Ashley v. State

• Decision Date: 13 April 2006
• Docket Number: No. 5D04-2680.,5D04-2680.
• Citation: 925 So.2d 1117
• Parties: Irvin ASHLEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

925 So.2d 1117

Irvin ASHLEY, Appellant, v. STATE of Florida, Appellee.

No. 5D04-2680.

District Court of Appeal of Florida, Fifth District.

April 13, 2006.

James S. Purdy, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

Irvin Ashley ["Ashley"] appeals an order revoking his community control. Ashley had been convicted of a number of drug offenses and was on probation. On March 16, 2004, he was arrested and charged with violating his probation by committing three new law violations: possession of marijuana, maintaining a drug dwelling, and possession of drug paraphernalia. An evidentiary hearing was held on the violations.

Evidence was presented that some time before March 16, 2004, the police department had received complaints of continuous traffic in and out of a residence at 413 Bronson Street in Palatka. Because of the complaints, Detectives Hagar and Meredith of the Palatka Police Department conducted two trash pulls at the residence within a thirty-day period. In the trash that was confiscated, the detectives found "[c]annabis, baggies, mail, paraphernalia." They also found mail addressed to Ashley, which helped them to identify who was staying at the residence. Detective Hagar was then able to use this information to obtain a search warrant, which he and eight members of an entry team executed around 4:45 a.m. on March 5, 2004.

Detectives Hagar and Meredith testified that they found both cocaine and marijuana when executing the warrant, although none was found on Ashley's person. They went upstairs immediately upon gaining entry to the home and met Ashley coming out of the master bedroom, which he was sharing with his girlfriend. She was found to be in possession of crack cocaine, which she attempted to flush down a toilet when she went to use the restroom. Additional crack cocaine was found in her wallet in the master bedroom. Two men, one of whom was Ashley's stepbrother, Optavis Oliver ["Oliver"], were sleeping on the floor in a second bedroom. No drugs were found in this area. The third bedroom was empty.

Varying amounts of drugs and drug paraphernalia were found in the living areas of the home. In the downstairs living room, in plain sight, some marijuana was found on a T.V. stand. A one gram baggie of cannabis was found on an end table. Also lying on the end table were some of Ashley's personal effects. They included a brochure from his grandmother's funeral, some keys and some photographs. Gramsize plastic baggies were found in the dining room area. In the kitchen, they found two different kinds of scales, one digital and one metal, and more gram-size plastic baggies.

Outside, a marijuana cigarette was found in the ashtray of a truck belonging to Oliver. Marijuana remains were also found on the floorboards, and there was an odor of marijuana in the vehicle. However, no drugs were found in a second vehicle, which belonged to Ashley.

No evidence was offered by the State that Ashley owned or leased the residence at 413 Bronson Street. Nor was any evidence offered that he was paying rent on the property. Detective Meredith said he did not know who owned the residence or if it was leased. Detective Hagar testified that the house was owned by an unnamed third party. He had attempted to make contact with the owner to determine whether the property was leased, but had been unsuccessful. He said they had also searched utility and other records and came up with several names, but not Ashley's. Detective Hagar did not know what authority Ashley had over the residence, "[o]ther than just we knew that's where he was laying his head every night." He had no idea how long Ashley had been staying at the residence. Detective Meredith testified that he had no knowledge of who had the right to control access to the house, "other than finding mail, and, you know, as far as going on the stuff that was in there, you know, to find out who was staying, who was occupying the house." Detective Meredith said that they had found mail addressed to Ashley at the residence during one of the trash pulls.

Ashley offered the testimony of two witnesses. Oliver, claimed responsibility for the marijuana and baggies found inside the residence and in his vehicle. He claimed that on the night the warrant was executed, he had arrived at the residence after everyone was asleep. He often stayed at the residence, as did a number of other unnamed people. Oliver had smoked some marijuana in his truck and brought some marijuana and some baggies inside. He said that Ashley had told him not to bring any stuff inside his house because Ashley was on community control. Oliver claimed he had already pled guilty to possession of the marijuana and paraphernalia they found in the house.

Ashley himself testified that he moved into 413 Bronson Street on January 5, 2004. He said that the house was also occupied by Mr. Mulberry, "the guy that I moved in with", who was his "cousin's old man." In fact, it was Mr. Mulberry's name on the lease. The warrant was executed approximately two months after Ashley moved in. Ashley testified that before his arrest, he had successfully completed eight and one-half months of drug offender community control, two separate drug classes and a twelve-step narcotics anonymous class. He had never failed any of the random urinalyses which he had taken weekly. Ashley denied knowing of any drugs or drug paraphernalia in the home.

Defense counsel moved for a judgment of acquittal at the close of all the evidence, arguing that the evidence was insufficient to show that Ashley possessed drugs or paraphernalia. He also objected that the evidence was insufficient to show that he had maintained a drug dwelling, as it failed to show that Ashley controlled the residence or had knowledge of the drugs located on the premises.

The trial court agreed that the evidence was insufficient to show that Ashley possessed any of the drugs or paraphernalia found during the search. However, the court found the evidence sufficient to show that Ashley had "maintained a drug dwelling," in violation of section 893.13(7)(a)5, Florida Statutes (2003), which makes it unlawful for any person:

To keep or maintain any store, shop, warehouse, dwelling, building, vehicle boat, aircraft, or other structure or place which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.

Section 893.13(7)(a)5, Florida Statutes (2003), has been interpreted by the Second District Court of Appeal in State v. De La Llana, 693 So.2d 1075 (Fla. 2d DCA 1997), which is the only case to have discussed the elements of the offense. There, the court determined that "keep" means "conduct or manage" and "maintain" means to "carry on." The Second District concluded that the statute could be applied to one acting in a managerial capacity for a business because he has the requisite control over the location. In reaching this conclusion, the court also analogized the offense to the criminal offense of keeping or maintaining a place for the purpose of gambling:

Our conclusion is further buttressed by utilizing the principles of Tingley [v. Brown, 380 So.2d 1289, 1290 (Fla.1980)], and analyzing how the terms "keep" and "maintain" have been construed by an appellate court in the context of another criminal statute, section 849.01, Florida Statutes (1995), which prohibits in part the keeping or maintaining of a place for the purpose of gambling, and which part has remained virtually unchanged since its enactment in 1887. See ch. 3764, § 1, at 145, Laws of Fla. (1887). In Perlman v. State, 269 So.2d 385 (Fla. 4th DCA 1972), the court reviewed the sufficiency of the evidence to sustain a conviction under this part of the statute. It first noted that in order to prove this particular offense the state must establish that a defendant had "ownership or control of a place" where habitual gambling has occurred with the defendant's knowledge, consent, or direction. Id. at 387 (emphasis added). The court further observed that the gravamen of the offense is not gambling as such or habitual use of property for gambling but instead "is the maintenance or keeping of a place for gambling purposes." Id. (emphasis added). Based on this statutory analysis, it affirmed the conviction of one of the appellants relying in part on evidence that he was the manager of the premises. Id. at 388-89; see also Reinmiller v. State, 93 Fla. 462, 111 So. 633 (1927) (affirming conviction of appellant under same part of statute whom evidence established was the manager and operator of premises). Thus, as construed within the context of an analogous criminal statute, the concept of "keep or maintain" contemplates conduct involving control over a place in a managerial capacity.

Id. at 1078-79 (emphasis added).

As De La Llana indicates, the essence of the offense of keeping or maintaining a drug dwelling is not the drug activity, but the maintenance or keeping of a dwelling for the purpose of using, keeping or selling controlled substances. As the dissent notes, this is a "crack house" statute, designed to eliminate the use of structures as destinations for people to visit for the purpose of using or dealing drugs. Not every residence where drugs are used is a crack house. The offense clearly requires proof that the property be maintained for the illicit purposes identified and that the defendant had ownership or control of 413 Bronson Street such that the activity took place at his direction or with his consent. Here, such proof was lacking, even by a preponderance of the evidence.¹ See, e.g., Bufford v. State, 844 So.2d 812 (Fla. 5th DCA 2003).

REVERSED.

TORPY, J., concurs....