County Criminal
Court: CRIMINAL LAW – Jury trial – Evidence – Although defendant driver of
car argued that the marijuana was the passenger’s (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
driver’s seat where the defendant’s leg would have been resting. Judgment and
sentence affirmed. Hester v. State, No. CRC 05-14 APANO, (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
FRANCOIS HESTER
Appellant,
v. Appeal No. CRC 05-14 APANO
UCN522005AP000014XXXXCR
STATE OF
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
ORDER AND OPINION
THIS
MATTER is before the Court on the defendant, Francois Hester’s, appeal from a
judgment and sentence entered by the
The
defendant was convicted, following a jury trial, of possession of marijuana.
The defendant contends that his motion for judgment of acquittal (“JOA”) 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 (
The defendant was seen by the police running a red light. A traffic stop was made. While the officer was approaching the defendant’s car he observed the defendant, who was in the driver’s 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 driver’s 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 driver’s seat where the defendant had been sitting. The officer testified that the marijuana would have been under the defendant’s 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 defendant’s, 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 defendant’s motion for JOA.
IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.
DONE
AND ORDERED in Chambers at
____________________________
Nancy Moate Ley
Circuit Judge
____________________________
R. Timothy Peters
Circuit Judge
____________________________
John A. Schaefer
Circuit Judge
cc: State Attorney
Public Defender
Judge Freeman