Stinson v. State

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LARRY L. STINSON, )
)
Appellant, )
)
v. ) Case No. 2D14-4632
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed February 26, 2016.
Appeal from the Circuit Court for
Hillsborough County; Ronald N. Ficarrotta,
Judge.
Howard L. Dimmig, II, Public Defender, and
Pamela H. Izakowitz, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Gillian N. Leytham,
Assistant Attorney General, Tampa, for
Appellee.
ALTENBERND, Judge.
Larry L. Stinson appeals his judgment and sentence for delivery of
cocaine within 1000 feet of school property. We affirm but write to disclose an issue
that may warrant postconviction review.
Late on the evening of April 22, 2014, Mr. Stinson and his fiancée, Betty
Hearn, were barbecuing chicken outside Mr. Stinson's duplex in West Tampa when an
informant for the police approached Mr. Stinson to purchase cocaine as part of a sting
operation. Although the testimony is in some conflict as to the details, it is clear that the
informant eventually received a quantity of cocaine at the apartment and that Mr.
Stinson was at least a principal in the transaction. Apparently, the informant had to wait
for the cocaine to be obtained from another location before the transaction could be
completed. The informant believed that he waited up to thirty minutes for the cocaine to
arrive. The cocaine was delivered to him inside the apartment. Once the cocaine was
delivered to him, the informant went outside and took off his hat to signal the police. A
group of officers then moved in to make the arrest. They arrested Mr. Stinson and Ms.
Hearn.
Mr. Stinson lives within 1000 feet of an elementary school. The offense of
delivering cocaine carries a mandatory minimum term of incarceration of three years if
the transaction occurs within 1000 feet of a school between the hours of 6:00 a.m. and
midnight. See § 893.13(1)(c), Fla. Stat. (2014). Mr. Stinson and Ms. Hearn were both
charged with this offense (count I) and with possession of cocaine (count II). They were
represented by the same counsel and tried together.
At trial, no witness explicitly testified to the time of the transfer. It was
apparently close to midnight when the transfer finally occurred. The detective in charge
of this sting operation did not testify that he checked his watch to determine the time
when the informant came outside to tip his hat. Instead, without objection, the detective
seemingly agreed with the State's arguably leading questions that the series of events
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in question had happened "shortly before midnight." On cross examination, the
detective conceded that he did not know the exact time that he had picked up the
informant that night before they eventually traveled to the location of the sting, although
he estimated that it was approximately 8:00 p.m. Ultimately he agreed that "at some
point in time during that late evening," he brought the informant to the location of the
sting. The detective testified on direct that once they arrived, he observed the informant
approach Mr. Stinson on the porch. The informant sat with Mr. Stinson for "a little
while." Ms. Hearn approached them soon after, spoke to them briefly, and then left for
approximately ten minutes. After she returned, the detective observed her, Mr. Stinson,
and the informant go inside the duplex. After what the detective estimated to be three
minutes, the informant came outside and signaled to law enforcement that the deal was
done. The only additional testimony concerning the time of the transaction was
provided by another officer involved in the operation and the informant, who has many
felony convictions. Both of these witnesses gave affirmative answers to similar
questions by the State.
The defense moved for a judgment of acquittal on count I as to both Mr.
Stinson and Ms. Hearn. Counsel made a cursory argument that the State failed to
prove the time of the delivery "specifically" because the informant did not testify to this
fact. The trial court denied the motion and Mr. Stinson and Ms. Hearn were both found
guilty as charged. On appeal, Mr. Stinson argues that the trial court erred when it
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denied his motion for judgment of acquittal because the State presented insufficient
evidence that the delivery occurred between 6 a.m. and midnight.1
We conclude with some hesitation that the testimony concerning the time
of the transaction is enough to avoid a judgment of acquittal on delivery of cocaine
within 1000 feet of a school and to permit the jury to convict Mr. Stinson of that offense.
Our record contains no arrest records or any other evidence aside from the testimony
described above that might establish that the offense was committed before midnight.
Moreover, the State failed to take advantage of an opportunity to elicit explicit testimony
from the detective concerning the time of the offense on redirect after defense counsel
had cross-examined the detective on this point. One would expect that in a case where
experienced officers conducted a controlled purchase, other, better evidence would
exist to prove the time of the critical events.
The exact time of the transaction is very important to Mr. Stinson, who is
almost sixty years old and had never been in prison before he was sentenced in this
case. Because his prior record includes only one misdemeanor, Mr. Stinson may have
received probation or another sentence less than the prison term he received if the jury
had decided that the State failed to prove that the event occurred before midnight.
It is entirely possible that the timing of this event was not further
developed at trial by Mr. Stinson's attorney because information not admitted into
evidence made it clear that the transaction occurred prior to midnight. But if Mr. Stinson
1
Ms. Hearn also appealed her judgments and sentences and raised the
same issue as Mr. Stinson raises here. This court affirmed Ms. Hearn's judgments and
sentences in a per curiam opinion. Hearn v. State, 177 So. 3d 615 (Fla. 2d DCA 2015)
(table decision).
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files a facially sufficient postconviction motion raising this issue, it should be given
careful attention.
Affirmed.
SILBERMAN, J., Concurs.
SALARIO, J., Concurs in result only.
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