Lead Opinion
This case is before the Court for review of the decision of the First District Court of Appeal in Greenwade v. State,
FACTS
On April 29, 2009, Detective Donald Bishop and other officers from the Jacksonville Sheriffs Office executed a search, warrant at a Jacksonville residence. As the officers walked up the driveway of the residence toward the garage, they observed Baron Greenwade sitting in a chair behind a table inside the garage. In an attempt to elude arrest, Greenwade fled into the house, where he was eventually captured and placed in custody. After he was detained, Greenwade told Detective Bishop, “I know why you’re here. I have been set up. What you are looking for is in the garage.” Greenwade then led Detective Bishop to the table in the garage behind which the officers had observed him sitting when they had initially arrived. On the table was a digital scale, and beside the table was a green bag with a spoon on top covered with a white residue. Green-wade admitted to Detective Bishop that the green bag contained cocaine. Inside the bag, Detective Bishop found nine one-ounce baggies that contained a white powder.
All nine baggies were individually field tested before they were transferred to the Sheriffs Office property room where each baggie was emptied into nine individual envelopes.
Greenwade was charged by information with trafficking in cocaine in an amount more than 200 grams but less than 400 grams, possession of controlled substance paraphernalia, possession of a firearm by a convicted felon, and resisting an officer
The reasoning and conclusion of the decision below can be best explained by first examining our decision in State v. Yu,
The legislature has broad discretion in determining necessary measures for the protection of the public health, safety, and welfare, and we may not substitute our judgment for that of the legislature as to the wisdom or policy of a legislative act. Section 893.135(l)(b) bears a reasonable relationship to the legitimate state objective of protection of the public health, safety, and welfare. The legislature reasonably could have concluded that a mixture containing cocaine could be distributed to a greater number of •people than the same amount of undiluted cocaine and thus could pose a greater potential for harm to the public.
Id. (emphasis supplied; citation omitted).
The First District framed its analysis based upon the emphasized language above, and stated “[k]eeping in mind this policy decision by the Legislature, we consider whether the State produced evidence •that Appellant possessed between 200 and 400 grams of cocaine sufficient to survive a motion for judgment of acquittal.” Greenwade,
First, the district court concluded that the rule delineated in Ross, Safford, and Sheridan “creates an untenable distinction between cases involving multiple packages of suspicious white powder and cases involving just one package.” Greenwade,
if in this case Detective Bishop had fоund one large plastic bagful of powder inside the green bag Appellant led him to, there would be no question that testing a sample and weighing the powder would yield sufficient evidence to prove Appellant possessed more than 200 grams of cocaine or a mixture of cocaine.*219 But take that same bagful of powder and split it into nine small saleable packets, and [Ross and its progeny] hold that to prove the weight element of trafficking, the State now must test a sample from each packet, determine which contain cocaine, and weigh only those — even if presumptive field testing detects cocaine in every packet ... and other circumstances, such as the way the packets are bundled together [] or an admission by the defendant [] would permit a jury to reasonably infer all the packets contain an illegal substance.
Id. (citations omitted).
Second, the district court recognized that the rationale behind requiring each individual packet of white powder to be chemically tested is to prevent law enforcement frоm combining and weighing the contents of bags that are similar in appearance, but do not contain controlled substances, with bags that do contain controlled substances. Id. at 374. Unpersuaded by this rationale, the First District reasoned that this Court’s interpretation of legislative policy in Yu warranted the development of a new standard to evaluate whether the State may commingle bags that are suspected to contain a controlled substance before chemically testing the aggregate for the presence of that controlled substance. Id. Specifically, the district court held:
Th[e legislative] policy [delineated in Yu ], we believe, legitimizes the practice of commingling multiple packets for chemical testing and weighing, where the circumstances attending the discovery and seizure of the packets permit the reasonable conclusion that they contained contraband, and perhaps other substances, to be used in illegal drug distribution.
Id.
Under this standard, the First District concluded that the contents of the nine individually wrapped baggies were properly commingled before they were chemically tested and. weighed due to the following circumstances that surrounded the discovery of the bаgs: (1) Greenwade told Detective Bishop that “What you are looking for is in the garagé”; (2) a green bag was located inside the garage which contained nine individually wrapped baggies of white powder; (3) Greenwade admitted that the green bag contained cocaine; (4) on top of the green bag was a spoon with a white powder residue on it; (5) on the table next to the green bag was a digital scale; and (6) all nine baggies were field tested. Id. This evidence, the First District concluded, together with the fact that the commingled powder tested positive for cocaine, was sufficient for the jury to find that Green-wade possessed more than 200 grams of cocaine. Id.
Consequently, the First District affirmed Greenwade’s conviction for trafficking in cocaine and certified conflict with Ross, Safford, and Sheridan “to the extent those cases hold that the. lab’s failure to test each package before commingling to determine weight renders insufficient the State’s evidence of trafficking, notwithstanding other circumstantial evidence of the offense.” Id..
ANALYSIS
Greenwade was convicted under section 893.135(l)(b)l., Florida Statutes (2009), which provides:
Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in s. 893.03(2)(a)4., or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture,*220 commits a felony of the first degree, which felony shall be known as “trafficking in cocaine,” ... If the quantity involved:
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b. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 7 years, and the defendant shall be ordered to pay a fine of $100,000.
To support a conviction for trafficking in cocaine in an amount greater than 200 but less than 400 grams, the State must prove three essential elements beyond a reasonable doubt: (1) the defendant knowingly sold, purchased, manufactured, brought into the state, or actively or constructively possessed a certain substance; (2) the substance was cocaine; and (3) the quantity of the substance met the statutory weight threshold. Hernandez v. State,
Greenwade does not disputе that the State has established the first two' elements of trafficking, as he admits that he was in possession of cocaine. Rather, Greenwade contends that the trial court should have granted his motion for judgment of acquittal and entered judgment in his favor on the trafficking charge because the State combined, tested, and weighed the contents of the nine baggies found in his possession together before and instead of chemically testing each individual baggie for cocaine before commingling and weighing their total contents in the aggregate. Consequently, the issue before the Court today is whether the State’s failure to independently chemically test each individually wrapped baggie of off-white powder rendered the State’s evidence in support of the third element of weight insufficient as a matter of law.
Standard of Review
The rule of law in Florida is clear that the State is required to prove each and every element of the offense charged beyond a reasonable doubt to establish a prima facie case. See Baugh v. State,
The Law in Florida
The line of Florida cases relevant to the conflict issue effectively began in 1988 with the decision of the Third District in Ross. In Ross, two officers observed the defendant throw a brown paper bag to the ground and then walk away, only to return shortly thereafter to pick the bag up, place something in it, and then throw it back to the ground again.
The defendant was charged with trafficking in cocaine under section 893.135(l)(b), Florida Statutes (1985). Id. After the evidence was presented during trial, the defendant moved for a judgment of acquittal, alleging that the State had failed to establish that the defendant was in possession of twenty-eight grams or more of cocaine — an essential element of the crime. Id. at 1239. The trial court denied the motion, and the jury subsequently convicted the defendant of trafficking. Id.
On appeal, the Third District reversed the defendant’s conviction,- holding that to sustain a cocaine trafficking conviction it is essential that each packet of white powder be individually chemically tested and found to contain cocaine, and that the total weight of the material in the tested packets equal or exceed the requisite statutory weight. Id. The Third District further concluded that only a visual examination of untested packets was insufficient to convict a defendant of trafficking because visual examination dоes not establish that the substance contained within an individual packet is cocaine. Id. The district court reasoned that simply because one or two packets containing cocaine are found amongst other packets containing a similar-looking white powder is no assurance that the latter untested packets also contain cocaine because: (1) the white powder contained within each individual packet may be any one of a vast variety of other white powdery chemical compounds not containing cocaine; and (2) the material in the untested packets was intentionally separated from the material in the tested packets. Id. at 1239-40.
The district court did recognize other case law which allows random positive testing of one allegedly illegal pill commingled in a single packet that contains other similar-looking pills, or the random positive testing of a substance suspected to be marijuana commingled in a single bag that contains similar-looking material, to demonstrate that the entire packet or bag contains illegal pills or marijuana. However, the district court distinguished those cases from the random testing of only one of many individually wrapped packets of a substance suspected to be powdered cocaine. Id. at 1240. The court reasoned that when suspected drugs are taken from a single package — i.e., which have been commingled by the defendant — it is a fair inference that the remaining similar-looking commingled material is chemically identical to the random positive sample. However, the same inference cannot be made where the untested material has not been commingled with the random sample by the defendant, but is contained in a separately wrapped package from which a random sample is not tested. Id. Consequently, the Third District limited the principle of law to require independent
Based on the above analysis, the Third District concluded that the State had failed to presеnt sufficient evidence to submit the question of whether the defendant was guilty of trafficking in cocaine to the jury. Id. at 1240-41. Specifically, the court noted
the fact that [the forensic chemist] broke open all of the above ninety-two [] packets, poured their contents into two envelopes, and thereby created two separate packets containing a mixture of cocaine weighing 38.8 grams cannot satisfy the [S]tate’s burden of proof on this issue. Obviously, the [S]tate’s representative cannot himself make his own packets of cocaine by combining separately wrapped packets of tested and untested material which in the aggregate weigh [the requisite statutory weight] or more; the packets which he tests and weighs must be the packets as seized from the defendant.
Id. at 1241. Consequently, the Third District reversed the defendant’s conviction and remanded the case to the trial court with directions to reduce the conviction to simple possession of cocaine. Id.
After Ross, the cases in this area have primarily followed two paths. Almost every case that has addrеssed the issue of whether the State is required to individually chemically test white powdery substances discovered in separate containers has adopted the rule articulated in Ross. These cases have not limited Ross’s application to only cocaine, but have expanded the principle of law to other controlled substances, such as heroin and methamphetamine, that share a similar powdery appearance. A second line of cases represented by a relatively small number of cases recognizes the rule in Ross, but has determined the rule to be distinguishable based on the character of the controlled substance involved.
Cases That Have Adopted Ross
In each case that has adopted Ross as controlling, a suspected controlled substance was found in at least two individually wrapped packets. Those packets were commingled before each separate package was individually chemically tested. In all of these cases except one, the appellate court has relied upon Ross to hold that the State failed to present sufficient evidence to support the essential element of weight.
For example, in Safford, the evidence at trial demonstrated that the defendant possessed two bags that were seized from his home. Safford,
In Sheridan, the defendant was arrested and charged with trafficking in an amount greater than fourteen grams of methamphetamine after two baggies allegedly containing the controlled substance were seized from the defendant’s vehicle. Sheridan,
The substance found by the detective was a powdery material, according to State testimony, similar in appearance to other noncontrolled substances, such as vitamin powder or flour. Therefore, the contents of each baggie should have been tested separately, and, if found to be the same controlled substance, the weights combined. As the State bears the burden of proof as to the amount, it is inappropriate to permit the State to commingle ... the contents without testing and then assert that the contents of each baggie when aggregated meet the trafficking quantity.... The State’s procedure created an assumption as' to the amount without the necessary proof. Thus, the evidence of trafficking was legally insufficient and should not have gone to the jury.
Id. (footnote omitted). Based on this analysis, the district court held that the State, by commingling the contents of the packets before chemically testing each packet individually, failed to establish that the defendant possessed a sufficient amount of methamphetamine to satisfy the statutory threshold for trafficking. Id. at 641.
Safford and Sheridan are only two examples of the numerous cases that have adopted Ross in nearly every circumstance in which the State has commingled individually wrapped containers of white powder before chemically testing each container independently. See, e.g., Jackson v. State,
In Mosley v. State, the defendant was arrested and charged with trafficking in cocaine following a drug transaction with a confidential informant.
based on the unique circumstances of this case[,] the State presented sufficient evidence of the requisite statutory weight for trafficking. The State’s expert chemist not only testified that the aggregate substance weighed 55.3 grams and contained cocaine, he also testified that he tested each individual empty baggie, and each contained traces of co~ caine. Accordingly, from this evidence, viewed in a light most favorable to' the State, a jury may reasonably infer that the individual substances constituted eo-caine and the aggregate weight of the substances met the requisite weight to support a trafficking conviction.
Id. (citation omitted). Although factually distinguishable from Ross, the court in Mosley advised that the better, evidentiary practice is to first test the substance of each bag before commingling the individual containers. Id. The evidence in the present case does not replicate the evidence in Mosley.
The application of Ross has not been limited to direct appeals where defendants have challenged the trial court’s- failure to grant a motion for judgment of acquittal. Some defendants have successfully asserted ineffective assistance of counsel claims upon alleging and proving that trial counsel failed to challenge the State’s procedure of collecting and testing evidence in accordance with the requirements of Ross. For example, in Bellizia v. Florida Department of Corrections,
The defendant filed a habeas petition in federal district court alleging that his state trial counsel performed ineffectively by failing to move for a judgmеnt of acquittal on the basis that the State failed to prove that he possessed the requisite statutory weight of heroin. See id. The federal district court agreed and found that Bellizia’s counsel was ineffective for failing to challenge the State’s testing procedures under Ross. Id. The Eleventh Circuit Court of Appeals affirmed, stating that “Ross sets out the controlling bright-line rule that the State must test each separately wrapped package that is suspected of containing controlled substances in order to establish the identity and weight of the controlled substance.” Id. at 1330. Consequently, the Eleventh Circuit concluded:
*225 In this case, the district court made factual findings that the substance, inside the separately wrapped pellets . was “akin to powder drugs,” and thus Ross mandated that the State was required to test each of the individually-wrapped pellets in order to meet its burden of proof as to the identity and weight of the alleged heroin. It is undisputed that the State failed to do so. Nonetheless [the defendant] was convicted for possessing 28.1 grams of heroin and sentenced to a mandatory minimum term of imprisonment twenty-two years greater than the mandatory minimum sentence of three years that he would have received based upon the weight of the one and only pellet that was actually weighed.
Ross had been the controlling law for many years on the precise issue that [the defendant’s] counsel faced. The district court did not err in concluding that “[n]o competent counsel — that is, no counsel that was aware of the law— would have failed to argue that the weight of the heroin allegedly possessed by [the defendant] was illegally calculated.” Based on this record, we cannot say that this determination was wrong.
Id. (footnote omitted); see also Purvis v. State,
Cases That Have Not. Applied or Have Distinguished Ross
Less than a year after Ross, a defendant was convicted of trafficking in cocaine after police discovered the defendant with 139 small plastic baggies of rock cocaine. Bond v. State,
The gravamen of Róss was its recognition that a variety of powdery white substances resemble cocaine in powder form. Rock cocaine, however, more closely resembles pills than powder. Asmer v. State,416 So.2d 485 (Fla. 4th DCA 1982). Asmer and Ross approve the random testing of commingled pills. Thus, we hold that Ross does not mandate the testing of each rock of cocaine.
Id.; see also Collins v. State,
In Pama v. State, customs agents stopped and boarded a fishing boat near Everglades City.
On appeal, the district court concluded that the State presented sufficient evidence to establish that all 234 bales contained marijuana, stating that:
It is not necessary for the [Sjtate to prove the identification of marijuana by chemical or scientific means.... [Rather,] [t]he [S]tate may prove the identity of a controlled substance by circumstantial evidence such as the substance’s appearance, odor, and packaging, by the circumstances under which the substance was seized, the manner by which the substance was being transported, a person’s on-the-scene remarks identifying the substance and circumstances surrounding the sale or use of the substance.
Id. at 311 (citations omitted). Having determined that the State provided sufficient proof that the 234 bales contained marijuana, the district court addressed whether the State presented sufficient evidence to satisfy the statutory threshold of weight. Id. The court concluded that, based on the average weight of the three measured bales, the State could not establish that the defendants possessed more than 10,000 pounds of marijuana. Id. at 311-12. As a result, the court reversed the defendants conviction for trafficking in more than 10,-000 pounds, but held that the State had established the defendants were guilty of the lesser included offense of trafficking between 2,000 and 10,000 pounds. Id. at 312. The defendants asserted that the district court should apply Ross and hold that when marijuana is separately packaged, an examination of only some of those packages is insufficient to prove that all of those packаges contain marijuana. Id. The district court refused to apply Ross, stating:
We decline to interpret this dicta [from Ross ] to mean that in all cases all packages must be examined. Instead, the lack of visual examination should be just one factor considered when determining the sufficiency of the evidence regarding the identification of marijuana. There may be cases, as here, where the circumstantial evidence is sufficient so that it would be unnecessary to require law enforcement to examine all packages.
Id. (emphasis supplied).
Finally, in Lyons v. State, the defendant was convicted of trafficking in cocaine in an amount greater than 400 grams after two bricks of powdered cocaine were discovered in the defendant’s car during a traffic stop.
The Lyons court recognized that the rule delineated in Ross was relevant, but concluded that it was distinguishable primarily because the size of the nearly identical bricks, which weighed over double the statutory threshold, was enough for a jury to reasonably find that one of the two nearly identical bricks contained at least 400 grams of a substance containing cocaine.- Id. at 711. As a result, the district court upheld the defendant’s conviction for
In sum, the two different lines of case law described above provide a comprehensive history of how the, rule originally delineated in Ross has either been applied or materially distinguished. In virtually all cases in which law enforcement have encountered a defendant in possession of multiple individually wrapped packets of white powder suspected to be a controlled substance, but failed to independently chemically test each individual packet, both state and federal courts have held that the defendant’s motion for judgment of acquittal should have been, or was properly/granted on the basis that the State failed to meet its burden to prove the essential element of weight. The application of Ross has not been limited to only substances suspected to be cocaine, but has also been extended to other drugs that share a similar white powdery appearance, such as heroin and methamphetamine.
Conversely, when the chemical composition and structure of the substance at issue differs from a white powder — e.g., marijuana or crack cocaine — courts have almost universally not applied Ross and have allowed the State to prove the weight and identity of a substance with circumstantial evidence. Before the decision under review was issued, Lyons was the only case that allowed the State to use circumstantial evidence to prove the identity and weight of a white powdery substance suspected to be cocaine.
The decision of the First District below falls outside of this consistent line of case law and holds that the Legislature’s pоlicy reason for penalizing possession of mixtures or compounds containing cocaine articulated in Yu “legitimizes” the practice of commingling and weighing the contents of multiple packets of white powder before chemical testing. See Greenwade,
The legislature reasonably could have concluded that a mixture containing cocaine could be distributed to a greater number of people than the same amount of undiluted cocaine and thus could pose a greater potential for harm to the public.
Id. at 765 (emphasis supplied). The decision below makes no mention of Yu’s constitutional posture, despite relying almost entirely upon Yu and this purported “policy decision by the [Legislature” to justify its adoption of the totality of the circumstances approach. See Greenwade,
This Case
We believe the decision in Ross was well reasoned, and we adopt its analysis here. Courts across Florida have al
It is a basic rule of statutory construction that statutes that are penal in nature must be strictly construed, and the conduct of the accused must fall plainly and unmistakably within the criminal statute to justify a conviction. Nell v. State,
It is equally apparent that the Legislature specifically intended to punish the distribution of counterfeit and look-alike substances less harshly. See § 831.31, Fla. Stat. (2009); § 817.563, Fla. Stat. (2009). Under section 817.563:
It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance.
§ 817.563, Fla. Stat. (2009). While section 831.31(1) provides:
It is unlawful for any person to sell, manufacture, or deliver, or to possess with intent to sell, manufacture, or deliver, a counterfeit controlled substance.[5 ]
§ 831.31(1), Fla. Stat. (2009). Violators of these sections may face a range of criminal charges from a second-degree misdemean- or to a third-degree felony. See § 831.31, Fla. Stat.; § 817.563, Fla. Stat. A second-degree misdemeanor is punishable by a maximum of sixty days’ imprisonment and a $500 fine, while a third-degree felony is punishable by a maximum of five years’ imprisonment and a $5,000 fine. See §§ 775.082-83, Fla. Stat. (2009).
Thus, even if the Legislature’s intent was to stunt illegal drug distribution by punishing mixtures of controlled substances, the language of the statutes also demonstrates that the Legislature consciously decided to define and punish the
The plain language and structure of these statutes demonstrate that the Legislature clearly intended to provide for distinct crimes and substantially different punishments for different types of substances. To effectuate the legislative intent, we hold that to establish beyond a reasonable doubt that individually wrapped packets of white powder meet the statutory threshold for weight in trafficking prosecutions, the State must chemically prove that each individually wrapped'packet contains at least a mixture of a controlled substance before it may combine the contents and determine whether those contents meet the statutory threshold for weight. This rule is consistent with both the legislative intent of these statutes and good policy which demonstrates that the benefits of independent testing substantially outweigh the burden of requiring the State to chemically test each individual packet.
While we hold that the State must chemically test every individually wrapped packet of white powder seized in order to establish the statutory threshold weight for trafficking, we emphasize that this rule only applies when the substance discovered is one that poses an identifiable danger of misidentification, such as the white powder discovered in this case. If the chemical composition of the substance seized does not pose a danger of misidentification,the State is not required to chemically test individually wrapped packets in order to establish the requisite statutory weight for trafficking. See Bond,
First, Pama is distinguishable from this case because Pama specifically addressed the State’s ability to prove the identity and weight of marijuana. See Pama,
Second, even if we were to assume that Pama stands for the proposition that thе State may commingle the contents of individually wrapped packets of white powder and rely upon circumstantial evidence to prove that the commingled substances satisfy the statutory weight threshold for trafficking, the holding in Pama was effectively overruled by Safford, Sheridan, and Mosley. All four cases were issued by the Second District; however, the latter three were decided after Pama and have taken the exact opposite position on commingling individually wrapped packets of powder. In other words, if Pama stands for the principle of law the State alleges, the case is no longer good law because Safford, Sheridan, and Mosley supersede it. The current position of the Second District on this issue is that the State cannot commingle the contents of individually wrapped packets of white powder without first chemically testing each packet independently. Accordingly, we decline to adopt the position of the State based on Pama.
Furthermore, we find the factual circumstances of Lyons to be distinguishable from the facts here. In Lyons, the State could have satisfied its burden to prove beyond a reasonable doubt that the defendant possessed a controlled substance in an amount greater than the statutory weight threshold for trafficking without commingling the contents of the two bricks discovered. See Lyons,
CONCLUSION
Based on the foregoing,, we hold that to satisfy the burden of proving that the evidence seized meets the statutory threshold for weight in trafficking prosecutions beyond a reasonable doubt, the State must prove through chemical testing that each individually wrapped packet of white powder seized contains at least a mixture of a controlled substance before the State may
It is so ordered.
Notes
. Although Greenwade admitted that the green bag contained cocaine, he did not admit that each of the baggies in the, larger bag contained cocaine.
. Miranda v. Arizona,
. There is no evidence in the record indicating whether each of the nine baggies field tested positive for cocaine. Detective Bishop testified that he field tested every baggie, but neither the prosecutor nor defense сounsel asked Detective Bishop for the results of the field testing. Despite this lack of evidence, the district court’s analysis appears to assume that the results of the field testing were positive. See Greenwade,
. Neither the record nor the decision below indicates when the contents of the nine énvel-opes were combined and transferred into the Ziploc bag. Detective Bishop testified during trial that once the nine baggies of cocaine were taken to the property room they were separated into nine separate envelopes. He also testified that it was standard procedure to put all of the powder seized from a single arrest together for testing purposes. However, Detective Bishop did not indicate when the nine envelopes of off-white powder were combined into the one Ziploc bag. Dr. War-niment testified that she did not know whether the nine envelopes individually contained cocaine because she received one bulk container of off-white powder. She testified that "if a number of different bags of powder were dumped together, I would not be able to determine whether all of them were of exactly the same composition.”
. A "counterfeit controlled substance” is defined by section 831.31(2)(a), Florida Statutes (2009), as:
A controlled substance named or described in [section] 893.03 which, or the container or labeling of which, without authorization bears the trademark, trade name, or other identifying mark, imprint, or number, or any likeness thereof, of a manufacturer other than the person who in fact manufactured the controlled substance: or
(b) Any substance which is falsely identified as a controlled substance named or described in [section] 893.03.
. This point was directly illustrated at Green-wade’s trial. Dr. Warniment, the forensic chemist who examined the commingled packets of white powder in this case, testified that because she received one commingled packet of powder she could not "speak to the individual bags, if they existed[,]” and that "if a number of different bags of powder were dumped together, I would not be able to determine whether аll of them were of exactly the same composition.”
Dissenting Opinion
dissenting.
Because I conclude that a rational jury could decide that the evidence presented established beyond a reasonable doubt that Greenwade was guilty of the cocaine trafficking offense for which he was convicted, I dissent. I would approve the decision of the First District Court on review and disapprove Ross v. State,
The majority decides that there was no basis for a rational jury to conclude beyond a reasonable doubt that the green bag — which Greenwade conceded contained cocaine — did not contain some baggies with counterfeit cocaine. In doing so, the majority fails to adhere to the rule that a motion for a judgment of acquittal should not be granted “unless the evidence is such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law” and that the determination of the jury must prevail if “there is room for a difference of opinion between reasonable [people] ... as to the inferences which might be drawn from conceded facts.” Lynch v. State,
I would follow this rule and adopt the reasoning of Chief Judge Schwartz’s dissent in Ross. Ross,
Here, the jury’s determination is further supported by Greenwade’s unqualified admission that the green bag contained cocaine. It was reasonable for the jury to infer that the green bag did not contain baggies of counterfeit cocaine intermingled with baggies of genuine cocaine when the defendant stated to law enforcement simply that the bag contained cocaine. The majority’s curt dismissal of the significance of this admission defies “the common sense understanding that an unqualified statement lacks qualifications.” United States v. Frankson,
Greenwade’s cocaine trafficking conviction should not be disturbed.
POLSTON, C.J., concurs.