Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-1603 _____________________________ MARCUS DEWAYNE JACKSON, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Gary L. Bergosh, Judge. April 21, 2020 ON APPELLANT’S MOTION FOR REHEARING OSTERHAUS, J. We grant Appellant’s Motion for Rehearing, withdraw our previous opinion, filed January 29, 2020, and substitute the following in its place. Marcus Dewayne Jackson was tried and convicted of first- degree murder after he sold heroin to a man who died of a heroin overdose within hours of the sale. On appeal, Jackson seeks a new trial arguing that the trial court excluded evidence that someone else sold the victim the lethal heroin dose. We affirm. I. The victim in this case died in his bedroom from a heroin overdose. On the victim’s cell phone, some of his last text message correspondence was with the defendant Jackson who had inquired the evening before whether the victim wanted heroin. Jackson and the victim proceeded to coordinate a heroin transaction by text message, with the victim stating that he would buy $40 worth if the heroin looked good, but only $20 worth if it did not. Evidently, the heroin looked good to the victim. He purchased $40 worth and texted a third party: “Damn, my boy got some fire, boy.” The victim returned to his room after buying the heroin and was found dead of an overdose the next morning. Jackson was subsequently charged, tried, and found guilty of first-degree murder by drug distribution in violation of § 782.04(1)(a)(3), Florida Statutes. The trial court sentenced Jackson to life in prison. II. Jackson argues for a new trial because he believes that exculpatory evidence was wrongly excluded by the trial court. We review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. Lantz v. State, 263 So. 3d 279, 282 (Fla. 1st DCA 2019). A trial court abuses its discretion only when “the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. White v. State, 817 So. 2d 799, 806 (Fla. 2002). At the trial, the State and Jackson presented two different stories to the jury about what happened. The State’s theory of the case was that Jackson sold heroin to the victim sometime after 6 p.m., which the victim took that evening or the next morning and died. Jackson’s theory was that he distributed heroin to the victim around 6 p.m., and that the victim immediately used Jackson’s heroin and survived. Then, some time later that evening, the victim acquired more heroin from someone else, and this later batch of heroin killed him. In other words, Jackson argues that he didn’t distribute the dose of lethal heroin that proximately caused the victim’s death. 2 Jackson sought to introduce various evidence supporting his narrative, including a text message sent by the victim to a third party immediately after purchasing the heroin. Jackson argues that the message shows that the victim used the heroin sold by Jackson and survived. Specifically, within minutes of purchasing heroin from Jackson, the victim sent a text message saying: “Damn, my boy got some fire, boy.” The trial court excluded the text message as inadmissible hearsay because it took the victim’s “fire” statement to mean the same thing that Jackson hoped to prove with the statement—that “he [had] used it.” See § 90.801(1)(c), Fla. Stat. (defining “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). Jackson argues that the text message meant something different. In his view, it stated the victim’s opinion of the quality of the heroin, along the lines of “this is good quality heroin.” Thus, Jackson argued that he could use the statement to prove a different matter—that the victim had already used the heroin. But we see no error in the trial court’s reading the message as a statement about the victim’s usage. The proffered testimony of a law enforcement officer agreed that the text message could be interpreted as a statement about the victim’s use of the heroin. Furthermore, Jackson’s wish to introduce the text message to establish the victim’s usage itself tends to show that the text message communicated that fact. Conversely, the heroin’s quality—whether the victim thought he had purchased good- or bad-quality heroin from Jackson—wasn’t an issue in this case. And the trial court’s decision against reading the victim’s message as an irrelevant statement about the heroin’s quality aligns with the Florida Supreme Court’s view that: When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label. Keen v. State, 775 So. 2d 263, 274 (Fla. 2000); see also Banks v. State, 790 So. 2d 1094, 1098 (Fla. 2001) (finding inadmissible 3 hearsay where a party “simply cannot point to any purpose for the admission of [the statement] other than for the truth of the matter asserted therein”). Jackson next argues that the trial court erroneously excluded the details of how the victim purchased the heroin. According to Jackson’s testimony, he received $40 from the victim for the heroin, but another upstream dealer dealt the drugs to Jackson first and was the “actual source” of the heroin consumed by the victim. Jackson claims merely to have passed the heroin from the actual-dealer source to the victim and then passed the money back from the victim to the actual-dealer source. Here again, we see no reversible error. It was undisputed that Jackson supplied the victim with heroin in return for $40, which was what the statute requires to be proven. The statute doesn’t excuse downstream distributors from culpability in favor of upstream suppliers. And here, the evidence showed that Jackson was the proximate cause of the victim’s receipt of the heroin after Jackson closely coordinated the sale via an extended string of text messages. Jackson also argues that the trial court wrongly excluded a text message sent by an upstream dealer to the victim later in the evening after Jackson’s sale was completed, asking if the victim wanted more heroin. With this evidence, Jackson speculated that the victim might have sourced the lethal dose of heroin later that night from the upstream dealer who had been present for the 6 p.m. deal. But Jackson didn’t preserve this issue. See Morrison v. State, 818 So. 2d 432, 446 (Fla. 2002). That is, while Jackson argues that the court excluded the text message pursuant to the State’s pretrial motion in limine, there actually wasn’t any mention of a message from the upstream dealer to the victim at that motion hearing. Neither in the State’s motion, nor among Jackson’s five arguments at the hearing, was there any discussion of evidence that the victim had later contact with another heroin dealer on the evening of his death after the Jackson-involved transaction. Finally, we see no error in the trial court’s denial of the motion for judgment of acquittal. Competent, substantial evidence 4 established each element in support of the jury’s finding that Jackson was guilty. See Walker v. State, 957 So. 2d 560, 577 (Fla. 2007) (“On appeal of a denial of a motion for judgment of acquittal where the State submitted direct evidence, the trial court’s determination will be affirmed if the record contains competent and substantial evidence in support of the ruling.” (quoting Conde v. State, 860 So. 2d 930, 943 (Fla. 2003))). III. The judgment and sentence are AFFIRMED. RAY, C.J., and B.L. THOMAS, J., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Victor Holder, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee. 5