Florence v. State

SMITH, Presiding Judge,

dissenting.

I am in agreement with most of the majority’s analysis, including the rejection of Florence’s arguments that the stop was unlawful and that the cocaine did not belong to him. I cannot, however, agree with Division (1) (c) of the majority opinion, in which the majority concludes that the evidence was insufficient to prove intent to distribute. I therefore must respectfully dissent.

In finding the evidence insufficient to prove intent to distribute, the majority concedes that Sergeant Fenninger testified that the cocaine “looked like a ‘cookie,’ ” which could have been broken into 30 smaller “rocks” for distribution. The majority finds this insufficient because no evidence was presented showing either that the cocaine had been divided or that it was packaged for sale.

In doing so, the majority gives a strained interpretation to Fenninger’s testimony, finding that Fenninger testified only to his assumptions, his beliefs, and his personal practices regarding the amount of cocaine that would signify an intent to distribute. But Fenninger was an experienced officer, whose training gave him a foundation to testify regarding his practices. He had been a law enforcement officer for 18 years and a narcotics officer for 12 of those years. During the majority of those years, 95 percent of his arrests involved cocaine, of which approximately 80 percent involved intent to distribute.

Throughout the course of a rigorous cross-examination, Fenninger steadfastly maintained that in his experience, every single time he had arrested an individual in possession of a cocaine “cookie,” that individual was charged with possession with intent to distribute. He also testified clearly that he had never arrested anyone who had a cookie intended for personal use. In my view, the only inference that may be drawn from this testimony is that in this officer’s considerable experience, the amount of cocaine and its form —■ i.e., a cookie — in Florence’s possession was incompatible with personal use.

The majority is certainly correct that this was an assumption based upon Fenninger’s personal training and experience. But a proper foundation was laid for Fenninger’s testimony, and “[w]hen a proper foundation has been laid, a police officer may testify about elements of crime with which he is familiar in his experience; we have allowed such evidence concerning drug commerce. [Cit.]” Kimbrough v. State, 215 Ga. App. 303 (1) (450 SE2d 457) (1994). An officer’s opinion as to whether the amount of contraband found was for distribution or sale has been found repeatedly to be sufficient. See, e.g., Marshall v. State, 270 Ga. App. 663 (607 SE2d 258) (2004); Livingston v. State, 221 Ga. App. 630, 631 (1) (472 SE2d 163) (1996). And this is true even in cases where no drug paraphernalia, baggies, or large amounts of cash were also found. See, e.g., Barrow v. State, 269 Ga. App. 635, 636 (1) (605 SE2d 67) (2004); Howard v. State, 262 Ga. App. 198, 199 (1) (585 SE2d 164) (2003).

Decided October 20, 2006. Mark A. Hinds, for appellant. Peter J. Skandalakis, District Attorney, Gerald P Word, Bruce P. Dutcher, Assistant District Attorneys, for appellee.

Finally, I must disagree with the majority that a conviction in this case “hinges on circumstantial evidence.” Deputy Walters testified that he saw a small ball of wadded paper thrown from Florence’s car, and Deputy Hill found the cocaine cookie on the ground in the exact area specified by Walters as the place where he saw the object thrown. While the inferences from this evidence were certainly circumstantial, testimony regarding what the officers saw and found was direct evidence. In my view, the evidence was sufficient to authorize the jury to conclude that Florence was guilty of possession of cocaine with intent to distribute. I would affirm his conviction.

I am authorized to state that Presiding Judge Andrews and Judge Bernes join in this dissent.