Rutskin v. State, P--185
| Decision Date | 28 March 1972 |
| Docket Number | No. P--185,P--185 |
| Citation | 260 So.2d 525 |
| Parties | Peter Allan RUTSKIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Joseph C. Jacobs and E. C. Deeno Kitchen, of Ervin, Pennington, Varn & Jacobs, Tallahassee, for appellant.
Robert L. Sheven, Atty. Gen., and Joseph DeMember, Asst. Atty. Gen., for appellee.
One of three co-defendants in a prosecution for the possession of marijuana has appealed from several orders entered by the Circuit Court for Leon County, including an order denying the appellant's motion for a new trial.
The basic question raised for our determination in this appeal is whether the trial court erred in denying the appellant's motion for a directed verdict of acquittal, grounded primarily upon the insufficiency of the trial evidence to prove beyond a reasonable doubt that the appellant knew that marijuana was on his premises.
The transcript of the trial testimony established the following facts pertinent to our present consideration:
One James M. Hanna, Special Agent, United States Customs, had occasion to observe at the U.S. Postal Inspector's office in Tallahassee, Florida, a certain parcel of mail addressed to the appellant at his Tallahassee apartment. On the parcel appeared as the return address an A.P.O. number, marked Korea. An examination of the parcel by Hanna revealed that it contained what appeared to be cannabis sativa, or marijuana.
On June 10, 1970, at about 9:00 a.m. Hanna applied by affidavit for a search warrant in order that he and other law enforcement personnel might be authorized to search the appellant's apartment for the said parcel upon its delivery.
Upon securing the search warrant, Hanna and other officers kept the parcel under continuous surveillance until it was delivered by a U.S. postal carrier to the apartment leased by the appellant and his roommate, the co-defendant Richard Melvin Cone, III.
The postal carrier knocked on the apartment door, and the appellant opened the door, took the parcel, and signed a receipt therefor.
Approximately two minutes after the postal carrier left the premises, Hanna, accompanied by three officers, knocked at the apartment door and announced himself as a federal officer having a search warrant.
Shortly thereafter, the appellant opened the door to allow Hanna and the other officers to enter. Upon entering the premises, the officers found the appellant and the defendant Cone in the living room and the defendant Deborah Jean Sanneman in the bathroom.
One of the officers testified that, after entering the apartment, he proceeded into the bathroom area and noted that the water in the commode was swelling and that there were some pieces of substance in the commode. He called this substance in the attention of one of the other officers, who retrieved the substance from the commode and the bathroom, putting the substance into a vial and putting the vial in his pocket. The substance in question turned out to be three short stands of marijuana.
Later, when all three of the defendants were in the living room, Hanna served the search warrant on the appellant. Upon Hanna's reading the search warrant, the appellant pointed to the mail parcel sought, which was on the couch in the living room in plain view. The parcel had not been opened, nor did it appear that any attempt had been made to open it.
At the trial of the appellant, jointly with the defendants Cone and Sanneman, the prosecution presented expert testimony which identified the contents of the mail parcel and the three strands of debris found in the commode as marijuana.
The jury found the appellant guilty of possession of marijuana and his co-defendants Cone and Sanneman not guilty.
In this appeal the appellant contends, and we think rightly, that the above evidence is legally insufficient to prove that he had knowledge that the mail parcel contained marijuana or that he had possession or control of the three short strands of marijuana retrieved from the commode.
In the first place, the officers entered the apartment about two minutes...
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...Mass. 490, 499, 350 N.E.2d 436 (1976). Accord Hilding v. State, 291 So.2d 111, 112-113 (Fla.Dist.Ct.App.1974); Rutskin v. State, 260 So.2d 525, 525-527 (Fla.Dist.Ct.App.1972); People v. Ackerman, 2 Ill.App.3d 903, 905-906, 274 N.E.2d 125 (1971); State v. Richards, 155 N.J.Super. 106, 109-11......
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