Johnson v. State, No. 89-02650

CourtCourt of Appeal of Florida (US)
Writing for the CourtPARKER; RYDER, A.C.J., and ALTENBERND
Citation569 So.2d 872
Parties15 Fla. L. Weekly D2746 Aubrey Lee JOHNSON, Appellant, v. STATE of Florida, Appellee.
Decision Date09 November 1990
Docket NumberNo. 89-02650

Page 872

569 So.2d 872
15 Fla. L. Weekly D2746
Aubrey Lee JOHNSON, Appellant,
v.
STATE of Florida, Appellee.
No. 89-02650.
District Court of Appeal of Florida,
Second District.
Nov. 9, 1990.

Page 873

James Marion Moorman, Public Defender, and Megan Olson, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.

PARKER, Judge.

Of the two issues Aubrey Johnson raises in this appeal, we find merit in that portion of his appeal which challenges the judgment against him for possession of cocaine with intent to sell. Johnson argues that the state failed to establish the corpus delicti for the crime and that his confession should not have been admitted during trial. We agree.

Although Johnson's testimony disputes that of the arresting officers, the officers testified that Johnson was approached after he ran a stop sign while driving his automobile and that Johnson gave permission for the officers to search his automobile. As a result of that search, the officers found a small clear plastic bag containing a white substance later determined to be cocaine on the hump between the front seats and Johnson's car keys lying under the bag. The total weight of the cocaine was less than one gram.

Johnson was arrested and taken to the police department where he waived his Miranda rights and gave a taped statement. In the statement, after initially denying that the cocaine was his, Johnson admitted that it was his cocaine but that he had given it to a friend. Finally, he stated that he planned to sell the cocaine.

It is a long established principle in Florida that a defendant's confession to a crime cannot be the sole basis for that defendant's conviction for that crime; there must be prima facie evidence of the crime charged independent of the defendant's admission. Jordan v. State, 560 So.2d 315 (Fla. 1st DCA 1990); Finney v. State, 550 So.2d 1194 (Fla. 1st DCA 1989). Although we can find no case in Florida which sets forth the corpus delicti for the crime of possession of cocaine with the intent to sell, it would appear that the state

Page 874

would have to show prima facie evidence that Johnson:

1. Possessed cocaine;

2. Knew it was cocaine; and

3. Had the intent to sell the cocaine. 1

See Fla.Std.Jury Instr. (Crim.) 893.13(1)(a).

In this instance, there is no prima facie evidence that Johnson intended to sell the cocaine. All the state established in its case was that Johnson's automobile contained a bag of rock cocaine on the hump in between the seats within the exclusive ready reach of Johnson. This evidence is sufficient to infer knowledge by Johnson of the cocaine's presence and his actual or constructive possession of the cocaine, establishing the corpus delicti of possession, but in no way does that evidence demonstrate the element of Johnson's intent to sell that cocaine. There may be circumstances, not found in this case, where the amount of the cocaine or other factors may establish prima facie evidence of the crime of possession of cocaine with the intent to sell. However, the only evidence of an intent to sell cocaine in this instance is Johnson's admission of that intent, which standing alone is not permitted to establish the offense charged. See Jordan; Finney.

Johnson raises this principle for the first time as a basis for reversal in this appeal arguing that it is fundamental error. In Farley v. City of Tallahassee, 243 So.2d 161 (Fla. 1st DCA 1971), after overturning a conviction predicated only upon the defendant's confession, the first...

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19 practice notes
  • State v. McAdams, No. 89-423
    • United States
    • Supreme Court of New Hampshire
    • 24 de julho de 1991
    ...v. United States, 484 A.2d 570, 576 (D.C.1984), cert. denied, 471 U.S. 1067, 105 S.Ct. 2144, 85 L.Ed.2d 501 (1985); Johnson v. State, 569 So.2d 872, 874 (Fla.Dist.Ct.App.1990); People v. Foster, 190 Ill.App.3d 1018, 138 Ill.Dec. 311, 316, 547 N.E.2d 478, 483 (1989), cert. denied, 498 U.S. 8......
  • Harrison v. Sec'y, Dep't of Corr., CASE NO. 8:16-cv-704-T-23AEP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 30 de setembro de 2020
    ...corpus delicti — independent of the defendant's confession. See Burks v. State, 613 So. 2d 441, 443, 444 (Fla. 1993); Johnson v. State, 569 So. 2d 872, 873 (Fla. 2d DCA 1990). Corpus delicti has been defined as "'the fact that a crime has actually been committed, that someone is criminally ......
  • State v. Anton, No. 96-03927
    • United States
    • Court of Appeal of Florida (US)
    • 1 de outubro de 1997
    ...to prove the corpus delicti apart from the defendant's confession is fundamental error that need not be preserved. See Johnson v. State, 569 So.2d 872 (Fla. 2d DCA 1990), review denied, 581 So.2d 167 (Fla.1990); but see J.B. v. State, 689 So.2d 360 (Fla. 1st DCA), review granted, No. 90,309......
  • Baxter v. State, No. 89-02939
    • United States
    • Court of Appeal of Florida (US)
    • 13 de setembro de 1991
    ...not always allowed an uncorroborated confession to be the sole evidence establishing a greater or second offense. See Johnson v. State, 569 So.2d 872 (Fla. 2d DCA), review denied, 581 So.2d 167 (Fla.1990) (confession alone cannot increase possession of cocaine to possession with the intent ......
  • Request a trial to view additional results
19 cases
  • State v. McAdams, No. 89-423
    • United States
    • Supreme Court of New Hampshire
    • 24 de julho de 1991
    ...v. United States, 484 A.2d 570, 576 (D.C.1984), cert. denied, 471 U.S. 1067, 105 S.Ct. 2144, 85 L.Ed.2d 501 (1985); Johnson v. State, 569 So.2d 872, 874 (Fla.Dist.Ct.App.1990); People v. Foster, 190 Ill.App.3d 1018, 138 Ill.Dec. 311, 316, 547 N.E.2d 478, 483 (1989), cert. denied, 498 U.S. 8......
  • Harrison v. Sec'y, Dep't of Corr., CASE NO. 8:16-cv-704-T-23AEP
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 30 de setembro de 2020
    ...corpus delicti — independent of the defendant's confession. See Burks v. State, 613 So. 2d 441, 443, 444 (Fla. 1993); Johnson v. State, 569 So. 2d 872, 873 (Fla. 2d DCA 1990). Corpus delicti has been defined as "'the fact that a crime has actually been committed, that someone is criminally ......
  • State v. Anton, No. 96-03927
    • United States
    • Court of Appeal of Florida (US)
    • 1 de outubro de 1997
    ...to prove the corpus delicti apart from the defendant's confession is fundamental error that need not be preserved. See Johnson v. State, 569 So.2d 872 (Fla. 2d DCA 1990), review denied, 581 So.2d 167 (Fla.1990); but see J.B. v. State, 689 So.2d 360 (Fla. 1st DCA), review granted, No. 90,309......
  • Baxter v. State, No. 89-02939
    • United States
    • Court of Appeal of Florida (US)
    • 13 de setembro de 1991
    ...not always allowed an uncorroborated confession to be the sole evidence establishing a greater or second offense. See Johnson v. State, 569 So.2d 872 (Fla. 2d DCA), review denied, 581 So.2d 167 (Fla.1990) (confession alone cannot increase possession of cocaine to possession with the intent ......
  • Request a trial to view additional results

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