Robinson v. State, 1D05-3046.

• Decision Date: 24 August 2006
• Docket Number: No. 1D05-3046.,1D05-3046.
• Parties: Johnnie C. ROBINSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

936 So.2d 1164

Johnnie C. ROBINSON, Appellant, v. STATE of Florida, Appellee.

No. 1D05-3046.

District Court of Appeal of Florida, First District.

August 24, 2006.

Nancy A. Daniels, Public Defender; and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.

Charlie Crist, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.

BROWNING, J.

Johnnie C. Robinson (Appellant) was charged by information with the manufacture of cocaine (Count One), possession of cocaine with intent to sell or deliver (Count Two), maintaining a place where controlled substances are used (Count Three), and possession of drug paraphernalia (Count Four). At the close of the State's case, defense counsel moved for a judgment of acquittal (JOA) on all counts. The trial court granted a JOA for Counts One and Three, dropped the "intent to sell" element of Count Two, and denied the motion on Count Four. Appellant contends that the trial court erred in sending to the jury the charges of possession of cocaine and possession of drug paraphernalia. Because the State made a prima facie case on the counts that were sent to the jury, the trial court ruled correctly on the motion for JOA. Accordingly, we affirm Appellant's conviction and sentence.

We review de novo the trial court's denial of a motion for JOA, to determine solely whether the evidence is legally sufficient. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Jones v. State, 790 So.2d 1194, 1196 (Fla. 1st DCA 2001) (en banc). Given the lack of evidence that Appellant actually possessed the cocaine and the drug paraphernalia, the State had to prove constructive possession to sustain the convictions. See Lester v. State, 891 So.2d 1219, 1220 (Fla. 2d DCA 2005). "Proof based entirely on circumstantial evidence can be sufficient to sustain a conviction in Florida." Orme v. State, 677 So.2d 258, 261 (Fla.1996). When a case is based solely on circumstantial evidence, a special standard of review of the sufficiency of the evidence applies. The evidence must be inconsistent with any reasonable hypothesis of innocence for the conviction to be sustained. See State v. Law, 559 So.2d 187, 188 (Fla.1989); P.M.M. v. State, 884 So.2d 418, 419-20 (Fla. 2d DCA 2004). However, the State is not required to rebut conclusively every possible variation of events that could be inferred from the evidence, but only to introduce competent evidence that is inconsistent with the defendant's theory of events. See Law, 559 So.2d at 189; State v. Allen, 335 So.2d 823, 826 (Fla.1976). Once the State introduces such evidence, it is the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. See Law, 559 So.2d at 189. The legal test for determining whether a JOA should be granted is "whether after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment." Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981). The Fourth District Court has stated the general rule governing constructive possession:

Proof of guilt based on a constructive possession theory consists of three basic elements:

(1) The accused must have dominion and control over the contraband.

(2) The accused must have knowledge that the contraband is within his presence, and;

(3) The accused must have knowledge of the illicit nature of the contraband.

Wale v. State, 397 So.2d 738, 739 (Fla. 4th DCA 1981); see Jean v. State, 638 So.2d 995, 996 (Fla. 4th DCA 1994); Julian v. State, 545 So.2d 347, 348 (Fla. 1st DCA 1989). "[E]ach of these elements may be proved by circumstantial evidence." Wale, 397 So.2d at 739. The following rule governs cases in which the location of the drugs and paraphernalia is not in the defendant's exclusive possession, but is jointly possessed:

If the place in which the contraband is found is not in the exclusive possession of the accused, but only in his joint possession, his knowledge of the presence of the contraband on the premises and his ability to maintain control over it will not be inferred, but must be established by extra proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband in the place where it is found, or circumstantial evidence from which a jury might properly infer that the accused had knowledge of the presence of the contraband.

Id. at 740; see State v. Giralt, 871 So.2d 983 (Fla. 3d DCA 2004); Julian, 545 So.2d at 348.

Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the State, in accordance with Lynch v. State, 293 So.2d 44, 45 (Fla. 1974), we conclude that the State presented evidence to support every element of possession of cocaine and possession of drug paraphernalia. Accordingly, the trial court correctly denied the motion for JOA as to the counts in question.

According to Investigator Sam Gereg, of the Vice and Narcotics Unit of the Tallahassee Police Department, a search warrant was served at a very small house at 1809 West Pensacola Street on July 2, 2004. No one was at home when the warrant was served. Richard Singletary testified that he owned this rental property; he estimated the size of the home to be 800-900 square feet. The house has two bedrooms (designated northwest and southwest by the authorities for purposes of location and description), a kitchen, and a living room. At the time of the search, Charles Reddick was named on the lease of the home and had been a tenant for about one and one-half years. Appellant's name was not on the lease, and the owner had no rental agreement with him. The owner testified that Appellant was the only roommate about whom he knew, but the owner could not say for certain that Appellant was a roommate. However, the owner frequently saw Appellant coming and going at the house, as many times as two or three times a week over a six- to eight-week period when the owner was working on his next-door rental property. It was not unusual for the owner to allow roommates who were not named on the rental agreement; in fact, he allowed it "all the time." The owner testified that Appellant sometimes had brought the rent payment to him on Mr. Reddick's behalf and had received a receipt made out to Mr. Reddick. The owner testified that after he was asked to change the carpeting in the house, he went inside the home and Appellant helped him with this project. The owner had never seen drugs or drug paraphernalia in the home.

For purposes of resolving the issue on appeal, we focus on the northwest bedroom in the home. Investigator Gereg testified the northwest bedroom had a small dresser, wall shelving, a very small futon-type single bed, and a closet. This bedroom was fully decorated, appeared fully furnished and occupied, and had Coca-Cola souvenirs and other mementos on the shelves. Everything observed by the investigator during the search indicated that only one person, Appellant, resided in that bedroom. A shoebox was filled with photographs that consistently included a gentleman whom the witness identified as Appellant. Various items of paperwork were found on the dresser just inside the bedroom door and on the shelves and by the closet. In that bedroom, every piece of paper that had a name on it had Appellant's first name or his full name, and no other paperwork was found with anyone else's name on it. The paperwork included an envelope addressed to Appellant, and a second one (postmarked late April 2004) addressed to "Shamaka and Johnny," although both envelopes listed a different address from that of the home searched. Investigator Gereg testified from personal knowledge that the envelope listing Appellant's name alone had an address that had been Appellant's mother's address for seven years. The investigator found Western Union money transfer forms listing Appellant as the "Sender." A deposit form listed "Johnny" as the first name, and a handwritten note with a date of May 2, 2004, was sent to "Johnny." A civil writ of bodily attachment from a court addressed to Appellant (at a different address from the searched home) indicated his child-support arrearage. Three U.S. Postal Service receipts found in the bedroom were dated June 8, 2004, i.e., less than a month before the search warrant was served.

Investigator Gereg testified that the small, waist-high dresser was in the northwest bedroom just inside the door. The top drawer had underwear in it; another drawer had T-shirts. The drawers did not contain dividers to suggest that two people were sharing the space. The small closet had a full wardrobe, and all the shoes and clothes appeared to be of one consistent size. The witness opined that the room appeared to be fully occupied.

Investigator Gereg testified that a plastic bag found in the top drawer of the dresser in the northwest bedroom contained 8.72 grams of crack cocaine. Another 6.54 grams of powdered cocaine was found in the same dresser. The photographic evidence indicates one of these plastic baggies was found wrapped in what appears to be a pair of men's boxer shorts. A 302-gram bag of white, powdery "Come Back Incense" was found in a black shopping bag on a shelf in that bedroom. Numerous small plastic bags were found in the third drawer and on top of the dresser. Having been qualified as an expert in the field of the sale of narcotics and possession of drug paraphernalia, Investigator Gereg opined that white, powdery, and odorless incense of the kind found in the northwest bedroom is frequently sold for use as a cutting agent for cocaine. That is, cocaine is an expensive substance, this type of incense is much cheaper, and the substances are mixed to allow the resulting lower-quality cocaine, of an enhanced volume, to be sold for a much greater...