Brown v. State

• Decision Date: 15 April 2009
• Docket Number: No. 4D07-4586.,4D07-4586.
• Citation: 8 So.3d 1187
• Parties: Ivory BROWN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

8 So.3d 1187

Ivory BROWN, Appellant, v. STATE of Florida, Appellee.

No. 4D07-4586.

District Court of Appeal of Florida, Fourth District.

April 15, 2009.

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant

Attorney General, West Palm Beach, for appellee.

STEVENSON, J.

Ivory Brown was tried by jury and convicted of possession of cocaine with intent to sell and possession of Xanax. In this appeal, Brown contends that the trial court erred in denying his motion for judgment of acquittal directed to the possession of Xanax charge and that improper argument by the prosecutor concerning the police officers' lack of a motive to lie rose to the level of fundamental error as to both charges. We reject the latter of Brown's claims and, without further comment, affirm his conviction for possession of cocaine with intent to sell. We find merit, however, in his claim regarding the sufficiency of the evidence on the possession of Xanax charge and reverse such conviction.

The evidence at trial established that Officer Meyers and Agent Kihei were present when a confidential informant placed a call to a "person of interest." The informant asked the individual on the other end of the call for $100 worth of crack and, ultimately, it was agreed that the pair would meet at a nearby Taco Bell. Officer Meyers and Agent Kihei drove to the Taco Bell, observed a black male matching the description provided them, and stopped the car a few blocks away. The defendant was driving the car and had a female passenger. Officer Meyers approached the car and, as the defendant exited the vehicle, he was able to smell marijuana emanating from either the defendant or the car. The defendant was nervous and shaking. As Agent Kihei was approaching the passenger, he observed the defendant make a move towards, and close, the car's center console.

Police found a cell phone in the defendant's possession and, when police dialed the number that had been dialed by the informant, the phone rang. Officer Meyers also identified the defendant's voice as the one that he had earlier heard on the other end of the call placed by the informant. Police found $429 on the defendant's person when he was searched at the scene and, when he was later searched at the police station, a baggie containing crack cocaine and a baggie containing powdered cocaine in the defendant's underwear. When the car was searched, police found a black jewelry box in the car's center console and, inside the jewelry box, they found some gold teeth caps and Xanax. The car was a rental and the defendant's name was not on the rental agreement.

Following the presentation of the State's case, the defendant's counsel moved for a judgment of acquittal on the possession of Xanax charge, arguing that the case was one of constructive presence and the evidence was simply insufficient to establish that the defendant had knowledge over the jewelry box and its contents or the ability to exercise dominion and control over the same. Following the denial of the motion for judgment of acquittal, the defendant took the stand, denying that he had been smoking marijuana and any knowledge of the drugs found in the car's console. He also denied that police found...