Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JASON LUIS ACEVEDO, DOC #R83840, ) ) Appellant, ) ) v. ) Case No. 2D18-844 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed March 13, 2020. Appeal from the Circuit Court for Pinellas County; Pat Siracusa, Judge. Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Chelsea N. Simms, Assistant Attorney General, Tampa, for Appellee. SILBERMAN, Judge. Jason Luis Acevedo seeks review of his judgment and sentences for trafficking in hydromorphone, trafficking in oxycodone, and possession of alprazolam. Acevedo argues that the trial court abused its discretion by overruling the defense's objection to the prosecutor's misstatements of the law in closing arguments. We agree that the prosecutor misstated the standard and the burden of proof for Acevedo's defense of lack of knowledge of the illicit nature of the controlled substances. And we are not convinced that the error in overruling defense counsel's objection was harmless. Accordingly, we reverse and remand for a new trial. The charges arose after law enforcement conducted a traffic stop of a vehicle in which Acevedo was a passenger. Based on the deputy's observations, he conducted a pat-down and subsequent search of Acevedo which revealed a scale, a pill bottle containing over 200 pills, and $600 in cash. The pills were hydromorphone, oxycodone, and alprazolam. A search of the driver revealed a baggie of marijuana and more than $1800 in cash. At trial, Acevedo's defense was that he lacked knowledge of the illicit nature of the controlled substances in the pill bottle. Acevedo testified that he had called his friend Malcolm earlier in the day to purchase an ounce of marijuana. When he left for Malcolm's house, Acevedo took the money and scale with him. Malcolm did not have a whole ounce of marijuana, so he and Acevedo went to get more. The two men smoked a joint in the car before the deputy initiated a traffic stop. As law enforcement approached the vehicle, the two men panicked. Malcolm shoved something down his shorts and handed Acevedo a pill bottle, saying "tuck this." Acevedo complied. Acevedo testified he did not know the pill bottle contained illegal narcotics; he thought the bottle contained marijuana. He said he had known Malcom since the sixth grade and had only known him to sell marijuana and crack cocaine. -2- The jury was instructed as follows regarding the offense of trafficking in hydromorphone, and this instruction was repeated for the other trafficking charge: To prove the crime of trafficking in hydromorphone, the State must prove the following three elements beyond a reasonable doubt. One, Jason Acevedo knowingly possessed a certain substance. Two, the substance was hydromorphone or a mixture containing hydromorphone. Three, the hydromorphone or any mixture containing hydromorphone weighed 14 grams or more. .... Lack of knowledge of the illicit nature of a controlled substance is a defense to trafficking in hydromorphone. You are permitted to presume that Jason Acevedo was aware of the illicit nature of the controlled substance if you find that he knew of the presence of the substance and exercised control or ownership over the substance. If you are convinced beyond a reasonable doubt that Jason Acevedo knew of the illicit nature of the controlled substance and all of the elements of the charge have been proved, you should find him guilty of trafficking in hydromorphone. If you have a reasonable doubt on the question of whether Jason Acevedo knew of the illicit nature of the controlled substance, you should find him not guilty of trafficking in hydromorphone. In closing argument, defense counsel asserted that Acevedo did not knowingly possess the hydromorphone, oxycodone, and alprazolam because he did not know there were pills in the pill bottle. Instead, Acevedo thought he was in possession of marijuana. Counsel argued that the jury had "to find beyond a reasonable doubt that Jason Acevedo knowingly possessed a substance, and then knowingly is with knowledge of both that it was bad, the amount, and what it was." The State then began its rebuttal closing argument as follows: -3- Nowhere in these jury instructions, ladies and gentle—just ladies—I apologize—force of habit—does it say that he has to knowingly possess and know what the pills were. Nowhere are you going to find this in the entire packet. The actual jury instructions for both trafficking of hydromorphone and trafficking of oxycodone are three. One, Jason Acevedo knowingly possessed a certain substance. Two, the substance was hydromorphone or a mixture . . . containing hydromorphone. And, three, the hydromorphone or any mixture containing hydromorphone weighed 14 grams or more. Nowhere does it say that there is a fourth element in there that counsel wants you to believe that says that Jason Acevedo knowingly possessed hydromorphone. He just has to knowingly possess a substance, and that the substance itself was tested and is hydromorphone. That is a complete and separate element we'd have to prove. The State has to prove that he possessed it, that he possessed a substance, and then we test the substance, and the substance comes back to hydromorphone. The two are exclusive from one another. Nowhere does it say that he has to know what he's carrying around is hydromorphone or know the weight of it. At this point defense counsel objected to the State's characterization of the jury instructions, but the court overruled the objection. The State continued as follows: Also, if you look at the jury instructions, it says that you are permitted to presume that he is aware of the illicit nature of the controlled substance if you find that he knew [of the] presence of [the] substance and exercised control or ownership of the substance. .... In order to prove that he had knowledge of the substance and the substance was illicit, you look to what his actions were. You can infer if he was in actual possession that he had knowledge of the illicit nature of that substance. .... -4- His actions speak volumes as to whether or not he knew of the illicit nature of the substance. Not that he knew what the substance was, that he knew the illicit nature of the substance. That is what the State needs to prove today for knowledge, and the knowledge is going to be inferred by all of his actions. .... That, ladies and gentlemen, shows that he knew the illicit nature of the substance. Again, you don't have to know what the substance is, just that it['s] of an illicit nature. And according to the jury instructions, you are permitted to presume it if under circumstances, which we have here, which include that he knew the presence of a substance, he knew his drug dealer friend was giving him something that wasn't legal, and he exercised control of ownership over that substance. The bottom line, ladies, are [sic] you may not like the way it sounds for trafficking, but it is what it is. And the elements all have been met. He possessed it. He knew it wasn't legal. He—it weighed over a certain amount. For hydromorphone, it had to be over 14 grams. And the lab tested it and concluded it to be 17.10 grams. (Emphasis added.) During deliberations the jury asked, "Did Jason Acevedo have to know what the certain substance in the bottle was for the charge to be trafficking?" The trial court told the jury to rely on the instructions it had provided. And the jury found Acevedo guilty as charged. On appeal, Acevedo argues that the trial court erred in overruling the defense objection during rebuttal closing argument. Acevedo asserts that the prosecutor misstated the law by arguing that (1) Acevedo did not have to know the specific substances in the pill bottle, and (2) the State did not have to prove his knowledge of the illicit nature of the substances even though this was his defense. -5- A trial court's ruling on an objection to prosecutorial arguments is reviewed for an abuse of discretion. Johnson v. State, 238 So. 3d 726, 739 (Fla. 2018). Acevedo correctly asserts that knowledge of the illicit nature of the controlled substance requires knowledge of the specific substance that was charged. See State v. Dominguez, 509 So. 2d 917, 918 (Fla. 1987), superseded by statute as stated in Barrientos v. State, 1 So. 3d 1209, 1216-18 (Fla. 2d DCA 2009); Abbott v. State, 744 So. 2d 578, 579 (Fla. 2d DCA 1999). At the time Dominguez was decided, the standard jury instruction for trafficking required that the State prove only the following elements: Element number one, [the defendant] knowingly sold, delivered or possessed a certain substance. Element number two, the substance was cocaine or a mixture containing cocaine. Element number three, the quantity of cocaine involved was 28 grams or more. Dominguez, 509 So. 2d at 918. But the supreme court noted it had previously held that "knowledge of the nature of the substance possessed is an essential element to the crime of trafficking." Id. (quoting Way v. State, 475 So. 2d 239, 240-41 (Fla. 1985)). The Dominguez court found the standard instruction to be inadequate because "the jury could be led to believe that it could convict the defendant merely because he 'knowingly' possessed a substance that later proved to be cocaine, whether or not he knew the nature of that substance." Id. Thus, the court modified the standard jury instruction to add this fourth element: "4. (Defendant) knew the substance was (specific substance alleged)." Id. Dominguez was superseded by statute when the legislature enacted section 893.101, Florida Statutes (2002), which determined "that 'knowledge of the illicit -6- nature of a controlled substance' is not an element of any offense under . . . chapter 893." See Barrientos, 1 So. 3d at 1214 n.5 (quoting § 893.101(2)). However, the legislature also determined that lack of knowledge of the illicit nature could be asserted as an affirmative defense. See id. at 1217. Courts have explained that under this framework, if the defendant asserts this defense then the defendant does not have to prove a lack of knowledge of the illicit nature of the controlled substance. See Maestas v. State, 76 So. 3d 991, 996 (Fla. 4th DCA 2011); Flagg v. State, 74 So. 3d 138, 140 (Fla. 1st DCA 2011). Instead, if the defendant raises the defense, then the State has the burden to prove beyond a reasonable doubt that the defendant knew the illicit nature of the substance. Maestas, 76 So. 3d at 996; Flagg, 74 So. 3d at 140. And if the State establishes actual or constructive possession of the substance, then the State is entitled to a permissive presumption of knowledge of the substance's illicit nature. Wright v. State, 920 So. 2d 21, 24 (Fla. 4th DCA 2005) (citing § 893.101(3)). "This inference allows the State to make a prima facie case of knowledge of presence without direct proof but does not eliminate knowledge of presence as an element that the jury must find to convict." Maestas, 76 So. 3d at 995 n.3. As the Wright court observed, if the defendant puts knowledge at issue, then "the defendant must work to rebut the presumption." Wright, 920 So. 2d at 24. In the defense's closing argument, consistent with its defense, counsel correctly told the jury it had to find beyond a reasonable doubt that Acevedo knowingly possessed the specific drugs charged. However, in its rebuttal closing argument the State erroneously insisted that Acevedo did not have "to knowingly possess and know -7- what the pills were." Instead, the State told the jury it only had to prove "that he knowingly possess[ed] a substance, and that substance itself was tested and is hydromorphone." While knowledge of the illicit nature of the substances is no longer an element of the crime of trafficking, lack of knowledge of the illicit nature is an affirmative defense. Once Acevedo raised the defense, the State bore the burden of establishing his knowledge of the illicit nature and had the benefit of the statutory presumption. But despite having the benefit of the presumption, the State misstated the law by insisting the jury did not need to determine that Acevedo knowingly possessed the illegal substances that were charged. The trial court thus abused its discretion in overruling defense counsel's objection to the State's argument. The State argues that any error was harmless due to the State's entitlement to a presumption of knowledge and the implausibility of Acevedo's defense. "The harmless error test 'places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.' " Marston v. State, 136 So. 3d 563, 571 (Fla. 2014) (quoting State v. DiGuilio, 491 So. 2d 1129, 1137-38 (Fla. 1986)). In conducting such a review, the focus should be on the effect on the jury as the trier of fact. Id. As to the presumption of knowledge, we are unable to conclude it renders the error harmless because Acevedo's sole defense was lack of knowledge of the illicit nature of the controlled substances. See Burnette v. State, 901 So. 2d 925, 928 (Fla. 2d DCA 2005) (holding that failure to inform the jury that lack of knowledge of the illicit -8- nature of the substance was a defense to the possession charge was not harmless error); Quick v. State, 46 So. 3d 1159, 1161 (Fla. 4th DCA 2010) (same). We recognize that the jury was properly instructed on the burden of proof regarding Acevedo's defense. And we recognize that the jury was permitted to take the jury instructions into deliberations. However, the jury was charged prior to closing argument, and the prosecutor's misstatements thereafter went uncorrected. Moreover, the jury instructions did not speak to the prosecutor's misstatements regarding the standard of proof. After the prosecutor told the jury that it did not have to prove that Acevedo knew the specific nature of the substance, the law was never clarified. This is evidenced by the jury's unanswered question, "Did Jason Acevedo have to know what the certain substance in the bottle was for the charge to be trafficking?" See Nedd v. State, 965 So. 2d 1287, 1288 (Fla. 2d DCA 2007) (finding harmful error in failing to instruct the jury on knowledge of the illicit nature when the jury asked a similar unanswered question); Abbott, 744 So. 2d at 579, 580 (same). We have considered the State's argument that Acevedo's defense is implausible. The State contends the pill bottle was a clear green color and Acevedo admitted it made a rattling sound when shaken in court. Additionally, Officer Jacobs said he heard the pill bottle rattling when it was knocked loose from where it was tucked. Thus, it seems Acevedo would have heard it rattle when he tucked it. But we are unable to find that the seeming implausibility of Acevedo's defense renders the error harmless because the jury's question established that it was considering that defense. In fact, the jury was questioning the very principal of law the -9- prosecutor misstated: whether Acevedo had to know the illicit nature of the controlled substances in the pill bottle. We therefore reverse and remand for a new trial. Reversed and remanded. NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur. - 10 -