Chicone v. State

• Decision Date: 24 October 1996
• Docket Number: No. 85136,85136
• Parties: 21 Fla. L. Weekly S458 Jerry Jay CHICONE, III, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 736

684 So.2d 736

21 Fla. L. Weekly S458

Jerry Jay CHICONE, III, Petitioner, v. STATE of Florida, Respondent.

No. 85136.

Supreme Court of Florida.

Oct. 24, 1996.

Rehearing Denied Dec. 10, 1996.

Terrence E. Kehoe of the Law Offices of Terrence E. Kehoe, Orlando; and James M. Russ and Tad A. Yates of the Law Offices of James M. Russ, P.A., Orlando, for Petitioner.

Robert A. Butterworth, Attorney General and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.

ANSTEAD, Justice.

We have for review Chicone v. State, 658 So.2d 1007 (Fla. 5th DCA 1994). We accepted jurisdiction based upon conflict with numerous decisions, including: Skelton v. State, 609 So.2d 716, 717 (Fla. 2d DCA 1992); Moffatt v. State, 583 So.2d 779, 781 (Fla. 1st DCA 1991); Kuhn v. State, 439 So.2d 291, 293 (Fla. 3d DCA 1983); Brown v. State, 428 So.2d 250, 252 (Fla.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983); and Wale v. State, 397 So.2d 738, 739 (Fla. 4th DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We hold that guilty knowledge is an element of possession of a controlled substance under section 893.13(1)(f), Florida Statutes (1991), and possession of drug paraphernalia under section 893.147(1), Florida Statutes (1995). However, we find that the State was not required to allege guilty knowledge in the information charging petitioner.

PROCEEDINGS TO DATE

Jerry Jay Chicone, III, was convicted of possession of cocaine, a third-degree felony, ¹ and possession of drug paraphernalia, a LAW and ANALYSIS

                first-degree misdemeanor. 2  On appeal, Chicone claimed that the trial court should have dismissed the information because neither count thereof alleged the essential element of knowledge.  Chicone also asserted that the trial court erred in refusing to instruct the jury that the State had to prove he knew the substance he possessed was cocaine and the object he possessed was drug paraphernalia.  The district court rejected these contentions, affirmed Chicone's convictions, but reversed on several sentencing issues
                

Guilty Knowledge

We hold that guilty knowledge is part of the statutory offenses charged. Initially, we note that the state of the law on this issue is unclear, and many of the decisions discussing the issue turn on the nature and extent of the proof required to prove possession of a contraband substance rather than the precise issue we address today. In addition, the cases often turn on whether actual possession or constructive possession is charged, with some decisions suggesting that guilty knowledge must be shown in constructive possession cases but not in actual possession cases.

An excellent example of the uncertainty is provided in the case of Green v. State, 602 So.2d 1306 (Fla. 4th DCA 1992), wherein the panel of judges issued three separate opinions. Judge Farmer authored a majority opinion finding the evidence was sufficient to support Green's conviction for possession of a small amount of cocaine. Judge Farmer's opinion expressed the view that guilty knowledge is required in trafficking cases but not in "simple" drug possession offenses. Judge Stone's special concurrence disputed the validity of this distinction:

In my judgment, the legislature's intent is that the evidence required and permissible inferences are the same for both possession and trafficking by possession, but for the additional required proof of the weight of the drugs.

Id. at 1310. Judge Glickstein dissented to the holding that the evidence was sufficient to establish Green's knowledge.

Medlin

Long ago, we held in a prosecution for unlawful possession of liquor that "[t]here must ... be a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession." Reynolds v. State, 92 Fla. 1038, 1041, 111 So. 285, 286 (1926). However, since that time we have not been entirely clear on the issue in drug possession cases. Two of our decisions issued in 1973 are illustrative. In State v. Medlin, 273 So.2d 394 (Fla.1973), we quashed a district court decision which had found the evidence insufficient to sustain Medlin's conviction for unlawfully delivering an illegal drug to another, and explained:

Defendant, in the instant case, is charged with the commission of the statutory offense of unlawfully delivering to another To reiterate, the State was not required to prove knowledge or intent since both were presumed from the doing of the prohibited act. Defendant's attempt, by way of defense, to prove lack of knowledge was rebutted by the Driggers girl's testimony which the jury was entitled to accept over that of the defendant.

                a barbiturate or central nervous system stimulant.  Proof that defendant committed the prohibited act raised the presumption that the act was knowingly and intentionally done.   Defendant then sought to prove lack of knowledge as to the nature of the drug delivered to Cathy Driggers.  But the testimony of the Driggers girl, that he told her one capsule would make her "go up" and another pill was to be taken when she came down from the high, is evidence that defendant was aware of the nature of the drug involved.  The proper arbiter was the jury
                

Id. at 397 (emphasis added). Medlin is the case most cited for the proposition that guilty knowledge is not an element of a simple possession crime. However, by our holding, we substantially begged the question of the nature of the guilty knowledge required by the statute.

We held in Medlin that a jury question was presented as to whether the "defendant was aware of the nature of the drug involved." Id. That is, we held that the State established a prima facie case and sufficient proof that the "defendant was aware of the nature of the drug" to get the case to the jury. That's a far cry from holding that guilty knowledge is unnecessary. Of course, if the defendant's awareness of the nature of the drug was not a necessary component of the crime, there would be no need for the jury to resolve that issue. Medlin stands for the proposition that evidence of actual, personal possession is enough to sustain a conviction. In other words, knowledge can be inferred from the fact of personal possession.

Shortly after Medlin, we reversed a First District Court decision upholding a conviction for drug possession, and held the evidence was insufficient on the essential element of the defendant's knowledge of the contraband drug. See Smith v. State, 279 So.2d 27 (Fla.1973). It is apparent in Smith that we required proof of the knowledge of the contraband in order to sustain a conviction for simple possession. Of course, Smith was a joint possession case, and our comments requiring proof of the "essential knowledge" on the defendant's part must be taken in that context. Medlin and Smith mirror much of the confusion in the case law on the issue of guilty knowledge in drug possession cases.

Frank

In Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967), the court expressly held that knowledge of the illicit nature of the substance possessed was an element of the crime of possession. Judge Wigginton's opinion in Frank contains one of the clearest expressions of the reason knowledge is required in a possession offense:

Scienter constitutes a factual issue to be resolved by the jury upon proper instructions as to the legal principles pertinent to its consideration. This is not a mere technicality in the law, but a legal principle which must be observed in order to safeguard innocent persons from being made the victims of unlawful acts perpetrated by others, and of which they have no knowledge. It is a safeguard which must be preserved in the interest of justice so that the constitutional rights of our citizens may be preserved. For these reasons it is our view that the error committed by the trial judge so infects the judgment that it should not be permitted to stand.

Id. at 121; see also Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965). Similarly, in Rutskin v. State, 260 So.2d 525 (Fla. 1st DCA 1972), the court restated the rationale for requiring guilty knowledge:

There was no evidence that the appellant had knowledge that the unopened parcel contained marijuana. The fact that he happened to be the addressee of the parcel obviously does not supply the evidence that he knew that the parcel contained marijuana or any other contraband. If this were not so, any innocent person could be convicted of possession of marijuana just because Id. at 526. Our Medlin opinion expressly distinguished Frank because Frank involved constructive possession as opposed to the case of actual possession involved in Medlin. Medlin similarly distinguished Rutskin. ³

he happens to be the recipient of a package containing marijuana.

Oxx

Perhaps the most comprehensive discussion of the issue is contained in Judge Cowart's opinion in State v. Oxx, 417 So.2d 287 (Fla. 5th DCA 1982). ⁴ In Oxx, the Fifth District discussed a statute which made it unlawful to possess certain contraband articles on the grounds of any county detention facility. At issue was whether the statute was unconstitutional due to a lack of a scienter element. The court held that the constitutional issue was mooted because guilty knowledge was an element of the statute, as it was in other criminal possession statutes:

In its order, the trial court held that the failure of the statute to expressly require mens rea or scienter made unknowing possession a criminal offense. This is not correct. Knowledge of possession is generally considered a part of the definition of possession as used in criminal statutes making possession a crime. Section 893.13, Florida Statutes (1981), prohibiting the actual or constructive possession of a controlled substance, and its predecessors, have never specifically required "knowing" possession, yet possession has always been defined to include knowledge of the same. A similar construction has been placed...