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. January 29, 2020 OSTERHAUS, J. Marcus Dewayne Jackson was tried and convicted of first- degree murder after he sold heroin to a man who subsequently 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 inquired 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 the evening before his death, sometime after 6 p.m. and before he sent a 6:20 p.m. text message to a third party stating: “Damn, my boy got some fire, boy.” The victim returned to his room after buying the heroin, was heard snoring by his roommate around 8:30 p.m., left a plate of half-eaten food sometime after 8:30 p.m., and was found dead of an overdose the next morning. Medical testimony established that he died within 15-30 minutes of ingesting the heroin. 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. Generally, we review a trial court’s ruling on the admissibility of evidence for an abuse of discretion. See, e.g., 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.” White v. State, 817 So. 2d 799, 806 (Fla. 2002). However, a court’s discretion “is limited by the Evidence Code and applicable case law, and a court’s erroneous interpretation of these authorities is reviewed de novo.” Payton v. State, 239 So. 3d 129, 131 (Fla. 1st DCA 2018) (citing McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006)). 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 waited to ingest until after 8:30 p.m. that same evening or early the next morning and then died. Jackson’s theory was that he distributed heroin to the victim just after 6 p.m., and that the victim used Jackson’s heroin by the time of his 6:20 text message and survived. Then, at some later time that evening, the victim acquired more heroin from someone else, and this later batch of heroin killed him. In other words, Jackson 2 argues that he didn’t distribute the dose of lethal heroin that proximately caused the victim’s death. Jackson hoped to introduce additional evidence supporting his theory, including, first, the 6:20 text message sent by the victim after purchasing the heroin. As mentioned above, within minutes of purchasing heroin from Jackson, the victim sent a text message to a third party saying: “Damn, my boy got some fire, boy.” Jackson argued that this text message showed that the victim used and survived the heroin dose sold by Jackson at the time the text message was sent. The trial court excluded this text message as hearsay. And we don’t find an abuse of discretion in this ruling because Jackson aimed to use the statement to prove its interpretation of the content of the text message, namely that the victim had obtained and used the heroin purchased from Jackson as of the time the message was sent. 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”). Furthermore, it was harmless for the court to have excluded this text message because it doesn’t provide proof that the victim ingested the heroin before approving it. The message says nothing about having ingested heroin. In addition, the victim’s other text messages to Jackson indicated that he would be evaluating the heroin based on its looks, not by ingestion: “Well I come see this [heroin], if it look good I’ll get a point [$40 worth]. If I don’t like how it look I’ll get a dub [$20 worth] so u gonna make a sale anyway.” The victim must have liked the looks of Jackson’s heroin because he ended up spending $40 on it. In turn, the victim’s approval of the heroin in the text message sent just after his purchase doesn’t show that he immediately ingested the heroin, but only that he “like[d] how it look[ed].” For these reasons, we don’t think the trial court abused its discretion by excluding this text message, or think that its ruling affected the verdict. Jackson next argues that the trial court erroneously excluded the details of how the victim purchased the heroin from him. According to Jackson’s testimony, he received $40 from the victim for the heroin in the presence of another dealer who first supplied Jackson with the drugs and who was the actual source of the heroin. Jackson claims merely to have passed the heroin from the 3 actual-source dealer to the victim and then passed the money back from the victim to the actual-source dealer. But here again, we see no reversible error. It was undisputed that Jackson unlawfully distributed heroin to the victim in exchange for $40, which was what the statute required to be proven. See § 782.04(1)(a)(3), Fla. Stat. The statute doesn’t excuse downstream distributors from culpability in favor of upstream suppliers. And here, the undisputed evidence was that Jackson was the proximate cause of the victim’s receipt of the heroin after Jackson had closely coordinated the sale to the victim via an extended string of text messages. Jackson’s third argument regarding excluded evidence is that the trial court erroneously kept the jury from seeing a text message sent by the upstream dealer to the victim later in the evening after Jackson’s sale was completed. The message inquired whether 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 this issue was not preserved. See Morrison v. State, 818 So. 2d 432, 446 (Fla. 2002). While Jackson argues that the court excluded this text message pursuant to the State’s pretrial motion in limine, there wasn’t any argument about a text message from the upstream dealer to the victim at the motion hearing. Neither in the State’s motion, nor in Jackson’s five arguments at the hearing, did the parties’ address this text message and theory about a second suspected heroin deal with the upstream dealer after the Jackson-involved transaction. In the absence of an objection regarding this evidence and preservation of this issue, we find no abuse of discretion. Finally, we see no error in the trial court’s denial of the motion for judgment of acquittal. Competent, substantial evidence established each element in support of the jury’s finding that Jackson was guilty. III. The judgment and sentence are AFFIRMED. RAY, C.J., and B.L. THOMAS, J., concur. 4 _____________________________ 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