Smith v. State

175 So. 3d 900, 2015 Fla. App. LEXIS 13616, 2015 WL 5306179
District Court of Appeal of Florida·Decided September 11, 2015·No. No. 1D14-6·Published·Cited by 6 cases

Opinion

PER CURIAM.

In this direct appeal, Paul Dan Smith, III, challenges the judgments and sentences entered in two separate cases. We affirm the judgment and sentence in case number 2013-2017-CF without comment. We write only to address the issues raised regarding case number 2012-3590-CF.

I.

After a jury trial in case' number 2012-3590-CF, Smith was convicted of unlawful possession of a listed chemical , (pseu-doephedrine) and possession of ammunition by a convicted felon and sentenced to seven years in prison as a habitual felony offender. On appeal, Smith argues that the trial court erred in denying his motion for judgment of acquittal on both counts because the State failed to prove that he actually or constructively possessed the pseudoephedrine and ammunition. For the reasons that follow, we affirm Smith’s conviction for possession of a listed chemical, but we reverse the conviction for possession of ammunition.

In November 2012, three officers with the Bay County Sheriffs Office observed Smith sitting in the driver’s seat of a truck parked in the driveway of a residence in Panama City. A woman named Harlee Manning was in the passenger seat. After the officers removed Smith and Manning from the vehicle, they saw a clear plastic bag filled with ammunition in plain view in a cup holder in the truck’s center console. This prompted .the officers to conduct a full search of the vehicle, which led to the discovery of additional ammunition, blister packs containing 48 pseudoephedrine pills, two digital scales, a bottle of MSM (a [902] substance known to be used to manufacture methamphetamine), and a metal box containing drug paraphernalia and handwritten receipts purportedly used for drug transactions.

Officer Richard Bagwell testified that the blister packs of pseudoephedrine were located in an open compartment in the driver’s side door panel, making them visible and within “arm’s reach” of anyone sitting in the driver’s seat. The additional ammunition, scales, and MSM were found inside a closed compartment in the center console, and the metal box was located under the passenger’s seat, all outside of plain view. All of the items were processed for fingerprints, but no identifiable prints were found.

Officer Jamie Young explained that because pseudoephedrine is an “important substance in the manufacture of methamphetamine,” it was significant that the blister packs were not found inside the original store packaging. He testified that people who use pseudoephedrine for unlawful purposes often will dispose of the box that it came in to keep them purchase of the substance from being tracked by the name brand. He further testified that the digital scales, which may be used to “weigh controlled substances for the purpose of sale,” contained a substance that tested positive for the presence of methamphetamine. In addition, the receipts found inside the metal box contained the following handwritten notations: “Whiskey,” “3.5,” and “$350.” According to Officer Young, the going rate for methamphetamine was $100 a gram, so the notations likely signified the sale of 3.5 grams for $350. Officer Dennis Rozier testified that Smith is known to go by the nickname “Whiskey.”

At the close of the State’s case-in-chief, the defense moved for a judgment of acquittal, arguing that the State failed to establish that Smith was in possession of the pseudoephedrine and ammunition at the time of his arrest. The State asserted that there was sufficient evidence to prove actual possession because both items were within Smith’s reach and he had the ability to exercise control over them. The trial court denied the defense’s motion, stating “I’m going to let this go to the jury at this point.”

The defense called Aubrey Landree, who testified that she owned the truck and that the pseudoephedrine and ammunition found inside it belonged to her. Smith took the stand and testified that none of the items seized during the search were his, he never saw them while he was sitting in the truck, and he had no knowledge of their presence at that time. Smith acknowledged that his nickname was ‘Whiskey,” but he denied writing it on the receipts found inside the metal box. At the close of all evidence, the defense renewed its motion for judgment of acquittal, which the trial court again denied.

II.

The trial court’s ruling on a motion for a judgment of acquittal is reviewed de novo to ensure that there is legally sufficient evidence to sustain a conviction. Kemp v. State, 166 So.3d 213, 216 (Fla. 1st DCA 2015).

To obtain convictions for unlawful possession of a listed chemical and possession of ammunition by a convicted felon, the State had the burden to prove, inter alia, that Smith actually or constructively possessed the pseudoephedrine1 and am[903] munition at the time of his arrest. See §§ 790.23(1), 893.149(1), Fla. Stat. (2012); see also Sundin v. State, 27 So.3d 675, 676 (Fla. 2d DCA 2009) (“All possession crimes may be either actual or constructive.”).

At trial, it was undisputed that the blister packs of pseudoephedrine and plastic bag of ammunition were not found in Smith’s hands or on his person; therefore, to establish actual possession, the State had to show that the items were within his “ready reach” and under his control. Harris v. State, 954 So.2d 1260, 1262 (Fla. 5th DCA 2007). To establish constructive possession, the State had to prove that Smith knew the items were present inside the truck and had the ability to exercise control over them. Smith v. State, 125 So.3d 359, 361 (Fla. 1st DCA 2013).

During the State’s case-in-chief, the prosecutor presented legally sufficient evidence to establish that the blister packs and ammunition were within Smith’s ready reach and that he knew they were present while he was inside the truck. There was no dispute that the items were found just inches away from where Smith was sitting in the driver’s seat. And, although Smith denied seeing the items while he was inside the truck, there was testimony from the officers that they were located in plain view. See Smith, 125 So.3d at 361 (explaining that the knowledge element of constructive possession may be inferred from evidence that contraband was located in plain view). Thus, the dispositive question presented by Smith’s motion for judgment of acquittal was whether the State had established his control over the pseu-doephedrine and ammunition. See Isaac v. State, 730 So.2d 757, 758 (Fla. 2d DCA 1999) (“Whether a defendant had dominion and control over contraband is generally a fact issue for the jury, but a judgment of acquittal is proper when there is no evidence from which dominion and control can be inferred.”).

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Smith v. State, 175 So. 3d 900, 2015 Fla. App. LEXIS 13616, 2015 WL 5306179 (Fla. Ct. App. 2015).

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