VICKI PETERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2003-04-09
No. 4D01-4780
STONE and MAY, JJ., concur.
841 So. 2d 661 Florida District Court of Appeal, Fourth District (2003) Positive Treatment
Cited by 10 cases

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Synopsis

Appellant Vicki Peterson challenged her cocaine possession conviction, arguing that the state failed to introduce the actual cocaine into evidence. The Fourth District Court of Appeal affirmed the conviction, holding that the cocaine residue on the pipe, which was introduced as evidence and tested positive, satisfied the statutory requirement.


Holding

The trial court correctly denied the motion for judgment of acquittal because the state introduced the cocaine into evidence in the form of blue residue visible on the pipe, and the quantity of drugs is immaterial for a possession charge.


Headnotes

[1] A conviction for possession of a controlled substance requires the state to introduce the substance into evidence, unless its destruction during testing is excused.

[2] The introduction of a drug pipe containing cocaine residue, where the residue is shown to be cocaine, satisfies the state's burden to introduce the substance into evidenc…

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Key Quotes

“When the state charges a defendant with possession of a controlled substance, the state must introduce the substance into evidence unless excused by its destruction during testing.”

Establishes the general rule that controlled substances must be introduced in evidence

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Facts & Procedural History

While riding a bike, appellant dropped a pipe. An officer retrieved the pipe and conducted a field test that produced a blue color indicating cocaine.…

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Opinion of the Court
WARNER, J.

WARNER, J.

In challenging her conviction for cocaine possession, appellant claims the court erred in failing to grant her motion for judgment of acquittal, as the state failed to introduce the cocaine she possessed into evidence. Because the cocaine was mere residue, and the cocaine pipe with the residue was introduced into evidence, the trial court correctly denied the motion. We therefore affirm.

When an officer retrieved a pipe dropped by appellant while riding a bike, he conducted a field test for traces of drugs. The test caused a blue color to appear which indicated the presence of cocaine. A forensic chemist tested the stem portion of the pipe by using a rinse solution. She tested only the stem, not the bottle of the pipe, because she did not want the blue colored residue caused by the officer’s field test to interfere with her test. The residue in the stem tested positive for cocaine. There was no evidence as to what occurred to the residue tested by the chemist.

The state rested after presenting only the testimony of the officer and the chemist. The defense then moved for a judgment of acquittal arguing the state’s failure to introduce the cocaine into evidence or explain that the cocaine was unavoidably destroyed during testing, constituted grounds for acquittal. The motion was denied. The defense rested and the jury found appellant guilty. After conviction and sentence, appellant filed this appeal.

When the state charges a defendant with possession of a controlled substance, the state must introduce the substance into evidence unless excused by its destruction during testing. See G.E.G. v. State, 417 So. 2d 975, 977 n. 2 (Fla.1982). Appellant contends that our decision in Marrisette v. State, 780 So. 2d 1020 (Fla. 4th DCA 2001), requires reversal. We disagree. In Marrisette, also a cocaine pipe case, the state introduced the pipe into evidence, but not the cocaine. 780 So. 2d at 1021. We held that where the testimony failed to account for what happened to the residue in the pipe and why it was unavailable at trial, the court erred in denying a motion for judgment of acquittal. See id. In the present case, however, the state actually introduced the cocaine into evidence. The state introduced the pipe, which exhibited a blue color. The officer testified that the blue color resulted from his test of cocaine, which turned the residue blue. Therefore, unlike Marri-sette, the substance, in the form of blue residue, was introduced.

The quantity of drugs possessed is immaterial for a possession charge. See Jones v. State, 589 So. 2d 1001, 1002 (Fla. 3d DCA 1991) (quoting State v. Eckroth, 238 So. 2d 75, 77 (Fla.1970)) (citations omitted) (holding “infinitesimal ‘residue’ of cocaine found on a small piece of metal ribbon” contained in jacket pocket was sufficient to sustain possession conviction). The evidence presented was sufficient to overcome the motion for judgment of acquittal.

Affirmed.

STONE and MAY, JJ., concur.


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Citator

Cited By

  • Fleming v. State, 82 So. 3d 967 (Fla. 4th DCA 2011)
    …03) (internal citations omitted). Fleming argues that the trial court should have granted his motion for judgment of acquittal because no cocaine was admitted into evidence at trial. Fleming and the State relied on Marrisette and Peterson v. State, 841 So. 2d 661, 662 (Fla. 4th DCA 2003), both out of this court, to support their opposing positions. In Marrisette, appellant was charged with possession of cocaine and possession of paraphernalia. 780 So. 2d at 1021. After the court denied Marrisette’s motion f…
  • Tukes v. State, 18 So. 3d 710 (Fla. 4th DCA 2009)
    …PER CURIAM. Affirmed. See Peterson v. State, 841 So. 2d 661 (Fla. 4th DCA 2003). MAY, DAMOORGIAN and CIKLIN, JJ., concur.…
  • Mills v. State, 49 So. 3d 861 (Fla. 4th DCA 2010)
    …PER CURIAM. Affirmed. See Peterson v. State, 841 So. 2d 661 (Fla. 4th DCA 2003). GROSS, C.J., STEVENSON and TAYLOR, JJ., concur.…

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