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On
appeal from the Circuit Court for Alachua County. James M.
Colaw, Judge.
Andy
Thomas, Public Defender, and Danielle Jorden, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley
Moody, Attorney General, and Tabitha Herrera, Assistant
Attorney General, Tallahassee, for Appellee.
OPINION
Lewis,
J.
Appellant, Dion Johnson, appeals his convictions for
trafficking in substituted cathinones, possession of a
structure where drugs are trafficked, sold, or manufactured,
and use or possession of drug paraphernalia. Appellant argues
that the trial court erred in denying his motion for judgment
of acquittal. Although we find no error in the denial of
Appellants motion as to the possession crimes and affirm
those convictions, we agree with Appellant as to the
trafficking offense and, therefore, reverse that conviction.
Appellant was visiting the house at issue when SWAT team
members executed a search warrant. There were other
individuals present at the residence. Appellant was neither
the owner nor the lessee of the house and was not the named
subject of the search warrant. The evidence at trial
established that many people in the neighborhood would freely
come and go from the house. One of the States witnesses
testified that drugs were routinely sold there and that
although she could not remember the exact date, she had seen
Appellant sell drugs from there on one occasion. Appellant
was in the living room when law enforcement arrived. Various
drugs were found in the bedrooms, including what was
determined to be substituted cathinones. The only item found
in the house that had any connection to Appellant was a cell
phone. The one photograph found on the phone showed
approximately six baggies on top of what was identified as
the kitchen countertop in the house. The baggies contained
unidentified items, but the way in which they were tied was
similar to the way in which the baggies containing the drugs
found in the bedrooms were fastened. The photograph was taken
two days before the search warrant was executed. The trial
court denied Appellants motion for judgment of acquittal,
relying in part upon the photograph of what "appeared to
be similar suspected controlled substances being photographed
from within that house." The jury found Appellant guilty
of the three offenses at issue along with a fourth offense,
the conviction for which was not appealed. It found him not
guilty of two other drug-related offenses. The trial court
sentenced Appellant to fifteen years imprisonment on the
trafficking offense and to time served and probation on the
other offenses
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for which he was found guilty. This appeal followed.
An
appellate court reviews a trial courts denial of a motion
for judgment of acquittal de novo to determine whether the
evidence is legally sufficient to sustain a conviction; in
doing so, the court must consider the evidence and all
reasonable inferences therefrom in a light most favorable to
the State. Kemp v. State, 166 So.3d 213, 216 (Fla.
1st DCA 2015). In a case where the State submitted some
direct evidence, the denial of a motion for judgment of
acquittal will be affirmed if it is supported by competent
and substantial record evidence. McWatters v. State,
36 So.3d 613, 631 (Fla. 2010). In a wholly circumstantial
evidence case, however, a special standard applies, whereby a
conviction cannot be sustained unless there is competent,
substantial evidence inconsistent with any reasonable
hypothesis of innocence. Id. ; see also
Kocaker v. State, 119 So.3d 1214, 1225 (Fla. 2013)
(explaining that the State is only required to introduce
competent evidence inconsistent with the defendants theory
of events and need not conclusively rebut every possible
variation of events that may be inferred).
Appellant contends in part that his convictions cannot be
sustained because the States evidence was not inconsistent
with his reasonable hypothesis of innocence. However, this
specific argument was not raised below when defense counsel
moved for a judgment of acquittal. As we have explained,
there are two legally distinct issues that can be raised by a
defendant in a motion for judgment of acquittal: (1) whether
the State presented legally sufficient evidence to establish
each element of the charged offense; and (2) whether in a
case where the only proof of guilt is circumstantial, the
States evidence is inconsistent with any reasonable
hypothesis of innocence, including the defendants own
version of the evidence. Newsome v. State, 199 So.3d
510, 512 (Fla. 1st DCA 2016). "To preserve either or
both of the above issues, the precise legal argument as to
why the evidence is insufficient to sustain a conviction must
be presented to the trial court." Id. at 513.
Because Appellant did not raise a circumstantial
evidence/reasonable hypothesis argument below, that argument
was not preserved for appeal. Id. ; see
also Charles v. State, 253 So.3d 1230, 1233
(Fla. 1st DCA 2018) ("Here, as in Newsome,
appellants counsel failed to preserve a claim that the
evidence was wholly circumstantial, and thus the special
standard of review for circumstantial evidence claims was not
triggered."). As such, in analyzing this issue, the
question is whether the trafficking conviction is supported
by competent, substantial evidence. See
McWatters, 36 So.3d at 631.
Appellant
was tried and found guilty of violating section
893.135(1)(k), Florida Statutes (2017), which prohibits a
person from selling, purchasing, manufacturing, delivering,
or bringing into Florida or knowingly being in actual or
constructive possession of ten grams or more of a substituted
cathinone. To prove the crime of trafficking, the State must
prove that: (1) the defendant knowingly possessed, sold,
purchased, manufactured, delivered, or brought into Florida
the substance at ...