Mathis v. State, 4D02-49.

• Decision Date: 26 November 2003
• Docket Number: No. 4D02-49.,4D02-49.
• Citation: 859 So.2d 1265
• Parties: Keith MATHIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

859 So.2d 1265

Keith MATHIS, Appellant, v. STATE of Florida, Appellee.

No. 4D02-49.

District Court of Appeal of Florida, Fourth District.

November 26, 2003.

Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Keith Mathis was charged with three counts by information: count one charged that Mathis unlawfully delivered cocaine to I. Jackson, count two charged that Mathis unlawfully had cocaine in his possession with the intent to sell, manufacture or deliver it and count three charged that Mathis unlawfully obstructed or opposed I. Jackson, a police officer, during his lawful arrest. This appeal arises from the entry of a final order sentencing Keith Mathis to ten years incarceration after a jury found him guilty of possession of cocaine with intent to sell and resisting arrest without violence. For the reasons outlined below, we reverse as to the resisting without violence.

At trial, the state first called police officer Kimberly Hancock. Hancock was working with officer Jackson on April 14, 2000, in an undercover capacity, purchasing narcotics. The undercover officers parked in front of an apartment complex and Mathis approached the vehicle. Officer Jackson asked Mathis for $40. Jackson then gave Mathis the money. Hancock saw Mathis go to a parked vehicle, reach in to the vehicle near the glove box, then return with the narcotics. After the narcotics were passed to the officer, a "move in" signal was given by Jackson and uniformed officers arrived on the scene.

When the signal was given, Detectives Bruce, Sierra, and Brogna moved in. Mathis attempted to flee. After Mathis was caught, the officers checked the vehicle and recovered twenty-nine additional baggies of cocaine and nine baggies of rock cocaine from the vehicle. Jackson explained that Mathis did not run from him, he ran from the officers who moved in to make the arrest. Officer Brogna's testimony also confirmed that Mathis did not run from Jackson, rather he ran from the uniformed officers. At the close of the case, the jury was instructed in relevant part as follows:

Before you can find the defendant guilty of possession of cocaine, the State must prove the following four elements beyond a reasonable doubt.

One, Keith Mathis possessed a certain substance.

And Two, the substance was cocaine.

And three, Keith Mathis had knowledge of the presence of the substance.

And four, Keith Mathis had knowledge of the illicit nature of the substance.

No objections were made to this jury instruction. The jury found Mathis guilty of possession of cocaine with the intent to sell or deliver, and guilty of resisting arrest without violence, as charged in the information. Mathis was sentenced to ten years in prison.

Mathis first contends the trial court erred in denying his motion for judgment of acquittal on count three, resisting arrest without violence. We agree. "On appeal of a denial of a motion for judgment of acquittal where the State submitted direct evidence, the trial court's determination will be affirmed if the record contains competent and substantial evidence in support of the ruling." Conde v. State, 860 So.2d 930, 2003 WL 22052316 (Fla.2003). "A motion for judgment of acquittal should only be granted if there is no view of the evidence from which a jury could make a finding contrary to that of the moving party." Perry v. State, 846 So.2d 584 (Fla. 4th DCA 2003). (quoting Jeffries v. State, 797 So.2d 573, 580 (Fla.2001)).

The information in this case provided, in relevant part, as follows:

Keith Mathis on the 14th day of April, A.D.2000, in the County and State aforesaid, did unlawfully obstruct or oppose I. Jackson, a duly qualified and legally authorized enforcement officer of the Fort Lauderdale Police Department ...

Mathis contends that the evidence in this case was that Mathis was arrested by a team of officers that did not include Jackson. This court addressed this issue in Burns v. State, 584 So.2d 1073 (Fla. 4th DCA 1991). The relevant facts of Burns are as follows:

Two police officers responded to an armed robbery broadcast and encountered Burns in a convenience store parking lot. As soon as he saw the officers, he ran away. The officers gave pursuit and their police dog caught and bit him and knocked him to the ground. Burns jumped up and begged the officers to shoot him because he did not want to return to prison, while they attempted to put handcuffs on his flailing arms. One officer struck Burns on the head with his weapon, and in the act dropped the gun. Burns immediately picked it up and pointed the weapon at that

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