Pennington v. State
| Decision Date | 14 October 1987 |
| Docket Number | No. 4-86-1330,4-86-1330 |
| Citation | 526 So.2d 87,12 Fla. L. Weekly 2418 |
| Parties | 12 Fla. L. Weekly 2418 Ralph PENNINGTON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael J. Wrubel of the Law Offices of Michael J. Wrubel, P.A., Fort Lauderdale, for appellant.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Michael W. Baker, Asst. Atty. Gen., West Palm Beach, for appellee.
A jury convicted appellant of trafficking in cocaine and conspiracy to traffic in cocaine. At the conclusion of the state's case, appellant moved for judgment of acquittal on both counts. Appellant contends that the trial court erred when it denied his motion. Appellant also contends that the trial court erred when it denied his motion for a severance. We agree with appellant's first point on appeal and reverse. Therefore we do not need to address appellant's second point on appeal.
The state charged appellant, Gary Steffey, Peter Voto, and Jewel May Daophin with trafficking in cocaine and conspiracy to traffic in cocaine in excess of four hundred grams. The four defendants were tried in a joint trial. It became apparent, during counsel for Steffey's opening statement, that Steffey intended to rely on an entrapment defense. The trial court denied appellant's motion for a severance.
The state established the following facts during its case. A detective with the Hollywood Police Department made contact with a confidential informant who indicated he knew a person who could sell a large quantity of cocaine. The confidential informant introduced the detective to Steffey for the purpose of setting up a cocaine purchase. The detective discussed the purchase with the confidential informant and Steffey on several occasions. Appellant did not participate in any of those discussions. The detective's only contact with appellant occurred at the supermarket parking lot where the drug transaction took place.
The detective met Steffey in the parking lot. Defendant Voto was standing near a Dodge automobile. The detective could not identify another individual who was seated in the driver's seat. After a discussion between Steffey and Voto the automobile left the parking lot with Voto and the other individual. The automobile returned a short time later and Steffey again walked over to it. It left again. When it returned the second time, appellant got out of the driver's seat. Appellant told the detective, "It's in the white car (a Buick) over there." Appellant left and returned to the Dodge while the detective and Steffey approached the Buick. Defendant Daophin was sitting inside the Buick with a pink pillowcase containing a large quantity of cocaine. The state presented no other evidence concerning appellant during its case. However, after the court denied appellant's motion for judgment of acquittal and during Steffey's case, Steffey testified on cross-examination that he had conversations with appellant concerning the cocaine deal. Appellant testified that Steffey had asked him to assist in a jewelry transaction and that he was at the scene for security purposes.
Viewed most favorably to the state, the evidence presented during its case shows only that appellant was present at the scene of the drug transaction and that appellant said, "It's in the white car over there." The state did not present sufficient evidence to prove that appellant knowingly participated in the delivery of a controlled substance. The state also failed to present any evidence from which the jury could reasonably have concluded that appellant participated in a conspiracy to deliver the cocaine. In Way v. State, 475 So.2d 239 (Fla.1985), the supreme court stated:
We agree that knowledge of the nature of the substance possessed is an essential element to the crime of trafficking in cocaine under section 893.135(1)(b)1. The statute requires "knowing" possession of cocaine and, therefore, lack of knowledge that the substance is cocaine would be a defense.
This brings us to the question of whether the state may rely on testimony presented during the defendants' cases to sustain the conviction. In Wagner v. State, 421 So.2d 826 (Fla. 1st DCA 1982), the court stated:
Initially, we note that it is clear under the appropriate rule that Wagner did not waive his motion for judgment of acquittal by the introduction of evidence in his defense. Fla.R.Crim.P. 3.380. The State may not rely upon evidence presented during Wagner's subsequent defense to supply essential missing links in the State's prima facie case to support the denial of the motion for judgment of acquittal. Therefore, we will not consider the evidence presented in the appellant's defense.
We cited Wagner with approval in Richardson v. State, 488 So.2d 661 (Fla. 4th DCA 1986), and held:
We conclude from our review of the record that the state did not present any independent proof that appellant had either actual or constructive possession of the marijuana for which he was charged. In the absence of such evidence, the trial court erred by refusing to grant the motion for judgment of acquittal which appellant made at the close of the state's case.
Also see Brooks v. State, 501 So.2d 176 (Fla. 4th DCA 1987); Greene v. State, 375 So.2d 55 (Fla. 4th DCA 1979), cert. denied, State v. Greene, 388 So.2d 1118 (Fla.1980); and Ponsell v. State, 393 So.2d 635 (Fla. 4th DCA 1981).
The district court in Adams v. State, 367 So.2d 635 (Fla. 2d DCA), cert. denied, 376 So.2d 68 (Fla.1979), concluded:
After appellant moved for judgment of acquittal at the close of the state's case and received an adverse ruling on that motion, he took the stand on his own behalf. On cross-examination he was asked whether he held a permit to possess an explosive and answered that he did not. It has been held in this state that where the prosecution fails to introduce evidence of an essential element of a crime, so that there is error in failing to grant a motion for directed verdict or judgment of acquittal, that error is not grounds for reversal where the defendant takes the stand and in his testimony supplies the missing element. Roberts v. State, 154 Fla. 36, 16 So.2d 435 (1944); ...
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