Mickenberg v. State, 92-02524
| Citation | 640 So.2d 1210 |
| Decision Date | 03 August 1994 |
| Docket Number | No. 92-02524,92-02524 |
| Parties | 19 Fla. L. Weekly D1686 Steven MICKENBERG, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
James Marion Moorman, Public Defender, and Cynthia J. Dodge, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Dell H. Edwards, Asst. Atty. Gen., Tampa, for appellee.
Steven Mickenberg attacks his conviction for conspiracy to traffic in 400 grams or more of cocaine. Because we hold that the evidence was insufficient to warrant a conviction, we reverse and remand with directions that the circuit court discharge him.
Mickenberg and three other codefendants were charged with conspiring with each other and seven other individuals to traffic in 400 grams or more of cocaine in violation of section 893.135(1), Florida Statutes (1989). Five of the coconspirators testified at trial for the state. The following is the evidence against Mickenberg presented in the light most favorable to the state.
Thomas Martin testified that during 1986-1987, he made his living selling cocaine. He met Mickenberg through Alejandro Ruiz, his supplier and Mickenberg's roommate for eighteen months during the time in question. Mickenberg mainly delivered the cocaine to Martin for Ruiz, and Martin paid an additional $1,000.00 as a delivery charge. He contacted Ruiz to set up the deals and never discussed price or quantity with Mickenberg. Martin did not believe he had ever talked to Mickenberg about arranging for a delivery.
Michael Perry testified that he and Michael Spinger, another codefendant, made several trips to Miami to pick up cocaine from Ruiz. He became a "mule" for Martin and Spinger. On one occasion, he picked up a bag from Mickenberg, but he never actually saw any drugs. He did not recall on which trip he saw the drugs. In the summer of 1987, he met Mickenberg in Lakeland where he picked up two kilos of cocaine. He never talked with Mickenberg about setting up the Lakeland trip, and he knew that Mickenberg was not involved in setting up the exchanges.
Three other coconspirators testified, but two did not know Mickenberg. The third testified to a cocaine transaction when he and another codefendant, Scott Soares, went to Ruiz's apartment. Soares went into a bedroom with Mickenberg. When they came out, Mickenberg put a large amount of cash in a wall unit. Mickenberg admitted taking the cash for Ruiz, but denied giving anything in exchange.
The trial court denied the appellant's motion for judgment of acquittal at the close of the state's case and at the close of all of the evidence. The appellant argued that the state had failed to show an express or implied agreement between two or more persons to commit a criminal offense and that a conspiracy involves more than aiding and abetting.
The crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Ramirez v. State, 371...
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