Garmon v. State, 4D99-509.

• Decision Date: 04 October 2000
• Docket Number: No. 4D99-509.,4D99-509.
• Citation: 772 So.2d 43
• Parties: Richard GARMON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

772 So.2d 43

Richard GARMON, Appellant, v. STATE of Florida, Appellee.

No. 4D99-509.

District Court of Appeal of Florida, Fourth District.

October 4, 2000.

Rehearing Denied December 12, 2000.

Michael J. Entin of Law Offices of Michael J. Entin, Fort Lauderdale, and Neal Gary Rosensweig of Neal Gary Rosensweig, P.A., Coral Gables, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, Gentry Denise Benjamin and Georgina Jimenez-Orosa, Assistant Attorneys General, West Palm Beach, for appellee.

STETTIN, HERBERT, Senior Judge.

Richard Garmon appeals from his conviction and concurrent three year prison sentences for possession of cannabis and possession of a firearm by a convicted felon. The trial court denied his motion for judgment of acquittal for failure to prove the corpus delicti of the crimes charged, independent of his self-incriminating statements. We affirm his convictions for the reasons that follow.

Underlying Facts

On January 9, 1998, members of the Broward County Sheriff's Selective Enforcement Team executed a search warrant at a single family house in Fort Lauderdale, Florida, occupied by Garmon and his girlfriend Susan Armento. They rented the premises and lived there as a couple. Detective Baker had conducted surveillance of the house approximately twelve times in the month prior to the execution of the search warrant, during which he observed a number of people come to the house, stay for only a few minutes and then leave. Baker, suspecting drug activity, conducted a "trash pull", consisting of a search of garbage which Garmon placed in the swale area in front of the house. He found mail addressed to Garmon, together with leafy material and seeds which tested positive for cannabis.

Garmon and Armento were both present when the warrant was served. Garmon was handcuffed, given his Miranda warnings, and seated on a couch. According to Baker, Garmon then "told his girlfriend to go ahead and show us where everything was." Garmon also told the officers there was cannabis behind a bedroom mirror and he mentioned a scale on the floor in a bedroom.

After being told by Garmon to do so, Armento showed the officers cannabis located behind the bedroom mirror, behind an air conditioning return duct in a hallway, in a bedroom drawer, and, after being searched, on her own person. In total, the police recovered over two hundred thirty grams of cannabis, together with the scale and some plastic baggies found in a bedroom. The police testified that Garmon showed no reaction or emotion when the contraband was found. It is undisputed that none of the cannabis was found in plain view or in an area of the house controlled only by Garmon.

During the search Garmon was asked whether he had any weapons. The officers knew at the time he was a convicted felon. Garmon told them he had an archery bow in the bedroom and that he had guns in his Ford Bronco truck parked in the driveway. He told the police the firearms were located behind the driver's seat and in the rear of the truck, stating he had placed them in the truck in preparation for a hunting trip. An officer obtained the truck keys from Garmon who also told them of the existence and location of a "kill switch" (apparently, an anti-theft device). The police searched the vehicle and found the firearms where Garmon said they would be. There was a .44 caliber pistol and ammunition in a gun case behind the seat, and a rifle and shotgun placed together in a gun case in the rear of the truck. Garmon first said that the guns belonged to him; later, he told the officers that the weapons belonged to Armento. One officer confronted Garmon with the fact that as a convicted felon he was not allowed to be in possession of firearms. Garmon responded that he "thought that my right to carry weapons was reinstated automatically after five years after being out of prison."

At trial, the state presented evidence that the truck was registered and insured in Garmon's name. During the search of the truck, the officer found another man's wallet containing a driver's license on the floor in front of the passenger seat.

Garmon was charged with possession of cannabis, possession of a firearm by a convicted felon, and possession of drug paraphernalia. The drug paraphernalia charge was later dismissed. Armento was charged with possession of cannabis. She pleaded guilty and was placed on probation.

At the conclusion of the state's case, Garmon moved for a judgment of acquittal, arguing that the state had failed to prove the corpus delicti as to both charges, independent of his self-incriminatory statements. His motion was denied and it was denied again when it was renewed at the conclusion of all of the evidence.

The state's evidence consisted of the testimony of Baker and another officer who was present when the warrant was executed. Garmon presented the testimony of Armento who claimed she bought the cannabis for her personal use in order to alleviate migraine headaches. She did not explain the presence of the scale and plastic baggies, nor did she comment on Garmon's instructions telling her to show the cannabis to the officers. She produced bills of sale in her name for two of the weapons stating she and Garmon had been preparing for a hunting trip in central Florida with several friends. She said Garmon hunted with a bow and arrows, "that she alone used the guns", that Garmon's friends had access to the Ford truck, and that one of his friends loaded the guns and camping gear into the truck earlier on the day the warrant was served.

Three friends of Garmon testified. Each affirmed that while they did not know whether Garmon used marijuana, they said that Armento did. Two also said Armento owned and used the firearms and that Garmon did not. One witness, Wayne Faust, testified he drove the truck on the day in question. He claimed that he loaded the truck with the guns and camping gear at Armento's direction. It was his wallet and driver's license which were found in the truck.

Discussion

In order to convict Garmon of the crimes with which he was charged, the state was required to prove the corpus delicti of each offense. The state had to prove:

(1) that a crime of the type charged was committed; and (2) that the crime was committed through the criminal agency of another. In regard to the first part—that a crime was committed— each element of the relevant offense must be shown to exist. With respect to the second part—the criminal agency of another—the proof need not show the specific identity of the person who committed the crime. That is, it is not necessary to prove that the crime was committed by the defendant.

Franqui v. State, 699 So.2d 1312, 1317 (Fla.1997), cert. denied, 523 U.S. 1097, 118 S.Ct. 1582, 140 L.Ed.2d 796 (1998) (citations omitted).

Ordinarily, proof of the corpus delicti of the crime charged is required before a confession or admission against interest may be received in evidence. See Burks v. State, 613 So.2d 441, 443-44 (Fla. 1993); Davis v. State, 730 So.2d 837, 838 (Fla. 4th DCA 1999). Although it is preferable that such proof be received first, "a subsequent prima facie showing will cure a premature admission." McIntosh v....