Pama v. State, s. 88-00159

• Decision Date: 17 November 1989
• Docket Number: Nos. 88-00159,88-00377 and 88-00404,s. 88-00159
• Citation: 14 Fla. L. Weekly 2685,552 So.2d 309
• Parties: 14 Fla. L. Weekly 2685 Ignacio PAMA, Appellant, v. STATE of Florida, Appellee. Rory ODE, Appellant, v. STATE of Florida, Appellee. Daniel ROBERTS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 309

552 So.2d 309

14 Fla. L. Weekly 2685

Ignacio PAMA, Appellant, v. STATE of Florida, Appellee.

Rory ODE, Appellant, v. STATE of Florida, Appellee.

Daniel ROBERTS, Appellant, v. STATE of Florida, Appellee.

Nos. 88-00159, 88-00377 and 88-00404.

District Court of Appeal of Florida Second District.

Nov. 17, 1989.

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appellant Ignacio Pama.

David M. Shenkman, P.A., Coral Gables, for appellant Rory Ode.

Curt Obront, Miami, for appellant Daniel Roberts.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

PARKER, Judge.

Appellants, Ignacio Pama, Rory Ode, and Daniel Roberts, whose cases were consolidated by this court, appeal their convictions for trafficking in cannabis in an amount greater than 10,000 pounds. ¹ We reverse and remand with directions to impose sentences for a lesser included offense.

Although the appellants raise two issues on appeal, we address only the one having merit which is whether the state proved that the appellants were trafficking in cannabis in an amount of at least 10,000 pounds. We find that the state failed in its proof.

Customs agents stopped and boarded a fishing boat near Everglades City. The appellants were on board the boat which was fully equipped to catch and store crabs. One of the customs officers smelled the odor of marijuana upon boarding. The officers searched the boat and found bales in the bilge area, cabin, and ice hatches. In fact, when the officers opened the cabin door to go down the steps, six bales fell out of the area and hit the officers. After the appellants were taken into custody, a final tally reflected 234 bales wrapped in burlap and bound with duct tape. Some of the bales were so damp from bilge water that they seeped water in a truck used to transfer the bales.

At trial, the testimony revealed that the deputies randomly selected thirteen bales, cut through the wrappings, and took a fist-sized sample of the contents from each of those thirteen bales. A deputy who was qualified as an expert in the identification of marijuana testified that the samples were marijuana. The officers weighed only three bales, and those bales weighed 41.8 pounds, 45.4 pounds, and 38.4 pounds inclusive of their wrappings. Each of these three bales were wrapped in cardboard, four or five layers of plastic, and burlap. One deputy, who had seen bulk loads of marijuana over 1,000 times, testified that he believed the average bale weighed approximately fifty pounds. He then multiplied 234 bales by fifty pounds to establish his belief that the total weight of all the bales was 11,100 pounds. Another deputy sheriff testified that he had participated in approximately twenty-five boat seizures of marijuana and estimated that the load weighed 11,000 pounds without wrappings and excess water. Law enforcement made no attempt to determine the weight of the wrappings on the bales or the weight of excess water in the bales. There was also testimony in the state's case from an officer who was with a defense expert when he examined seven different bales, and that officer testified that those seven bales also contained marijuana.

At the close of the state's case, the three appellants each moved for judgment of acquittal, one ground of which was that the state had failed to prove that the weight of the marijuana was 10,000 pounds or greater. We agree with appellants that the state failed to establish that the prohibited substance weighed at least 10,000 pounds. ²

Initially, we must address the adequacy of the state's proof regarding the identification of the substance, because the resolution of that issue affects the proof concerning the weight of the marijuana. It is not necessary for the state to prove the identification of marijuana by chemical or scientific means. Dean v. State, 406 So.2d 1162 (Fla. 2d DCA 1981), review denied, 413 So.2d 877 (Fla.1982); A.A. v. State, 461 So.2d 165 (Fla. 3d DCA 1984); State v. Raulerson, 403 So.2d 1102 (Fla. 5th DCA 1981). In this case, an experienced law enforcement officer examined twenty bales and identified the substance in those bales as marijuana. Accordingly, the state adequately proved that at least twenty bales contained marijuana.

We now must determine whether the state in its case-in-chief sufficiently proved that the remaining 214 bales contained marijuana. The state may prove the identity of a controlled substance by circumstantial evidence such as the substance's appearance, odor, and packaging, by the circumstances under which the substance was seized, A.A.; the manner by which the substance was being transported, a person's on-the-scene remarks identifying the substance, Raulerson; United States v. Harrell, 737 F.2d 971 (11th Cir.1984), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 781 (1985); and circumstances surrounding the sale or use of the substance. Harrell.

In this case, there was evidence that law enforcement officers smelled the distinctive odor of marijuana; the substance was packaged in a way that marijuana is commonly packaged;...