Lyons v. StateLyons v. State
Following a traffic stop based on a window tint violation, officers discovered, hidden in a cereal box in a grocery bag in the back seat, two bricks of powdered cocaine, weighing together, 813.4 grams. The appellant was a passenger in the vehicle; his girlfriend was the driver. The appellant was eventually convicted in a jury trial of trafficking in cocaine in an amount in excess of 400 grams. While he raises three issues in this appeal, we find only one merits discussion.
The appellant argues that, because the cocaine was randomly tested only after the contents of the two bags were commingled, there was insufficient evidence to support his conviction for trafficking in greater than 400 grams of cocaine. Specifically, appellant notes the combined weight of the substance found in the two bags was 813.4 grams, that his trafficking conviction was for possession of 400 grams or more, but that because of the commingling, there was no way for the jury to reasonably conclude that one of the bags contained at least 400 grams of a substance containing cocaine.1
It has been found with respect to powder cocaine wrapped in separate containers, that a sample must come from each container in order to have the amount in each container included in the total alleged amount of contraband. Ross v. State, 528 So.2d 1237 (Fla. 3d DCA 1988). For rock, or crack cocaine, however, this rule against such commingling does not exist. Collins v. State, 717 So.2d 186 (Fla. 5th DCA 1998) (sufficient evidence to support conviction for trafficking of at least 28 grams of cocaine where 30 to 40 bags of crack cocaine involving total quantity of 196.5 grams were commingled into single bag for testing at lab); Bond v. State, 538 So.2d 499 (Fla. 3d DCA 1989) (“The gravaman of Ross 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“).
In Ross, the state tested only two of 92 packets containing powdered cocaine and then attempted to include the weight of the contents of all 92 packages to support
Judge Schwartz, in his dissent in Ross, found that the positive testing of two of the 92 bags, when viewed with the other evidence, such as the fact that each bag was packaged the same and appeared the same, reasonably supported the inference that each bag also likely contained a mixture of cocaine. We note in the instant case, there was testimony presented that the two bricks were of approximately the same size and were otherwise similar in appearance to one another. Given the further fact that they were hidden together in a single taped-up Cornflakes box, it would not be an unreasonable inference to make that both bricks contained mixtures of cocaine.
We find the instant case to be distinguishable from Ross.2 First, in the instant case, only two bags were involved. In Ross, the state tested only two of 92 bags. Second, in the instant case, the two bags appeared to be of the same weight and substance. Third, each was surreptitiously wrapped in a taped-up Corn Flakes box. Finally, even if only one of them did, in fact, by some oddity, contain a mixture involving cocaine, the fact that the two similar-appearing and similar-in-weight packages together weighed 816 grams, was enough for a jury to reasonably find that one of the two rather identical bricks contained at least 400 grams of a substance containing cocaine.
Appellant‘s conviction and sentence are affirmed.
AFFIRMED.
SHARP, W. and GRIFFIN, JJ., concur.