Ramirez v. State, 4D10–4927.

• Citation: 125 So.3d 171
• Decision Date: 16 January 2013
• Docket Number: No. 4D10–4927.,4D10–4927.
• Parties: Andrew RAMIREZ, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

125 So.3d 171

Andrew RAMIREZ, Appellant,
v.
STATE of Florida, Appellee.

No. 4D10–4927.

District Court of Appeal of Florida,
Fourth District.

Jan. 16, 2013.

[125 So.3d 173]

Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Sue–Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

After a jury trial, Andrew Ramirez was convicted of trafficking in hydrocodone and possession of cocaine with intent to sell. We reverse the trafficking conviction because the failure to charge the jury on a “prescription defense” constituted fundamental error in a case where a question from the jury should have highlighted the absence of the instruction for the trial court and defense attorney.

Armed with a search warrant, fifteen SWAT team members forcibly entered and secured a home owned by Ramirez's mother where they found Ramirez and his girlfriend asleep in a bedroom. On a nightstand next to the bed where the couple had been sleeping, a detective found an ID card belonging to Ramirez and a pill bottle, prescribed to Ramirez's mother, containing fourteen hydrocodone tablets. The prescription had been filled six months prior to the search and the mother had a valid prescription for fifteen pills.

In a second room, likely used for storage, officers found a bag of cocaine on a television stand, another small bag of cocaine in a cabinet, a digital scale with cocaine residue on it, and baking soda, commonly used to mix with cocaine. Officers also found mail in the second room addressed to Ramirez; no belongings attributable to any other person were found in the room. According to two detectives, Ramirez said that he took the hydrocodone pills from his mother for his own use, but he was not selling them.

In the defense case, Ramirez denied making this statement. Rather, he testified that the detectives relentlessly badgered him about whether or not he was taking the pills, so he told them to “put down whatever you want” in the police report.

Addressing the cocaine and scale found within the home, Ramirez testified that the cocaine was in his brother's room and he was otherwise unaware of its presence. The mail addressed to him that was found inside the room was old and just happened to be there.

The mother testified that three of her sons lived in the home that was searched. Each brother had his own room, and each frequently came in and out of the home to record rap music. As for the hydrocodone pills, the mother stated that she received a valid prescription after injuring her back during a slip and fall incident. As a result, she always carried her pill bottles with her since her back frequently flared up. Because she resided elsewhere, she was uncertain how her pill bottle got to the home used by her sons; she assumed she left it there during one of the many times she stopped by to clean for her sons.

[125 So.3d 174]

Ramirez testified that he and his girlfriend had forgotten to pay the electric bill at his girlfriend's house, so the electricity had been shut off. Therefore, the night before Ramirez's arrest, they were forced to relocate to his mother's house. When they arrived at the house at about 1 to 2 a.m., Ramirez saw that his mother had left the pills in an open area of the house. Since his two brothers also lived at the home and frequently invited guests over to record rap music, Ramirez took the pills into his own room to safeguard them until his mother returned.

During closing argument, the prosecutor argued that her obligation was merely to prove the four elements of trafficking in hydrocodone contained in the standard jury instruction quoted several paragraphs below:

To prove the crime of trafficking in illegal drugs, the State must prove the following four elements beyond a reasonable doubt, four elements, nothing more, nothing less.

(Emphasis added). The prosecutor preemptively attacked the anticipated defense claim that the pill bottle belonged to his mother, arguing:

Now, did he knowingly possess a certain substance?

Well, he testified that he had the bottle in his hand, he knew it was there. Now, whether you believe that the mom left it there or he took it from the mom, that's obviously a question for you to determine.

Did he knowingly possess it?

It was in his nightstand next to his ID, right next to where he was sleeping.

It is difficult to determine the precise nature of defense counsel's closing argument other than exploration of the theme, “This isn't fair.” The essence of the argument appears to have been that Ramirez was entitled to temporarily possess the pills, and thus should be acquitted of the trafficking charge, since his mother had a viable prescription and he was not using them for an illegal purpose. Defense counsel conceded that the pills were located “next to [Ramirez's] bed” but argued instead that it would be illogical for Ramirez not to keep the pills in the second room with the cocaine if he were selling them. Moreover, the fact that there were still fourteen of the fifteen pills still in the prescription bottle showed, in defense counsel's opinion, that Ramirez was not taking or selling the drugs.

The trial court instructed the jury on the four elements of the offense of trafficking in hydrocodone as follows:

To prove the crime of Trafficking in Illegal Drugs, the State must prove the following four elements beyond a reasonable doubt:

1. [Ramirez] knowingly possessed a certain substance.

2. The substance was hydrocodone or a mixture containing hydrocodone.

3. The quantity of the substance involved was 4 grams or more, but less than 14 grams.

4. [Ramirez] knew that the substance was hydrocodone or a mixture containing hydrocodone.

The court did not instruct the jury on any affirmative defense, and defense counsel did not ask for an instruction that would have placed the general “fairness” theme of his closing in the context of a recognized defense.

Even if Ramirez's trial counsel was ineffective, the jury perceived that something was unfair in the law as instructed. In a lengthy, detailed written question, the jury asked, if it found that the State had proven the four elements of trafficking beyond a reasonable doubt, whether it

[125 So.3d 175]

therefore must find the Ä guilty? Or in the alternative, can this Honorable Court please advise if this jury, pursuant to the aforementioned analysis, has properly considered all pertinent issues surrounding this individual charge?

In response, the trial judge told the jurors that they “must rely on the evidence presented at the trial, as well as the instructions on the law, and base [their] decision on that.” Defense counsel did not object or request any additional instruction on the law.

Fundamental error occurred in this case because the court failed to instruct on a prescription defense—the defense that obviously applied to the trafficking charge.¹ A trial court's omission of a jury instruction is “subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error...