County Criminal Court: CRIMINAL LAW Ė Jury trial Ė Evidence Ė Although defendant driver of car argued that the marijuana was the passengerís (who escaped), he was properly convicted of possession of marijuana because there was evidence he admitted smoking the marijuana and the marijuana was found burning on the driverís seat where the defendantís leg would have been resting. Judgment and sentence affirmed. Hester v. State, No. CRC 05-14 APANO, (Fla. 6th Cir.App.Ct. Sept. 26, 2005).









††††††††††† Appellant,


v.                                                                                                                                                                   Appeal No. CRC 05-14 APANO

†††† UCN522005AP000014XXXXCR



††††††††††† Appellee.




Opinion filed ________________.


Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Thomas Freeman


Kelly Waechter, Esq.

Assistant Public Defender


C. Marie King, Esq.

Assistant State Attorney




††††††††††† THIS MATTER is before the Court on the defendant, Francois Hesterís, appeal from a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence.

††††††††††† The defendant was convicted, following a jury trial, of possession of marijuana. The defendant contends that his motion for judgment of acquittal (ďJOAĒ) should have been granted by the trial court. The standard of review for reviewing the denial of the motion for JOA is de novo. Tibbs v. State, 397 So.2d 1120 (Fla. 1981). In addition, in moving for a JOA the defendant admits not only the facts in evidence, but also every reasonable inference favorable to the State. State v. Odom, 862 So.2d 56 (Fla. 2d DCA 2003).

††††††††††† The defendant was seen by the police running a red light. A traffic stop was made. While the officer was approaching the defendantís car he observed the defendant, who was in the driverís seat, and a passenger, who was in the front passenger seat, make furtive movements towards the center console. The passenger then quickly left the car and fled. He was never apprehended. The defendant stayed in the driverís seat. Upon approaching the car, the officer smelled the odor of marijuana coming from the car. The defendant was asked to get out of the car. When he got out of the car the officer noticed the butt of a still-burning marijuana cigarette on the driverís seat where the defendant had been sitting. The officer testified that the marijuana would have been under the defendantís right leg. The officer testified that the defendant admitted that he had smoked the marijuana. However, upon cross-examination the officer conceded that his report did not reflect that. Instead, the report said that the defendant denied the marijuana was his. The officer was, however, adamant that the defendant did say that he smoked the marijuana. It may well be that both of these statements are true: the marijuana might not be the defendantís, but the defendant still smoked it. Either way, taking every inference in favor of the State as required for reviewing a motion for JOA, there is evidence (even if perhaps conflicting) for a jury to conclude that the defendant possessed the marijuana.

††††††††††† The defendant contends that the State failed to exclude every hypothesis of innocence; i.e., the possibility that the marijuana belonged to the passenger. This argument, however, fails because the evidence that the defendant possessed the marijuana was direct, and not just circumstantial. The proximity of the marijuana [see Williams v. State, 742 So.2d 509 (Fla. 1st DCA 1999)] --- it was found still burning where his right leg would have been resting --- and the admission by the defendant that he had smoked the marijuana [see State v. Eckroth, 238 So.2d 75 (Fla. 1975)] are both direct evidence tending to prove the defendant possessed the marijuana. It was, therefore, proper for the trial court to deny the defendantís motion for JOA.

††††††††††† IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of September, 2005.



††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Nancy Moate Ley

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge




††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† R. Timothy Peters

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge




††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††††††††††††††† ____________________________

††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††††††††††††††† John A. Schaefer

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Circuit Judge


cc:State Attorney


††††††† Public Defender


††††††† Judge Freeman