Johnson v. State

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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 Appellant’s 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 State’s 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 Appellant’s 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 court’s 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 defendant’s 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 State’s 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 State’s evidence is inconsistent with any reasonable hypothesis of innocence, including the defendant’s 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, appellant’s 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 ...