McCain v. State, 79-2066
| Decision Date | 25 November 1980 |
| Docket Number | No. 79-2066,79-2066 |
| Citation | 390 So.2d 779 |
| Parties | Robert S. McCAIN, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Alfonso C. Sepe and Alan R. Soven, Miami, for appellant.
Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
Before HUBBART, C. J., and HENDRY and NESBITT, JJ.
Robert McCain was charged by information with conspiracy to sell, deliver, possess or possess with intent to sell or deliver marijuana in violation of Section 777.04, Florida Statutes (1979). The information charged that McCain and a John Doe (known as "Tommy") conspired with each other and with Ron Braswell. Tommy was never located or arrested. Defendant McCain was tried without a jury and convicted; the conviction did not specify with whom McCain had conspired.
The undisputed evidence reveals that Ron Braswell, acting undercover for the state, established himself as a dealer in marijuana. Defendant and Tommy went to Braswell's office where the ensuing conversation was recorded by Braswell. At trial, this tape was admitted into evidence by stipulation of the parties. While Tommy remained in the waiting room, the defendant and Braswell discussed the purchase of a large quantity of marijuana by the defendant for resale. When asked how much he was interested in purchasing, the defendant said he would check and called Tommy into the room. At this point the taped conversation proceeded as follows:
McCain: Ron, this is Tommy.
Braswell: Hi, Tommy.
McCain: We're talking about 500 to start. Ron said how much money, for example, could these guys come up with, say earnest money?
Tommy: Okay. I suppose-you're talking about 500. They could probably come up with enough to cover 200 pounds of it. I've been along the figure of 400 because the guy that usually does the transporting of it uses his own vehicle about all the time. He holds 400 pounds in it.
McCain: So we want four instead of five, so we can pay for half of it up front.
Braswell: All right, may be able to put this together tonight.
McCain: Beautiful.
After Tommy left the room, the conversation continued. At one point the defendant told Braswell:
McCain: I told Tommy, I said, now what we'll do is do this pot deal with Ronny, then I want him to have first crack on the ki's, and his people have agreed to that. They don't know your name or anything. Of course, I told them, I said, I'll talk to Ron and get this pot deal going....
Defendant assigns as error the trial court's denial of his motion for judgment of acquittal at the close of the state's case. Specifically, defendant argues that the evidence was insufficient to prove the existence of an agreement or conspiracy between Tommy and the defendant. Therefore, the defendant reasons, the conviction must be overturned on the authority of King v. State, 104 So.2d 730 (Fla.1958), which holds that where one of two persons who conspire to do an illegal act is an officer acting in the discharge of his duties, the other person cannot be convicted on a charge of conspiracy. We have carefully examined the record in light of the contentions presented and find no error has been shown.
We first address defendant's argument that the state failed to prove the existence of an agreement between the defendant and Tommy. This court has previously considered the nature of proof necessary in a conspiracy case. As defendant points out, an agreement is the essential element of the crime of conspiracy. However, direct proof of an agreement is not necessary to establish a conspiracy; the jury is free to infer from all the circumstances surrounding and accompanying ...
To continue reading
Request your trial
-
Herrera v. State, 87-893
...from all the circumstances surrounding and accompanying the act that the common purpose to commit the crime existed." McCain v. State, 390 So.2d 779, 780 (Fla. 3d DCA 1980) (citation omitted), review denied, 399 So.2d 1144 (Fla.1981). Appellant's presence, his actions, and his statements co......
-
Martinez v. State
...cert. denied, 280 So.2d 684 (Fla.1973). It is a question of fact, as to whether there is a conspiracy, see, e.g., McCain v. State, 390 So.2d 779 (Fla. 3d DCA 1980), pet. for rev. denied, 399 So.2d 1144 (Fla.1981); Bass v. State, 172 So.2d 614 (Fla. 2d DCA 1965), and whether the act charged ......
-
LaPolla v. State
...(Fla. 4th DCA 1984). In State v. Cristodero, 426 So.2d 977, 980 (Fla. 4th DCA 1982), this court quoted the statement in McCain v. State, 390 So.2d 779 (Fla. 3d DCA 1980), to the effect that the jury is free to infer a common purpose to commit the crime from all the circumstances We do not t......
-
Isom v. State, 90-2217
...977, 978-80 (Fla. 4th DCA 1982), review denied sub nom. O'Donnell v. State, Rossi v. State, 436 So.2d 100 (Fla.1983); McCain v. State, 390 So.2d 779, 780 (Fla. 3d DCA 1980), review denied, 399 So.2d 1144 (Fla.1981). Because the charge required the jury to find a conspiracy between the defen......