R.A.W. v. State

Decision Date24 July 2012
Docket NumberNo. 1D11–5376.,1D11–5376.
Citation92 So.3d 312
PartiesR.A.W., a child, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

OPINION TEXT STARTS HERE

An appeal from the Circuit Court for Santa Rosa County. Gary L. Bergosh, Judge.

Nancy A. Daniels, Public Defender, and Diana L. Johnson, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Angela R. Hensel, Assistant Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

MAKAR, J., concurring dubitante.

On Memorial Day in 2011, R.A.W., a fifteen-year old female, was with her sister and two males in the Blackwater State Forest, sitting close to one another on the ledge of a sandbar. Her sister and one of the males had beers in their possession; the other male did not. An enforcement officer who approached the group testified that he saw a beer can that appeared to be on the ground between R.A.W.'s legs and that when she stood up it tipped over and its dark-colored contents foamed on the sand like beer. Beyond these visual observations, the officer took no steps to confirm the liquid was actually beer.

R.A.W. was charged with possession of alcohol by a minor. She argues, in part, that her motion for judgment of acquittal should have been granted because of the lack of adequate proof that the liquid was actually an illegal substance, a question that is addressed under a de novo standard. P.N. v. State, 976 So.2d 90, 91 (Fla. 3d DCA 2008) (judgment of acquittal is proper if the State fails to present sufficient evidence to establish a prima facie case of the crime charged).

The State, of course, bore the burden of presenting sufficient evidence to prove beyond a reasonable doubt that the brown foaming liquid was an illegal substance. But did it? This Court has previously said that, although the burden of proof is “relatively low” in alcohol possession cases, the State must present adequate evidence of the contents of a container believed to contain alcohol. See S.C.S. v. State, 831 So.2d 264, 264 (Fla. 1st DCA 2002) (reversing conviction where State presented no evidence of contents of bottle possessed by minor). Likewise, the Third District has reversed a conviction where the State failed to present evidence that a bottle's contents were illegal alcohol. P.N., 976 So.2d at 92 (officer saw juvenile holding beer bottle, which when eventually recovered was “full of sand and water”).

Here, the only evidence that the content of the can was an illegal substance was the officer's observation that the liquid that spilled out was brown and that, in his personal opinion, it foamed like beer when it spilled on the sand. He did not smell the can or its contents; he did not determine whether the liquid was cold or warm, which might affect foaming. He did not see her hold or drink from the can; she did not act in an unusual way when the can tipped over. In fact, he did not take possession of the can, leaving it with the group sitting on the sandbar for them to discard. R.A.W. was not subject to any observation or testing for alcohol consumption, and showed no signs of having imbibed; indeed, she denied having alcohol. In short, no steps were taken—other than observing a dark spilled liquid foaming—to determine that the can actually contained beer or other alcoholic beverage.

Because the bottle's content was not directly verified by smell, we are left to infer that the officer's “beer foam” testimony is legally sufficient to meet the State's burden of proving the illegal nature of the liquid. This Court in S.C.S. and the Third District in A.A v. State, 461 So.2d 165, 167 (Fla. 3d DCA 1984), noted that an experienced officer's testimony about the “appearance and smell of illegal contraband” is enough to prove its illegal nature. S.C.S., 831 So.2d at 264 (citing A.A., 461 So.2d at 166) (emphasis added). But no Florida court has held that mere observation of a liquid or its foam without also smelling it is sufficient to establish it is alcoholic, even by an experienced officer.

The officer here was not held out as an expert, nor did he have any specialized experience or training on beer and its foaming qualities vis-à-vis other brown-colored carbonated beverages. Academic literature exists on the creation of the perfect “head” that is produced when beer is poured into a glass and foams; 1 none appears to exist on the visual differences between spilt beer foam and spilt soda foam, particularly on sandy warm surfaces. As such, the “beer foam” opinion of the officer leaves open some doubt about the nature of the liquid. Kids do goofy things like putting soda in a beer bottle to act cool; the trial judge recognized this possibility.

This situation is unlike those where an officer either has specialized expertise or actually observes and smells an illegal substance. For example, in A.A., the “officer's opinion that the substance seized in the present case was marijuana was based upon his sensory perceptions of sight and smell, as well as the facts that the substance was in a clear plastic baggie and the juvenile possessed ‘rolling papers.’ 461 So.2d at 166. The officer—who was qualified to testify as an expert in marijuana identification—had nine years of experience, four of which were in a special narcotics unit where he took coursework on the topic of identifying marijuana; he had seen and smelled “tons” of marijuana; his “identifications of substances as marijuana had always been corroborated by lab tests.” Id. The juvenile in A.A. unsuccessfully argued this expert testimony was insufficient to form an opinion and “that something more in the line of scientific or chemical proof is required.” Id. The Third District disagreed,...

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1 cases
  • Austin v. State
    • United States
    • Florida District Court of Appeals
    • 23 Julio 2019
    ...the identity of marijuana based on smell and appearance, as marijuana is easily identified without chemical analysis. R.A.W. v. State, 92 So. 3d 312, 313 (Fla 1st DCA 2012); see also R.C. v. State, 192 So. 3d 606, 611 (Fla. 2d DCA 2016) (holding that the same rule applies under Daubert anal......

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