C.M. v. State

Citations: 83 So. 3d 947; 2012 Fla. App. LEXIS 4062; 2012 WL 832796Docket: No. 3D11-181

Court: District Court of Appeal of Florida; March 14, 2012; Florida; State Appellate Court

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C.M., a juvenile, was charged with possession of marijuana and possession of drug paraphernalia. After an adjudicatory hearing, the court dismissed the marijuana charge due to insufficient evidence proving the substance was marijuana, but found C.M. guilty of possessing drug paraphernalia. The dismissal stemmed from a search of C.M.'s backpack by a school police officer, who found a plastic case with a green leafy substance and an ear dropper converted into a makeshift pipe. The officer believed both items were marijuana based on their appearance and smell, but no lab test results were presented. During cross-examination, he acknowledged that synthetic marijuana resembles real marijuana and that he lacked training on synthetic varieties.

C.M. testified that the substance was synthetic marijuana called "Mr. Nice Guy," which he had bought legally and used with the ear dropper. The officer, recalled by the State, attempted to distinguish between the smells of real and synthetic marijuana but admitted limited experience with synthetic types. C.M. moved for dismissal on both charges at the close of evidence, which the court granted for the marijuana charge but convicted him for the drug paraphernalia charge.

On appeal, it was determined that to sustain the paraphernalia charge, the State needed to prove C.M. intended to use the paraphernalia for inhaling a controlled substance. Although the evidence suggested the ear dropper was drug paraphernalia, it did not establish that C.M. used it to smoke marijuana or intended to do so, given the reasonable doubt about the nature of the substance he possessed. The appellate court agreed with C.M. and reversed the conviction for possession of drug paraphernalia.

Insufficient evidence prevented establishing beyond a reasonable doubt that the substance possessed by C.M. was marijuana, and there was no evidence of intent regarding the ear dropper used to inhale a controlled substance. Although the State argued that an officer's expert testimony indicated the residue in the ear dropper was marijuana, the trial court found this testimony inadequate to prove the substance was real rather than synthetic marijuana. The State also contended that C.M.'s acquittal of marijuana possession did not bar a conviction for possession of drug paraphernalia, citing the case of Grady v. State. In Grady, the defendant was acquitted of marijuana possession but convicted of drug paraphernalia charges based on the presence of actual marijuana nearby. The court ruled that a conviction for drug paraphernalia could stand even without a conviction for the nearby controlled substance. However, the current case differed significantly, as there was no controlled substance found near C.M. or the ear dropper, negating any inference of intent to use the ear dropper for an illicit purpose. C.M. claimed to use the ear dropper for synthetic marijuana, a non-controlled substance, and this testimony created reasonable doubt, leading the trial court to determine that the evidence was insufficient to establish the presence of a controlled substance.

The evidence did not sufficiently demonstrate that the substance in C.M.'s possession was a controlled substance, nor was there evidence indicating C.M. used or intended to use the item for smoking marijuana. Consequently, the conviction for possession of drug paraphernalia was reversed, and a judgment of dismissal for that charge was ordered. The trial court permitted a school police officer to provide expert testimony regarding marijuana identification. The State recognized that synthetic marijuana does not qualify as a "controlled substance" under Florida Statutes. C.M. had previously requested a judgment of dismissal after the State's case, which was denied. Florida Statutes Section 893.146 outlines criteria for determining whether an object constitutes drug paraphernalia, including statements from the owner, proximity to violations, presence near controlled substances, residue of controlled substances, legitimate uses in the community, and expert testimony. The jury's acquittal of Grady on the marijuana charge remains unexplained, noting that multiple passengers were present in the vehicle where the marijuana was discovered.