Sheridan v. State, 2D01-3885.

• Decision Date: 25 July 2003
• Docket Number: No. 2D01-3885.,2D01-3885.
• Citation: 850 So.2d 638
• Parties: Justin SHERIDAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

850 So.2d 638

Justin SHERIDAN, Appellant, v. STATE of Florida, Appellee.

No. 2D01-3885.

District Court of Appeal of Florida, Second District.

July 25, 2003.

Ronald N. Toward, Bartow, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Justin Sheridan appeals from his judgment and sentence for trafficking in methamphetamine, contending that the trial court erred in failing to grant his motion for judgment of acquittal and reducing the offense to possession. We agree and reverse.

On January 19, 2001, the automobile being operated by Mr. Sheridan was stopped by Polk County Sheriff's Office narcotics deputies. At trial, the defense focused on two issues: whether Mr. Sheridan possessed the requisite knowledge to sustain a conviction and whether the State proved the trafficking weight of the drug. Our resolution of these issues focuses on the testimony of three witnesses.

The State's first witness, Detective Wallace, testified that he conversed with Mr. Sheridan at the scene. After Detective Wallace told Mr. Sheridan that law enforcement was aware that Mr. Sheridan intended to trade an ounce of methamphetamine for two pounds of marijuana, Mr. Sheridan admitted to Detective Wallace that he was delivering the substance for George Mendosa and that he had made other deliveries for Mr. Mendosa in the past. According to the detective, Mr. Sheridan stated that he was coming over here with this ounce to trade for two pounds of marijuana. Mr. Sheridan made this statement after Detective Bell had shown him a bag of a substance that had presumptively tested positive for methamphetamine, at which time Mr. Sheridan was arrested.

The State's expert chemist then testified that he had tested and weighed a baggie marked State's exhibit number two. The testing identified the presence of methamphetamine, and the contents of the baggie weighed less than one ounce, at 23.0 grams. Importantly, the witness also testified that a baggie identified as State's exhibit number one had not been provided to him for examination. He had not seen or tested either that baggie or its contents. During the chemist's testimony the defense tendered two objections, one as to the substance's identity and the other as to the weight of the baggie marked as exhibit two. Each was overruled.

Finally, Detective Bell testified that State's exhibits one and two were the baggies he had seized from the automobile operated by Mr. Sheridan. The field test indicated the contents were methamphetamine rather than similar looking items such as flour or vitamin powder. When asked how the substance from State's exhibit number one got into the baggie marked State's exhibit two, Detective Bell testified that Detective Wallace "separated them" prior to entering them as evidence.

At the conclusion of the State's case, defense counsel offered two bases for a judgment of acquittal. As the first ground, he asserted that his client lacked the requisite knowledge or intent to commit the offense, and the trial court properly denied the motion on that basis. Second, defense counsel argued that the State failed to prove the offense of trafficking because it failed to prove the element of weight. Because the State could prove the weight necessary for the element of the trafficking crime only by improperly commingling the contents of the two bags and then finding an aggregate weight, the defense contended that the offense should be reduced to possession. The court's denial of the motion for judgment of acquittal on that basis was error. The State charged that Mr. Sheridan had violated section 893.135, Florida Statutes (2000), by possessing fourteen grams or more of a controlled substance. Detective Bell testified that he seized the two baggies marked, respectively, State's exhibits one and two from Mr. Sheridan's vehicle. The chemist testified that only one baggie had been provided for chemical testing. The conclusion is inescapable that someone from law enforcement commingled the contents of the two baggies into one.

In Safford v. State, 708 So.2d 676 (Fla. 2d DCA 1998), our court condemned this practice and concluded that combining the contents of a number of packets into one mixture to meet the quantitative element of the trafficking statute was error. This court noted:

The testing of the powder cocaine mixture, however, is distinguishable in that there are many white powdery substances which can resemble powder cocaine. Therefore, the chemist's failure to test each individual packet before the contents were combined and weighed mandates reversal.

Id. at 677. To reach this conclusion this court relied upon Ross v. State, 528 So.2d 1237, 1239 (Fla. 3d DCA 1988), which held that the State must "establish that each of the subject packets contains cocaine or a mixture thereof which in the aggregate satisfies the ... statutory weight." See also State v. Clark, 538 So.2d 500 (Fla. 3d DCA 1989) (affirming the trial court's reduction of a charge from trafficking to possession because the chemist mingled the powdery contents of capsules that were tested for heroin with the contents of untested capsules prior to weighing them).

The rationale behind Ross applies to this case. The substance found by the detective was a powdery material, according to State testimony, similar in appearance to other noncontrolled substances, such as vitamin powder or flour. Therefore, the contents of each baggie should have been tested separately, and, if found to be the same controlled substance, the weights combined. As the State bears the burden of proof as to the amount, it is inappropriate to permit the State to commingle, albeit negligently, the contents without testing and then assert that the contents of each baggie when aggregated meet the trafficking quantity, all without providing the defense with an opportunity to test the alleged drugs.¹ The State's procedure created an assumption as to the amount without the necessary proof. Thus, the evidence of trafficking was legally insufficient and should not have gone to the jury.

To avoid the application of this rule the dissent cites Pama v. State, 552 So.2d 309 (Fla. 2d DCA 1989). There, this court cited the recognized rule that the "state may prove the identity of a controlled substance by circumstantial evidence such as the substance's appearance, odor, and packaging, by the circumstances under which the substance was seized ...; [including] a person's on-the-scene remarks identifying the substance...." Id. at 311. We have no disagreement with the rule as properly used here to establish that the aggregated substance contained some percentage of methamphetamine. The record establishes the presumptive testing, the chemical testing, and the accused's admission. The defendant's admission refuted his contention that he lacked knowledge. However, Pama cannot be read to relieve the State of its burden to prove the contents of each baggie. Pama is factually dissimilar in that the testimony of weight came not from a suspect but from a law enforcement officer; and it is significant also that the Pama court refused to use that testimony to find a trafficking quantity. We note that this record is silent as to packaging. While the record establishes the existence of two baggies, there is no testimony describing the contents of each baggie.

Clearly, the case law permits circumstantial evidence to be used to establish the identity of certain controlled substances such as marijuana and crack cocaine. See Brooks v. State, 762 So.2d 879, 893-94 (Fla.2000). However, the rule has not yet been extended to allow circumstantial proof of weight. In Brooks, our supreme court held that a drug dealer may express an opinion regarding the identity of crack cocaine if a proper predicate can be established. Id. at 893. However, the court further explained in Brooks that the trial court erred by allowing the drug dealer to express his opinion as to the exact weight of each piece of crack cocaine, because "there was not a sufficient predicate establishing that Johnson was qualified as an expert in determining the exact weight of crack cocaine rocks by visual inspection." Id. at 894 n. 17. Similarly, the record here fails to establish that Mr. Sheridan was a dealer or that he was qualified to offer an opinion as to the exact weight of the drug by visual inspection.

Recently, the distinction between powdered cocaine and crack cocaine in the context of determining the weight for trafficking purposes was noted in Lyons v. State, 807 So.2d 709, 710 (Fla. 5th DCA 2002). There, the court noted that the rule against commingling did not apply to crack cocaine but did apply to the powdered cocaine yet allowed evidence of weight despite a commingling contention because of the unique packaging of the drugs. The court relied on the following factors: The powdered cocaine was packaged to resemble two bricks of approximately the same size; the bricks were similar in appearance; and they were hidden together in a single cereal box wrapped with tape. Those factors are not present here. This record is devoid of evidence describing the contents of each baggie, the approximate amount each contained, or their packaging as a single unit.

Ultimately, instead of relying upon evidence, the dissent assumes that the two packages each contained methamphetamine because the accused said he had an ounce of the drug, a weight not supported by the chemist's testimony (although admittedly there was only a one-gram difference). It is possible that one of the two bags held the drug or that both did. As a result of the commingling of the contents, the truth of the matter is incapable of proof. The accused's opinion as to weight, without more, is insufficient under present law to establish a trafficking weight of fourteen grams or more.

Reversed with instructions to grant the motion for judgment of...