FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2122
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JEFFREY R. NOLLEY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Santa Rosa County.
David Rimmer, Judge.
February 9, 2018
LEWIS, J.
Appellant, Jeffrey R. Nolley, appeals his convictions and
sentences for trafficking in methamphetamine, unlawful
possession of pseudoephedrine, possession of cannabis, and
possession of drug paraphernalia and raises three issues, only two
of which merit discussion. Appellant argues that the trial court
erred by denying his motion for judgment of acquittal as to the
trafficking count because the evidence was insufficient to establish
constructive possession. Appellant further contends that
fundamental error occurred when the detective gave opinion
testimony about his guilt; or, in the alternative, defense counsel
rendered ineffective assistance that is apparent on the face of the
record by failing to challenge the testimony. For the reasons that
follow, we disagree and, therefore, affirm.
Facts
Appellant was charged with trafficking in amphetamine or
methamphetamine (28 grams or more, but less than 200 grams)
(Count 1); unlawful possession of pseudoephedrine (Count 2);
possession of cannabis (less than 20 grams) (Count 3); possession
of drug paraphernalia (Count 4); and possession of the prescription
drug Cyclobenzaprine without prescription (Count 5). Count 5 was
nolle prossed.
The evidence at trial established that Appellant lived in a one-
room garage apartment on Richard Thomley’s property. Thomley,
who lived in the main residence, had partitioned off a room in his
detached garage, which was located in the back of his fenced
property. The apartment was small, about fifteen by fifteen feet,
and was separated from the rest of the garage by a door. Appellant
lived in the apartment by himself from July 2015 until his arrest
in March 2016, but often had visitors. After finding his garage
filled with smoke and emitting a strong smell on several occasions,
Thomley informed Detective Jerry Nash that he suspected
Appellant was making methamphetamine in the apartment and
that one of the people who was visiting the apartment was Joshua
Scott. To corroborate the information Thomley provided, Nash
checked Appellant’s purchases of pseudoephedrine, as compiled by
the National Precursor Log Exchange (“NPLEx”). The NPLEx
records showed that Appellant made seven purchases between
December 2015 and March 2016, which, Sergeant Blake Weekley
testified, is excessive and explains why an eighth purchase was
blocked.
Nash searched the dumpster that was located on the county
right-of-way, just outside of Thomley’s gate and near the garage,
and that served Thomley’s and his son’s residences. The dumpster
contained receipts for Appellant’s purchases of an instant cold
pack, plastic tubing, and lithium batteries and Scott’s purchase of
pseudoephedrine, which, Nash testified at trial, are all items used
in manufacturing methamphetamine. Nash also searched a burn
pile that was located near the garage apartment and inside the
fenced property, and in it he found burned batteries with the tops
cut off, burned blister packs, and a Coleman fuel can, which, Nash
testified, were also items used in manufacturing
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methamphetamine. Thomley testified that he never burned
anything in the burn pile.
Subsequently, the police set up surveillance at Appellant’s
apartment and observed him arriving with Scott and Amy
Thompson. The only thing they carried into the apartment was
Thompson’s purse. After about five minutes, the police did a
“knock and talk.” The only people inside the apartment were
Appellant, Scott, and Thompson. Upon learning that Appellant
had pseudoephedrine on his person, Nash arrested him. During
the ensuing search, Nash found in Appellant’s pockets a pipe that
was used to smoke methamphetamine and a box of Sudafed along
with Scott’s receipt for it. Nash testified that Sudafed contains
pseudoephedrine, which is the main ingredient in manufacturing
methamphetamine, and that it is common for people who
manufacture methamphetamine to have Sudafed purchased by
others because one is allowed to purchase only so many boxes in a
month.
After Appellant’s arrest, his apartment was secured and
searched pursuant to a warrant. The police found in the one-room
apartment numerous items consistent with a meth lab, including
a hydrogen chloride gas generator and a one-pot cook vessel under
the bathroom sink, fourteen one-pot cook jugs, nine additional
hydrogen chloride gas generators, three empty Coleman fuel
containers, three empty Drano containers, plastic tubing, salt,
pealed lithium battery casings, empty pseudoephedrine boxes and
blister packs, empty ice compression boxes, a glass pipe used to
smoke methamphetamine, empty lighter fluid containers, a receipt
for pseudoephedrine, coffee filters with chemical residue, and an
empty Voss water bottle. Most of the items were found in heavy-
duty garbage bags that also contained regular household garbage
and a receipt with Appellant’s name. Marijuana was found on the
dresser and inside a backpack that also contained mail belonging
to Appellant. There was no doubt in Weekley’s mind that the items
found in Appellant’s apartment were remnants of a meth lab.
Thomley testified that none of the items found in the apartment
belonged to him. The liquid from the one-pot vessel was tested and
contained about ninety-three grams of methamphetamine.
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Most of the items were hazardous material that had to be
destroyed because they are so corrosive that they eat through the
bottles and continue to produce gas. Weekley testified that the
bottles had been sitting for some time because it would have taken
at least a week or two for the amount of deterioration observed on
some of them to occur. Nash explained that the liquid from the
one-pot vessel was placed into a glass jar, then into a plastic
container, and then into a paint can for safekeeping because, as
could be seen in the pictures, it eats through the bottles,
deteriorates the glass container lids, and leaks out.
In cross-examining Nash, defense counsel called into question
the police investigation in part by eliciting testimony that Scott
was let go even though a pipe was found on his person, he was on
the run with warrants, and he was not charged with trafficking
methamphetamine (though he was charged with distribution of a
listed chemical) and that Thompson likewise was not arrested. In
turn, the State elicited the following testimony on redirect without
objection:
[STATE]: And you were also asked about Joshua
Scott. He was not arrested on that date, is that correct?
[NASH]: Correct.
[STATE]: Why is that?
[NASH]: I try and go after the meth cook, not the
people buying the boxes of Sudafed. And from the
information gathered that night that is what Mr. Scott
was. Mr. Scott was arrested at a later date.
[STATE]: So based on your investigation along with
the information you obtained at the residence did you
make a determination, as to who was cooking
methamphetamine at that apartment?
[NASH]: Yes, sir.
[STATE]: And who was it?
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[NASH]: [Appellant].
In moving for a judgment of acquittal on Count 1, Appellant
argued that the State failed to meet its burden with regard to the
elements of dominion, control, and knowledge so as to prove
constructive possession of the one-pot vessel. The trial court
denied the motion.
Appellant’s mother and sister testified that weeks before
Appellant’s arrest, Thomley was remodeling his house and had
contractors on his property. Appellant’s mother further testified
that Thomley frequently had visitors at his home and that
Appellant’s apartment was lockable only from the inside and, to
her knowledge, he did not have the key to it in case he got locked
out and the door remained unlocked during the day while he was
at work. However, she never saw anyone enter Appellant’s
apartment and take garbage bags inside it.
During closing argument, defense counsel contended that the
government failed to meet its burden and threw everything
against the wall to see what stuck, and argued, “[Nash] wasn’t
even going to tell you that Josh Scott was on the run unless I asked
him. He wasn’t going to tell you that they let him go. He wasn’t
going to tell you that Amy Thompson was there. They let her go, if
I hadn’t asked him.” During rebuttal closing, the State responded
in part, “What did Detective Nash tell you why he did not arrest
Mr. Scott on that day? Because he was focused on the cook. The
one in possession [of] over 28 grams of methamphetamine on that
day. That’s [Appellant].” Appellant was convicted of the charged
offenses, and this appeal followed.
Analysis
Denial of Motion for Judgment of Acquittal
An appellate court reviews a trial court’s denial of a motion
for judgment of acquittal de novo to determine whether the
evidence is legally sufficient to sustain a conviction; in doing so,
the court must consider the evidence and all reasonable inferences
therefrom in a light most favorable to the State. Kemp v. State,
166 So. 3d 213, 216 (Fla. 1st DCA 2015). In a case where the State
submitted some direct evidence, the denial of a motion for
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judgment of acquittal will be affirmed if it is supported by
competent and substantial record evidence. McWatters v. State,
36
So. 3d 613, 631 (Fla. 2010). *
To prove that Appellant committed the crime of trafficking in
methamphetamine, the State had to prove that: (1) he knowingly
possessed or manufactured a certain substance; (2) the substance
was methamphetamine or a mixture containing
methamphetamine; and (3) the methamphetamine or mixture
containing it weighed fourteen grams or more. See § 893.135(1)(f),
Fla. Stat. (2016); Fla. Std. Jury Instr. (Crim.) 25.13(a). Possession
may be actual or constructive. Evans v. State,
32 So. 3d 188, 189
(Fla. 1st DCA 2010); see also § 893.135, Fla. Stat.; Fla. Std. Jury
Instr. (Crim.) 25.13(a). Constructive possession exists when the
defendant knows of the presence of the contraband and can
maintain dominion and control over it. Evans,
32 So. 3d at 189;
see also Fla. Std. Jury Instr. (Crim.) 25.13(a). When a defendant
is in exclusive possession of the premises where the contraband is
found, his knowledge of the presence of the contraband and his
power and intent to control the contraband may be inferred. See
Smith v. State,
125 So. 3d 359, 361 (Fla. 1st DCA 2013); Mitchell
v. State,
958 So. 2d 496, 499 (Fla. 4th DCA 2007); see also Fla. Std.
Jury Instr. (Crim.) 25.13(a). On the other hand, when the premises
where the contraband is found are in joint possession, the State
must establish the knowledge and ability to maintain dominion
and control elements by independent proof. Evans,
32 So. 3d at
190; see also Fla. Std. Jury Instr. (Crim.) 25.13(a). The
independent proof may be evidence establishing that the
defendant had actual knowledge of the presence of the contraband
in the place where it was found or circumstantial evidence from
which a jury might properly infer that the defendant had
knowledge of the presence of the contraband. Evans,
32 So. 3d at
190.
The parties disagree about whether this case involved joint or
exclusive possession of the premises. To recap, the undisputed
evidence showed that Appellant was the sole resident of the
* Appellant did not argue in the trial court, or on appeal, that
the circumstantial evidence standard applies.
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apartment; the police observed Appellant, Scott, and Thompson
arriving together at the apartment about five minutes prior to the
“knock and talk,” and the only thing they carried inside was
Thompson’s purse; and meth oil is highly corrosive, and some of
the bottles in the apartment were so corroded that it would have
taken at least a week or two for such damage to occur, making it
highly unlikely that the meth oil was carried inside the purse and
into the apartment. Based on these facts, viewed in the light most
favorable to the State, we find persuasive the State’s argument
that this is an exclusive possession of premises case, making it
proper to infer Appellant’s knowledge of the presence of the
contraband and his ability to control it.
We further find that even if this were a joint possession of
premises case, the State presented independent proof of the
knowledge and ability to control elements. In addition to the
aforementioned evidence, Appellant’s small, one-room apartment
was filled with items consistent with a meth lab, including the one-
pot cook vessel, fourteen one-pot cook jugs, ten hydrogen chloride
gas generators, three empty Coleman fuel containers, three empty
Drano containers, plastic tubing, salt, pealed lithium battery
casings, empty pseudoephedrine boxes and blister packs, empty ice
compression boxes, a glass pipe used to smoke meth, empty lighter
fluid containers, a receipt for pseudoephedrine, and coffee filters
with chemical residue. Most of the items were located inside
garbage bags that also contained household trash and a receipt
with Appellant’s name. Thomley testified that none of the items
in Appellant’s apartment belonged to him and he never went inside
the apartment. There was no evidence of anyone entering and
taking the garbage bags into Appellant’s apartment. The evidence
further showed that Appellant had made extensive
pseudoephedrine purchases; Thomley suspected he was making
meth in the apartment due to the smell and smoke; and, at the
time of his arrest, Appellant was in actual possession of a meth
pipe and the box of Sudafed Scott had purchased for him. There
was simply no evidence to suggest that Appellant did not have
knowledge or control over the meth oil or the items that were used
to manufacture it. Therefore, the trial court did not err in denying
Appellant’s motion for judgment of acquittal.
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Detective’s Opinion Testimony about Appellant’s Guilt
A witness’s opinion about the guilt or innocence of the
defendant is inadmissible pursuant to section 90.403, Florida
Statutes, which excludes relevant evidence when its probative
value is substantially outweighed by unfair prejudice. Martinez v.
State,
761 So. 2d 1074, 1079 (Fla. 2000) (explaining that “there is
an increased danger of prejudice when the investigating officer is
allowed to express his or her opinion about the defendant’s guilt”
because it “could convey the impression that evidence not
presented to the jury, but known to the investigating officer,
supports the charges against the defendant”). When the error is
preserved, opinion testimony about the defendant’s guilt is subject
to the harmless error analysis.
Id. at 1081. When the error is not
preserved, the fundamental error analysis applies, whereby an
error is deemed fundamental only in the rare case where it reaches
down into the validity of the trial to the extent that a guilty verdict
could not have been obtained without its assistance. Sheppard v.
State,
151 So. 3d 1154, 1166 (Fla. 2014).
Here, Detective Nash’s testimony that he tries to go after the
meth cook, not the person buying the Sudafed, and that the
information gathered indicated that Scott was the buyer of
Sudafed, was not erroneous. That testimony was offered on
redirect examination merely to explain why Scott was not arrested
on the same day as Appellant, and the defense had opened the door
to the explanation during cross-examination by calling into
question the police investigation and eliciting testimony that Scott
was let go even though a pipe was found on him, he was on the run
with warrants, and he was not charged with trafficking
methamphetamine. See Rolle v. State,
215 So. 3d 75, 77-79 (Fla.
3d DCA 2016) (finding no merit in the appellant’s argument that
the detective improperly commented on his guilt by testifying that
he determined based on his investigation that Ajuste was not
involved in the crime because the detective was simply explaining
why the police released Ajuste, and was not opining about the
appellant’s guilt, and the defense opened the door to the
explanation by arguing that the police arrested the wrong person
and let the actual perpetrator, Ajuste, go free). But the State did
not stop there.
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The State then elicited testimony from Nash that based on his
investigation and the information obtained at the residence, he
determined it was Appellant who was cooking methamphetamine
in the apartment. Nash’s opinion testimony about Appellant’s
guilt was improper. See Martinez,
761 So. 2d at 1079. However,
we disagree with Appellant that the error rises to the level of
fundamental error because it does not reach down into the validity
of the trial to the extent that a guilty verdict could not have been
obtained without its assistance. The erroneous testimony was
brief, did not become the focus of the trial, and was clearly offered
to explain why Scott was not arrested on the day of Appellant’s
arrest. While the State repeated the testimony in closing, it did so
only once and only to rebut the defense’s argument that the police
investigation was inadequate and Nash was not going to tell the
jury that Scott was on the run and that he and Thompson were
both let go. Furthermore, there was ample evidence of Appellant’s
guilt, including evidence that he was the sole resident of the
apartment that contained the meth oil, dozens of items used in
manufacturing methamphetamine, and cannabis; he had made
extensive pseudoephedrine purchases; and a meth pipe and box of
Sudafed were found on his person at the time of his arrest. See
Odeh v. State,
82 So. 3d 915, 918-24 (Fla. 4th DCA 2011) (finding
that it was error for the jury to hear the officer’s statements during
the taped police interview that the appellant did not legally act in
self-defense because an officer’s opinion about the defendant’s
legal defense is tantamount to an opinion as to his guilt, but
concluding that the error was not fundamental, and declining to
find ineffective assistance of counsel on the face of the record).
We also decline Appellant’s invitation to find ineffective
assistance of counsel on the face of the record for the failure to
challenge Nash’s opinion testimony because this is not one of those
rare cases where deficient performance and prejudice are apparent
on the face of the record. See Monroe v. State,
191 So. 3d 395, 403
(Fla. 2016) (explaining that an appellate court may grant relief for
ineffective assistance of counsel on direct appeal only where
counsel’s ineffectiveness is apparent from the face of the record
and a waste of judicial resources would result from remanding the
matter for further litigation); see also Morales v. State,
170 So. 3d
63, 67 (Fla. 1st DCA 2015) (declining to find ineffective assistance
of counsel on direct appeal because such finding requires
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“ineffectiveness obvious on the face of the record, indisputable
prejudice, and an inconceivable tactical explanation for the
conduct”); Odeh,
82 So. 3d at 923-24 (explaining that a claim of
ineffective assistance of counsel generally cannot be raised for the
first time on appeal and instead must be raised in a motion for
postconviction relief).
Therefore, we affirm Appellant’s judgment and sentence
without prejudice to his raising a claim of ineffective assistance of
counsel in a motion pursuant to Florida Rule of Criminal
Procedure 3.850. See Elmore v. State,
172 So. 3d 465, 467 (Fla. 1st
DCA 2015) (affirming the appellant’s convictions and sentences
without prejudice for him to file a proper motion for postconviction
relief or a petition alleging ineffective assistance of counsel); see
also Beazley v. State,
148 So. 3d 552, 554-55 (Fla. 1st DCA 2014)
(declining to hold that ineffective assistance of counsel was
apparent on the face of the record, but noting that the appellant
could raise the issue in a motion for postconviction relief ); Wade v.
State,
812 So. 2d 600 (Fla. 1st DCA 2002) (affirming the appellant’s
conviction and sentence without prejudice to his right to raise his
claims of ineffective assistance of counsel in a rule 3.850 motion).
AFFIRMED.
OSTERHAUS and BILBREY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, Glenna Joyce Reeves, Assistant
Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.
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