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Nolley v. State

Florida Court of Appeals, First District

February 9, 2018

Jeffrey R. Nolley, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

         On appeal from the Circuit Court for Santa Rosa County. David Rimmer, Judge.

          Andy Thomas, Public Defender, Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.

          LEWIS, J.

         Appellant, Jeffrey R. Nolley, appeals his convictions and sentences for trafficking in methamphetamine, unlawful possession of pseudoephedrine, possession of cannabis, and possession of drug paraphernalia and raises three issues, only two of which merit discussion. Appellant argues that the trial court erred by denying his motion for judgment of acquittal as to the trafficking count because the evidence was insufficient to establish constructive possession. Appellant further contends that fundamental error occurred when the detective gave opinion testimony about his guilt; or, in the alternative, defense counsel rendered ineffective assistance that is apparent on the face of the record by failing to challenge the testimony. For the reasons that follow, we disagree and, therefore, affirm.

          Facts

         Appellant was charged with trafficking in amphetamine or methamphetamine (28 grams or more, but less than 200 grams) (Count 1); unlawful possession of pseudoephedrine (Count 2); possession of cannabis (less than 20 grams) (Count 3); possession of drug paraphernalia (Count 4); and possession of the prescription drug Cyclobenzaprine without prescription (Count 5). Count 5 was nolle prossed.

         The evidence at trial established that Appellant lived in a one-room garage apartment on Richard Thomley's property. Thomley, who lived in the main residence, had partitioned off a room in his detached garage, which was located in the back of his fenced property. The apartment was small, about fifteen by fifteen feet, and was separated from the rest of the garage by a door. Appellant lived in the apartment by himself from July 2015 until his arrest in March 2016, but often had visitors. After finding his garage filled with smoke and emitting a strong smell on several occasions, Thomley informed Detective Jerry Nash that he suspected Appellant was making methamphetamine in the apartment and that one of the people who was visiting the apartment was Joshua Scott. To corroborate the information Thomley provided, Nash checked Appellant's purchases of pseudoephedrine, as compiled by the National Precursor Log Exchange ("NPLEx"). The NPLEx records showed that Appellant made seven purchases between December 2015 and March 2016, which, Sergeant Blake Weekley testified, is excessive and explains why an eighth purchase was blocked.

         Nash searched the dumpster that was located on the county right-of-way, just outside of Thomley's gate and near the garage, and that served Thomley's and his son's residences. The dumpster contained receipts for Appellant's purchases of an instant cold pack, plastic tubing, and lithium batteries and Scott's purchase of pseudoephedrine, which, Nash testified at trial, are all items used in manufacturing methamphetamine. Nash also searched a burn pile that was located near the garage apartment and inside the fenced property, and in it he found burned batteries with the tops cut off, burned blister packs, and a Coleman fuel can, which, Nash testified, were also items used in manufacturing methamphetamine. Thomley testified that he never burned anything in the burn pile.

         Subsequently, the police set up surveillance at Appellant's apartment and observed him arriving with Scott and Amy Thompson. The only thing they carried into the apartment was Thompson's purse. After about five minutes, the police did a "knock and talk." The only people inside the apartment were Appellant, Scott, and Thompson. Upon learning that Appellant had pseudoephedrine on his person, Nash arrested him. During the ensuing search, Nash found in Appellant's pockets a pipe that was used to smoke methamphetamine and a box of Sudafed along with Scott's receipt for it. Nash testified that Sudafed contains pseudoephedrine, which is the main ingredient in manufacturing methamphetamine, and that it is common for people who manufacture methamphetamine to have Sudafed purchased by others because one is allowed to purchase only so many boxes in a month.

         After Appellant's arrest, his apartment was secured and searched pursuant to a warrant. The police found in the one-room apartment numerous items consistent with a meth lab, including a hydrogen chloride gas generator and a one-pot cook vessel under the bathroom sink, fourteen one-pot cook jugs, nine additional hydrogen chloride gas generators, three empty Coleman fuel containers, three empty Drano containers, plastic tubing, salt, pealed lithium battery casings, empty pseudoephedrine boxes and blister packs, empty ice compression boxes, a glass pipe used to smoke methamphetamine, empty lighter fluid containers, a receipt for pseudoephedrine, coffee filters with chemical residue, and an empty Voss water bottle. Most of the items were found in heavy-duty garbage bags that also contained regular household garbage and a receipt with Appellant's name. Marijuana was found on the dresser and inside a backpack that also contained mail belonging to Appellant. There was no doubt in Weekley's mind that the items found in Appellant's apartment were remnants of a meth lab. Thomley testified that none of the items found in the apartment belonged to him. The liquid from the one-pot vessel was tested and contained about ninety-three grams of methamphetamine.

          Most of the items were hazardous material that had to be destroyed because they are so corrosive that they eat through the bottles and continue to produce gas. Weekley testified that the bottles had been sitting for some time because it would have taken at least a week or two for the amount of deterioration observed on some of them to occur. Nash explained that the liquid from the one-pot vessel was placed into a glass jar, then into a plastic container, and then into a paint can for safekeeping because, as could be seen in the pictures, it eats through the bottles, deteriorates the glass container lids, and leaks out.

         In cross-examining Nash, defense counsel called into question the police investigation in part by eliciting testimony that Scott was let go even though a pipe was found on his person, he was on the run with warrants, and he was not charged with trafficking methamphetamine (though he was charged with distribution of a listed chemical) and that Thompson likewise ...


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