Julian v. State

545 So. 2d 347, 1989 WL 52824
CourtDistrict Court of Appeal of Florida
DecidedMay 28, 1989
DocketNo. 87-6
StatusPublished
Cited by7 cases

This text of 545 So. 2d 347 (Julian v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Julian v. State, 545 So. 2d 347, 1989 WL 52824 (Fla. Ct. App. 1989).

Opinions

BOOTH, Judge.

This cause is before us on appeal of appellant’s convictions for trafficking in cocaine by possessing 400 grams or more, a violation of Section 893.135(l)(b)3, Florida Statutes, and trafficking in cocaine by sale or delivery of more than 28 but less than 200 grams, a violation of Section 893.-135(l)(b)l, Florida Statutes. Appellant raises three issues on appeal: (1) the trial court erred in denying his motion for judgment of acquittal on Count I because the evidence failed to demonstrate that he was in actual or constructive possession of the cocaine seized from his motel room; (2) the court erred in allowing introduction of hearsay testimony; and (3) the convictions for Counts I and II violate double jeopardy principles because they are based on the same act. After careful consideration, we affirm as to each issue.

In September 1986, Gainesville police received information that “a bunch of Haitians” were selling crack cocaine out of local motels. Using a confidential informant as a go-between, an undercover police officer made contact with one of appellant’s code-fendants, Cebius Charles. Charles was one of several Haitians staying at the Florida Motel in Gainesville, and although Charles [348]*348had no crack, he claimed to know where to get it. He arranged a meeting between appellant and the undercover officer on the night of October 2, at the Florida Motel. Although appellant did not want to make a sale that night, the parties entered into preliminary negotiations. Because appellant was so intoxicated that he was unable to do the required math to fix a price, no purchase was consummated.

The next morning, Charles, the officer and the informant went looking for appellant.1 When they found him, Charles entered appellant’s room for a brief time and emerged with a blue suitcase. The three men returned to the Florida Motel, where they opened the suitcase and found 103 “slabs” of crack weighing 159.8 grams.2 While Charles was counting the money and crack, police made the arrest.

Meanwhile, appellant left his hotel room about a half an hour after the three men departed. Police stopped his car and arrested him, and later obtained his consent to search his room. Although appellant was arrested at 8:30 a.m., police did not arrive to search until 5:30 p.m. While assembling, they saw a woman exit the room. She was not interviewed or otherwise detained, and no charges were filed against her. Appellant told officers prior to the search that the woman had been staying with him in the room.

When police searched, they found 389.9 grams of crack in a bag hidden in a bed’s box spring. A separate piece of crack, some cocaine inside a napkin, and some money were found hidden under a sofa cushion. A beer can, converted into a crack pipe, was in plain view on a coffee table.

Appellant first argues that because the crack was hidden in jointly-occupied premises, the State’s case for Count I necessarily relied on constructive possession. We agree. Appellant further argues that because nothing in evidence directly linked him to the hidden crack and because the room was occupied by another person for several hours after appellant’s arrest but before the search, the evidence was legally insufficient to submit to the jury.

Under Florida law, “constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance.” Brown v. State, 428 So.2d 250, 252 (Fla.1983), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983), quoting Hively v. State, 336 So.2d 127, 129 (Fla. 4th DCA 1976). “To establish constructive possession, the State must show the accused had dominion and control over the contraband, knew the contraband was within his presence, and knew of the illicit nature of the contraband.” Brown, supra, at 252, quoting Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981). “If the premises where contraband is found is in joint, rather than exclusive, possession of a defendant, however, knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership but must be established by independent proof.” Brown, supra, at 252, citing Wale, supra, and Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967). Where contraband is not in plain view, joint occupancy alone is clearly insufficient. Torres v. State, 520 So.2d 78 (Fla. 3d DCA 1988), citing Chappell v. State, 457 So.2d 1133 (Fla. 1st DCA 1984). See also Cortez v. State, 488 So.2d 163, 165 (Fla. 1st DCA 1986).

Appellant contends that the most he-can be convicted of is possession of the amount of crack taken from the suitcase, which is less than the 400 grams needed to support his conviction under Count I. Appellant’s argument focuses on the knowledge issue, and he maintains that the State produced no independent evidence affirmatively showing that he knew about the [349]*349389.9 grams of crack in the room. For our purposes, the question is whether circumstances other than appellant’s nonexclusive possession of the room were introduced at trial to create a jury question on appellant’s knowledge. See Wale v. State, supra, at 740, Giddens v. State, 443 So.2d 1087, 1089 (Fla. 2d DCA 1984), Winchell v. State, 362 So.2d 992, 995 (Fla. 3d DCA 1978). “Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury may lawfully infer knowledge by the accused of the drugs’ presence on the premises.” Winchell, supra, at 995, quoting Frank v. State, supra, at 121.

The State proved that appellant delivered a suitcase containing crack to an undercover police officer less than an hour before he was arrested. The State also proved that the suitcase came from appellant’s room. When the suitcase was seized, police discovered that the crack in it had unusual characteristics which made it particularly distinctive. Testimony by a laboratory analyst and photographs in evidence indicated that each slab was virtually identical to the others, as if made in the same mold. The slabs were of uniform height and width,3 each about two inches long and approximately one-fourth inch thick. They all had the same yellowish-brown color. As stated by an analyst, they looked like French fries.

Unlike in the cases cited above, the drugs in the instant case were not a generic white powder or a generic green, leafy substance. Rather, they were an identifiable, processed product which was highly distinctive in appearance. The jury was entitled to find that the crack in the suitcase and that in the room were part of the same cache of uniquely-molded slabs, and to find that defendant had negotiated a sale shortly prior to his arrest. The evidence showed that appellant was negotiating the night before to deliver 150 pieces at $40 each. However, the undercover officer arrived with only $4,000. This was enough for 100 pieces, and 103 were found in the suitcase. Appellant’s ability to negotiate the 150-piece sale and consummate it with a delivery of as many pieces as his buyer had money for, was evidence of his possession as early as the night before, and ability to control the remaining crack found in the room.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Everette Slocum v. State of Florida
District Court of Appeal of Florida, 2025
Christopher Antiawn Jones v. State of Florida
District Court of Appeal of Florida, 2018
Kemp v. State
166 So. 3d 213 (District Court of Appeal of Florida, 2015)
Robinson v. State
936 So. 2d 1164 (District Court of Appeal of Florida, 2006)
State v. Travis
808 So. 2d 194 (Supreme Court of Florida, 2002)
Green v. State
557 So. 2d 673 (District Court of Appeal of Florida, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
545 So. 2d 347, 1989 WL 52824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/julian-v-state-fladistctapp-1989.