Mishmash v. State
| Decision Date | 01 December 1982 |
| Docket Number | No. AH-9,AH-9 |
| Citation | 423 So.2d 446 |
| Parties | Ronald Charles MISHMASH, Alan Richard Cahen, and David Byron Waldorf, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
C. Rabon Martin, Tulsa, Okl. and Carlton P. Maddox of Dawson, Galant, Maddox, Sulik & Nichols, P.A., Jacksonville, for appellants.
Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
On March 9, 1981, at about 2:30 A.M., Lieutenant Lee and another Florida Marine Patrol officer passed three vehicles, an automobile and two pickup trucks with camper shells. No violation of law was observed, but Lt. Lee's suspicions were aroused because the trucks appeared to be heavily loaded, were traveling in close proximity, and the hour was late. The lieutenant radioed Sergeant Adams of the Marine Patrol and ordered the pickups stopped. The arresting officers testified that upon approaching the vehicles they detected the smell of marijuana and could see burlap-wrapped bales inside the trucks. A search revealed what later was determined to be marijuana wrapped in plastic surrounded by burlap. The drivers of the two trucks, Waldorf and Mishmash, and passenger Cahen were all convicted by jury of possession of more than one hundred pounds of marijuana.
Defense counsel moved for a directed verdict of acquittal as to appellant Cahen, asserting that the evidence was insufficient to present a jury issue on the question of Cahen's knowledge of the presence of the drug, one of the elements which the state was required to prove beyond a reasonable doubt. The trial court denied the motion. On this point we reverse. The circumstantial evidence against Cahen is insufficient to support a guilty verdict. The most damaging evidence against Cahen was Officer Maxwell's testimony that, upon approaching the truck in which Cahen was a passenger, he could see burlap-wrapped bales inside the truck and could smell marijuana. The State introduced no evidence that Cahen was present when the truck was loaded or that he drove or exercised any possessory right over the vehicle.
" '[W]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.' " Jaramillo v. State, 417 So.2d 257 (Fla.1982) (quoting McArthur v. State, 351 So.2d 972, 976 n. 12 (F...
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...manager in accounting for reimbursed expenses at a Florida League of Cities convention; theft conviction reversed); Mishmash v. State, 423 So.2d 446 (Fla. 1st DCA 1982), pet. for review denied, 434 So.2d 889 (Fla.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984) (stat......
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