Jury Instr. (Crim.) 20.13.
4
Although no case in Florida has addressed or interpreted section
817.568(8)(c), Florida Statutes (2018), the offense of criminal use of a
deceased individual’s personal identification information, the wording of
subsection (8)(c) is virtually the same as subsection (2)(c), thus the
elements are the same, except that the crime of criminal use of a deceased
person’s identification information requires that the victim is deceased,
rather than a living individual. Compare § 817.568(2)(c), Fla. Stat. (2018),
with § 817.568(8)(c), Fla. Stat. (2018).
The first element is the only one at issue. As to this crime, “‘[w]illfully’
means intentionally, knowingly, and purposely.” Fla. Std. Jury Instrs.
(Crim.) 20.13, 20.17 (emphasis added). “‘Fraudulently’ means purposely
or intentionally suppressing the truth or perpetrating a deception or both.”
Id.
The State’s strongest evidence against Defendant as to the first element
was that he signed 2 certain deeds and a power of attorney. However, for
two reasons, Defendant’s signature on the documents is insufficient
evidence that Defendant had knowledge of any fraudulent scheme.
First, Defendant’s signature does not appear on any documents as a
notary. Therefore, his signature was not certifying that he had satisfactory
evidence that the person signing the document was in fact the person
whom he or she purported to be. See § 117.05(5), Fla. Stat. (2018) (“A
notary public may not notarize a signature on a document unless he or
she personally knows, or has satisfactory evidence, that the person whose
signature is to be notarized is the individual who is described in and who
is executing the instrument.”).
Second, Defendant’s signature appears on seven documents admitted
into evidence by the State as either a witness or signor on behalf of Global
Management. Two exhibits are duplicates. Of the remaining five
documents, four are deeds transferring properties between the related
Global companies. More importantly, no one testified that the signatures
within the five documents were fraudulent, as the signors were all Global
Management representatives.
2Defendant also challenges the State’s evidence that it was his signature on these
documents. However, although the trial court may have erred in allowing a
detective who was not a handwriting expert to identify Defendant’s signature, the
State may still rely on this evidence in combatting Defendant’s motion for
judgment of acquittal. See Pryear, 243 So. 3d at 484.
5
Despite no testimony of fraudulent signatures, one of the four deeds
did indicate possible fraud within the document. Specifically, while that
deed is dated in 2010, Defendant’s mother signed as a notary on the deed
and her notary stamp reflects that her commission expires in 2017. There
was evidence that notary commissions are valid for only four years,
indicating potential fraud within this deed given the discrepancy between
the date of the document and the date of the expiration of the notary
commission. However, any fraud regarding the date of expiration of the
notary’s commission does not support an inference that Defendant had
knowledge of any fraud with the notarization. We doubt that the average
citizen pays attention to the expiration date on the notary’s stamp when
the citizen’s signature as a party is acknowledged by a notary or added as
a witness to a party signing, particularly because typically the notary signs
last and typically the notary stamp is applied after the notary signs.
Additionally, Defendant signed the deed with the suspect notary
expiration date as a subscribing witness. The signature of two subscribing
witnesses is required on a real estate conveyance. § 689.01, Fla. Stat.
(2018). However, the signature of a subscribing witness does not certify
that any information contained within the document is correct, but
instead, simply vouches for the other signatures on the document. See
Subscribing Witness, Black’s Law Dictionary (11th ed. 2019) (“Someone
who witnesses the signatures on an instrument and signs at the end of
the instrument to that effect.”); see also Attesting Witness, Black’s Law
Dictionary (11th ed. 2019) (“Someone who vouches for the authenticity of
another’s signature by signing an instrument that the other has signed.”).
Again, because no one testified that the signatures on any of the deeds
which Defendant signed were fraudulent, no evidence supports an
inference that Defendant had knowledge of fraud.
The fifth exhibit was a power of attorney purportedly signed by
Defendant as an attesting witness. The power of attorney granted Global
Management powers regarding a specific parcel of real property. While the
State submitted evidence of fraudulent information in relation to the
property associated with the power of attorney, the State did not submit
any evidence that the power of attorney contained any fraud. And the
State did not submit any evidence that Defendant knew of any fraudulent
information in relation to the property.
Therefore, although the State submitted evidence that properties were
obtained by the Global companies through fraudulent documents, the
State did not submit any evidence upon which a rational juror could find
beyond a reasonable doubt that Defendant had knowledge of fraudulent
activity. Just because Defendant signed or witnessed a deed from one
6
Global entity to another entity does not provide even circumstantial
evidence that he knew fraudulent activity was involved in the transaction.
The State did not submit any evidence that Defendant knew the
background or substance of any of the documents on which his signature
appears or he filed for recording.
As to the State’s contention that evidence that Defendant (1) was a
corporate officer for Global Management during some portion of the years
the fraudulent activity occurred, (2) recorded some of the fraudulent
documents, (3) lived in one of the homes that was obtained by fraud, and
(4) signed an eviction notice for one of the properties, we conclude that
none of such evidence, singularly or in combination, is sufficient to prove
beyond a reasonable doubt that Defendant knew of fraudulent activity to
effectuate or assist the criminal scheme.
The fact that Defendant was listed as a corporate officer in one of his
father’s corporations is not sufficient to prove knowledge of criminal
activity. The State argues a presumption exists that Defendant knew of
the fraudulent actions of Global Management as a corporate officer, citing
to United Bonding Insurance Co. v. Dura-Stress, Inc., 243 So. 2d 244 (Fla.
2d DCA 1971). However, United Bonding is a civil case which concluded
that a corporate officer’s affidavit was not insufficient because he did not
state that the affidavit was made from his own personal knowledge. Id. at
246. The Second District said:
It is generally held that when an officer of a corporation makes
an affidavit in its behalf, it is not necessary that he should
state the sources of his knowledge, or information and belief.
An officer must be possessed of the requisite knowledge, but
such knowledge on his part is presumed.
Id. (citation omitted). However, regarding presumptive knowledge, a
distinct difference exists between the scenario of a corporate officer
executing an affidavit (inherently a statement of facts) and a corporate
officer signing a document pertaining to a parcel of real property as a party
or witness, including an attesting witness. Simply stated, United Bonding
does not support the contention that, in a criminal case, each corporate
officer of a company should be presumed to have knowledge of criminal
activity charged in relation to corporate acts.
Additionally, the State did not submit any evidence in this case to show
that Defendant had any responsibilities for or knowledge of fraudulent
activity because of his position as corporate officer, or that his position
was anything more than a name on paper. Cf. State v. Petagine, 290 So.
73d 991, 994 (Fla. 1st DCA 2020) (finding evidence sufficient to survive a
motion to dismiss where the defendant was the leader of the executive
council of a fraternity, directed all fraternity activities, and “had the
organizational and actual authority to stop all acts of hazing conducted by
all members of the [f]raternity”).
The fact that Defendant lived with his family in one of the houses which
was obtained through fraudulent documents also does not support that
he had any knowledge or involvement in a scheme. The State did not
submit any evidence that Defendant was anything other than a young
person living in his parents’ house. We doubt that children from high
school age to age twenty-four necessarily know the intricate details of the
ownership interest in their parents’ home, particularly if a corporate entity
owns the home.
Finally, the fact that Defendant recorded some of the fraudulent deeds
does not provide evidence that he did so with the knowledge or intent to
defraud. Cf. Watkins v. State, 826 So. 2d 471, 474–75 (Fla. 1st DCA 2002)
(finding that the trial court erred in denying the defendant’s motion for
judgment of acquittal as principal to a charge of forgery where, although
there was evidence that the defendant uttered the counterfeit check, there
was no evidence he “falsely made, altered, forged or counterfeited the
check or that he did some act or said some word that was intended to and
did incite or cause another individual to counterfeit the check”).
Similarly, the State’s evidence that Defendant signed an eviction
document does not demonstrate that he had knowledge that the Global
companies obtained ownership of that property by fraud. These are
actions which would have occurred in the regular course of business
handling real properties. The State did not contend at trial that all the
Global companies’ business involved fraud, and evidence was submitted
that the Global companies engaged in some legitimate business. The
actions which the State alleges support Defendant’s conviction do not
indicate that Defendant had any knowledge of any fraudulent transactions
in addition to legitimate transactions. Thus, without more, the evidence
which the State submitted does not provide a sufficient basis upon which
a rational juror could find beyond a reasonable doubt that Defendant knew
or intended fraud.
We agree with Defendant that Javellana v. State, 168 So. 3d 283 (Fla.
4th DCA 2015), a case with analogous facts, is instructive. In Javellana,
the defendant was charged with financial exploitation of an elderly or
disabled adult. Id. at 284. The defendant and his wife, a co-defendant,
were well acquainted with the victim, an elderly woman with “a vast
8
financial estate.” Id. The wife worked at an investment firm and began
assisting with the victim’s account in the early 1980s. Id. In the mid-
1990s, the victim executed a will, including several trusts, which provided
for long-term care of the victim’s adult children who were incapable of
independent living. Id. Beginning in 2008, the victim made multiple
amendments to her estate documents, through an attorney who was a
“good friend” of the wife. Id. The wife referred the victim to her attorney
friend. Id. The defendant and the wife also witnessed the victim’s
execution of some amendments to her estate documents, and the
defendant would “chauffeur[]” the victim on errands. Id. The amendments
resulted in the defendant and the wife being residual beneficiaries of the
victim’s estate. Id.
After noting that the defendant was charged as a principal, we
concluded that the evidence against him was insufficient to support a
conviction:
While we do not decide whether there was sufficient evidence
to establish that the defendant’s wife exploited [the victim], we
find the evidence was insufficient, however, to allow the jury
to infer that the defendant aided and abetted or otherwise
willingly participated in any such exploitation. The state
points to no evidence establishing that the defendant was ever
aware that [the victim] was amending her estate documents
to benefit the defendant and his wife. There was no evidence
that the defendant was involved in arranging the appointment
for a court-ordered mental competency evaluation or that the
defendant even spoke to his wife about [the victim’s] estate.
There was simply no evidence that the defendant knew
anything about [the victim’s] estate or of any plan by his wife
to exploit [the victim]; thus, there was no evidence of his
conscious intent that the crime be committed.
Id. at 285. 3
Like Javellana, even if (1) Defendant received a residual financial
benefit of the fraud because of his position as an officer in Global
Management; (2) served as a witness on documents (without proof of
knowledge of fraud); (3) lived in his parents’ house, obtained by fraud; and
3In Javellana, our analysis additionally opined that the State’s case did not rebut
the defendant’s reasonable hypothesis of innocence. 168 So. 3d at 285. This
additional basis for reversal was under the old special standard for circumstantial
evidence.
9
(4) his family members were part of a scheme, we hold that such evidence,
singularly and in combination, is insufficient to support an inference
beyond a reasonable doubt that Defendant had any knowledge that fraud
was occurring.
Unlawful Filing of Documents or Records Against Real Property
Pertinent to the facts of this case, the crime of unlawful filing of
documents or records against real property has three elements: (1) the
defendant filed an instrument; (2) at the time, the defendant had the intent
to defraud or harass another; and (3) the instrument contained a
materially false, fictitious, or fraudulent statement or representation that
purported to affect an owner’s interest in the property described in the
instrument. In re Standard Jury Instructions in Criminal Cases-Report No.
2016-02, 199 So. 3d 234, 239 (Fla. 2016).
On the second element—the intent to defraud and harass another—the
State’s evidence fails. Although Criminal Standard Jury Instruction 20.22
does not contain any instructions on the intent to defraud or harass
element of the crime, clearly a person cannot intend to engage in
fraudulent activity without knowledge of the fraudulent nature of the
activity. Cf. Anchor Prop. & Cas. Ins. Co. v. Trif, 322 So. 3d 663, 675 (Fla.
4th DCA 2021) (“Indeed, in jurisprudence, ‘the word “false” implies
something more than mere untruth: it imports knowledge and a specific
intent to deceive.’” (quoting State v. Tedesco, 397 A.2d 1352, 1358 (Conn.
1978))).
Again, viewing the evidence in a light most favorable to the State, no
rational juror could find beyond a reasonable doubt that Defendant had
any knowledge of fraud, let alone that it was his intent to perpetrate
deception. No evidence was presented that Defendant signed or presented
documents to knowingly certify any information he knew to be fraudulent.
No evidence was presented that he knowingly witnessed a fraudulent
document. Moreover, for the same reasons discussed above, the State’s
additional evidence regarding Defendant’s residence, his name listed as an
officer for his father’s company, and his recording of several fraudulent
documents, is not sufficient to establish his knowledge, and therefore, his
intent to engage in unlawful filing of documents or records against real
property.
Grand Theft
10
Finally, the three foundational elements for a charge of grand theft 4 are:
(1) knowingly (2) obtaining or using, or endeavoring to obtain
or use, property of another (3) with intent to deprive the
person of a right to the property or a benefit therefrom, or to
appropriate the property to one’s own use or to the use of any
person not entitled thereto.
Pizzo v. State, 945 So. 2d 1203, 1207 (Fla. 2006) (quoting Donovan v. State,
572 So. 2d 522, 526 (Fla. 5th DCA 1990)). For the same reasons as with
the other counts filed against Defendant, the evidence described above
does not support a finding that Defendant had the requisite knowledge or
intent.
Conclusion
Accordingly, viewing the evidence in the light most favorable to the
State, a rational juror could not have found the existence of the knowledge
and intent elements of each of the crimes charged against Defendant
beyond a reasonable doubt. See Bush, 295 So. 3d at 200. We hold that
the trial court erred in denying Defendant’s motion for judgment of
acquittal as to all the charges against him, and reverse and remand for the
trial court to vacate the judgments and sentences entered against
Defendant and for entry of a judgment of acquittal as to all charges.
Reversed and remanded for entry of a judgment of acquittal.
GROSS and MAY, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4 Defendant was charged with monetary theft, which includes an additional
element. However, that element is not at issue.
11