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 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.
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 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 issue; (2) the substance was a controlled
substance; and (3) the substance was a certain weight. Fla.
Std. Jury Instr. (Crim.) 25.7(a).
Where,
as here, the conviction is based on a theory of constructive
possession, the State is required to prove that a defendant
knew of the presence of the contraband and had the ability to
maintain dominion and control over it. Nolley v.
State, 237 So.3d 469, 474 (Fla. 1st DCA 2018).
"Knowledge may be established if the contraband was in
plain view in the common areas. Dominion and control may be
inferred if the defendant was a resident or owner of the
premises in exclusive possession." Smith v.
State, 125 So.3d 359, 361 (Fla. 1st DCA 2013). "If
the evidence showed joint possession of the premises, or that
the defendant was a visitor, the state must establish control
over the contraband by independent proof beyond mere
proximity, such as by evidence of incriminating statements or
circumstances." Id.; see also Nolley, 237 So.3d
at 474-75 (explaining that when the premises where the
contraband is found are in joint possession, the elements of
constructive possession may not be inferred and must be
established by independent proof, which "may be evidence
establishing that the defendant had actual knowledge of the
presence of the contraband in the place where it was found or
circumstantial evidence from which a jury might properly
infer that the defendant had knowledge of the presence of the
contraband").
We
agree with Appellant that the State's evidence was
insufficient to show his knowledge of and control over the
substituted cathinones. The State offered no evidence
connecting Appellant to the bedroom in which the cathinones
were located. It is undisputed that Appellant was in the
living room when law enforcement arrived and that other
individuals were in the house at the time. Although one of
the State's witnesses testified that Appellant sold drugs
from the residence on one occasion, the witness was unable to
provide the date of that alleged sale, and it is unknown what
type of drugs Appellant sold. As such, other than serving as
evidence that Appellant had knowledge that drugs were sold
from the residence, that witness's testimony provided no
link between Appellant and the substituted cathinones for
which he was convicted of trafficking.
It
appears from the record and the State's argument on
appeal that the primary piece of evidence relied upon by the
State was the photograph found on Appellant's phone.
Indeed, the trial court specifically mentioned the photograph
of "what appeared to be similar suspected controlled
substances being photographed from within that home."
However, even when taking the evidence in the light most
favorable to the State, which we must, and even assuming that
the photograph was taken by Appellant since it was found on
his phone, that does not, in our opinion, show that Appellant
had knowledge of and control over the substituted cathinones.
Not only was the photograph taken two days prior to the
search, but, according to the evidence, it was taken in the
kitchen, not in the bedroom where the drugs at issue were
found. Our conclusion is buttressed by the fact that the
State did not offer any testimony or evidence as to what the
items in the photograph actually were or appeared to be.
Furthermore, even if the State had presented a witness to
testify that the items in the photograph were suspected
narcotics and even though the baggies shown in the photograph
were tied in a similar manner as were the baggies in the
bedroom, the color of the items, from our review of the
record, does not match. [*] As the State acknowledges on
appeal, the photograph of the substituted cathinones found in
the bedroom were "brownish colored portions of a
substance in cube shapes." While the State contends that
the photograph on Appellant's phone "shows what
appears to be the same brownish cube-shaped substance,"
we see nothing in the photograph that matches the substance
that was identified as substituted cathinones.
It is
for these reasons that we reject the State's argument
that the photograph constitutes independent proof that
Appellant had knowledge of the substituted cathinones found
in the bedroom. Nor does the photograph amount to independent
proof that Appellant had control over the drugs for which he
was convicted of trafficking. See Smith, 125 So.3d
at 360 ("The fact that the man [in a photograph relied
upon by the State] is holding a Gatorade bottle that might
contain methamphetamine, because it looks like the smaller
Gatorade bottle that was seized during the search, may have
been incriminating regarding whether appellant had knowledge
about the bottle found during the search, but it did not
constitute evidence that he had control over the bottle found
during the search, which the evidence showed was a different
bottle."); see also Thomas v. State, 269 So.3d
681, 685 (Fla. 2d DCA 2019) (holding that the trial court
erred in denying the appellant's motion for judgment of
acquittal where the State's evidence proved only that the
appellant was one of multiple individuals who had access to a
room containing the drugs at issue); Evans v. State,
32 So.3d 188, 189-91 (Fla. 1st DCA 2010) (holding that the
State failed to offer independent proof of the
appellant's knowledge of the hidden contraband and noting
that although presence of the appellant's passport in the
bag containing contraband suggested that he could have placed
the passport there, that inference provided no time frame as
to when the contraband came to ...