Nicholas v. State Of Fla., No. 2D07-5400

• Court: Court of Appeal of Florida (US)
• Writing for the Court: VILLANTI.
• Parties: JAMES NICHOLAS, Appellant, v. STATE OF FLORIDA, Appellee.
• Docket Number: No. 2D07-5400
• Decision Date: 28 July 2010

JAMES NICHOLAS, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 2D07-5400

District Court of Appeal of Florida

Opinion filed July 28, 2010.

Bryant R. Camareno, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Hillsborough County; Ronald N. Ficarrotta, Judge.

VILLANTI, Judge.

James Nicholas appeals his convictions for trafficking in cocaine (200 grams to 400 grams) and conspiracy to traffic in cocaine (200 grams to 400 grams), alleging numerous errors. We affirm on all grounds except one, which requires reversal of the trafficking conviction because the State failed to produce sufficient evidence of

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constructive possession of cocaine. We also write to explain why we reject Nicholas' argument regarding the removal of a juror during trial.

The charges against Nicholas stemmed from an undercover investigation of suspected large-scale drug trafficking. Law enforcement began investigating after receiving information suggesting that more than a dozen individuals were involved in a single operation manufacturing and selling drugs. During the course of the investigation, law enforcement received information from a confidential informant that he had seen Nicholas cooking cocaine and giving that cocaine to Sidney Deloch, Tamiko James, Chuckie James, and Lonnie Tingle in exchange for $7000. Nicholas was subsequently charged with trafficking in cocaine based on his alleged possession of large quantities of cocaine.¹ See § 893.135(1)(b), Fla. Stat. (2005) (defining the offense of trafficking to include "actual or constructive possession" of 28 grams or more of cocaine).

At trial, the State presented evidence that drug trafficking activities were taking place in several apartments. One of the apartments was known as "Cerro Circle," and the State introduced evidence that this apartment was controlled by Nicholas and Chuckie James. Another apartment known as "Morro Manor" was controlled by Sidney Deloch and Darian James. Nicholas' name was not on the Morro Manor lease. Law enforcement obtained search warrants for the apartments and discovered large quantities of cocaine in the Morro Manor apartment. Nicholas was not present at the Morro Manor apartment when the cocaine was found nor were his

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fingerprints found on any of the Morro Manor cocaine bags or on any other evidence found by law enforcement during its search.

At the Cerro Circle apartment police found scales, baking soda, zip lock bags, a razor blade, and cooking pots, all of which are items commonly used to manufacture and sell crack cocaine. However, law enforcement did not find any cocaine in the Cerro Circle apartment. No undercover agent had a "hands to hands" drug transaction with Nicholas, and no cocaine was found on Nicholas' person. Although law enforcement recorded numerous telephone conversations during the investigation, none of those conversations directly implicated Nicholas in the actions supporting the trafficking charge against him.

The State also presented the testimony of Deloch, who was Nicholas' cousin. Deloch testified that he knew Nicholas was a drug distributor because the two talked about prices; he told Nicholas that he had paid $24,000 for a kilo of cocaine and Nicholas told Deloch that he had paid $23,000 for the same amount. Deloch also testified that he received nine ounces of cocaine from Nicholas during the period covered by the investigation. Deloch testified that he negotiated with Nicholas over the telephone for that cocaine, he later received the negotiated amount of cocaine from Chuckie James at the Cerro Circle apartment, and Chuckie James told him that Nicholas had left the cocaine for him. However, that cocaine was not introduced at trial.

Tamiko James, Nicholas' brother, testified that he Tamiko was selling crack cocaine from August to November 2005. During that time frame, he obtained cocaine from Nicholas ten to twenty times. The smallest amount Tamiko James obtained from Nicholas during that period was fourteen grams and the largest amount

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was three or four ounces. He would sell the cocaine on consignment and pay Nicholas when it sold. He testified that Nicholas had a key to both the Morro Manor and the Cerro Circle apartments and that Nicholas had opened the doors to both apartments for him. He also testified that during the period of law enforcement's investigation he saw Nicholas numerous times cooking crack cocaine at the Cerro Circle apartment. The most cocaine he ever saw Nicholas cooking was "a hundred and something" grams. He also testified that Nicholas did "all the cooking" of cocaine for the drug operation.

Police detectives testified at trial that Nicholas admitted post-Miranda² that he was cooking and selling cocaine. He disclosed the identity of his cocaine source and indicated that he was getting between one and three kilos of cocaine at least twice a month. He admitted that a substantial amount of money found by law enforcement in two safes belonged to him and was derived from the sale of drugs.

At the close of the State's case, Nicholas moved for judgment of acquittal, contending that the State had not established that he ever possessed an amount of cocaine sufficient to support the trafficking charge. The State argued that while the evidence was circumstantial, it was nevertheless sufficient to tie Nicholas to the Morro Manor cocaine. The trial court denied Nicholas' motion, and the jury ultimately found Nicholas guilty of this offense. Nicholas now appeals the denial of his motion for judgment of acquittal on this charge.

A motion for judgment of acquittal challenges the legal sufficiency of the evidence. State v. Odom, 862 So. 2d 56, 59 (Fla. 2d DCA 2003). The trial court should grant a judgment of acquittal if the State fails to present legally sufficient evidence to

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establish each element of the crime charged. ki The appellate court reviews de novo a trial court's denial of a motion for judgment of acquittal, considering the evidence and all reasonable inferences from the evidence in the light most favorable to the State. Behanna v. State, 985 So. 2d 550, 555 (Fla. 2d DCA 2007), review denied, 988 So. 2d 622 (Fla. 2008).

Because Nicholas was not found in actual possession of cocaine, the State's trafficking charge against him was premised upon his constructive possession of the cocaine found in the Morro Manor apartment. To prove constructive possession, the State must show beyond a reasonable doubt that the defendant (1) knew of the presence of the contraband and (2) had the ability to exercise dominion and control over it. Santiago v. State, 991 So. 2d 439, 441 (Fla. 2d DCA 2008); C.M. v. State, 818 So. 2d 554, 555 (Fla. 2d DCA 2002). Furthermore, where contraband is found in a location accessible to more than one person, the defendant's knowledge of the presence of the contraband on the premises and his ability to exercise dominion and control over it will not be inferred and must be established by independent proof. Wagner v. State, 950 So. 2d 511, 513 (Fla. 2d DCA 2007). Such independent proof "may consist of evidence that the defendant had actual knowledge of the presence of the contraband or evidence of incriminating statements or circumstances, other than simple proximity to the contraband, from which the jury could infer the defendant's knowledge." ld (citing Woods v. State, 765 So. 2d 255, 257 (Fla. 2d DCA 2000)); see also Jackson v. State, 995 So. 2d 535, 540-41 (Fla. 2d DCA 2008) (holding that evidence of knowledge, dominion, and control was sufficient to deny motion for judgment of acquittal where

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drugs found during a search were located in or about other personal possessions owned or controlled by the defendant).

In this case, the State presented no independent proof that Nicholas knew of the presence of the cocaine found in the Morro Manor apartment. Nicholas was not present at the apartment when the cocaine was found, the Morro Manor apartment was not leased to him, he made no incriminating statements linking him to the cocaine found at the Morro Manor apartment, and his fingerprints were not on that cocaine or on any other evidence found there. Further, Nicholas' post-Miranda statements that he cooked and sold an unknown quantity of cocaine at an unknown time and that he had sold large quantities of drugs in the past were not sufficient to establish his actual or constructive possession of the Morro Manor cocaine. As a result, none of the evidence presented by the State established that Nicholas exercised dominion and control over any of the cocaine found in the Morro Manor apartment. Without dominion and control, a conviction for trafficking cannot be sustained. See, e.g., Gibson v. State, 940 So. 2d 1263, 1265 (Fla. 1st DCA 2006) (reversing conviction for trafficking in cocaine where there was no evidence that the defendant had dominion or control over the cocaine).³ Therefore, based on these facts, we must reverse Nicholas' conviction and sentence for trafficking in cocaine, and we remand for Nicholas to be resentenced on the conspiracy conviction, using a corrected scoresheet.

While this resolution disposes of Nicholas' claims concerning his trafficking conviction, Nicholas also makes several arguments as to why his conspiracy conviction

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should be reversed. While we reject all of these arguments, we write to explain...