The Fifth DCA’s recent decision upholding a drug possession conviction may signal that Florida’s appellate courts will soon abandon the "special" circumstantial evidence standard of review.

Courts reviewing convictions wholly based on circumstantial evidence have employed a special standard that demands, "where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence."

Certifying conflict with the First, Second and Fourth DCAs, the three-judge panel asked the Florida Supreme Court to reconsider a decision district courts have been following since 1982. The decision is of limited value, according to the Fifth DCA, because it lacks analysis on the point.

Jonathan Knight’s challenge concerned whether the state sufficiently proved that he had knowledge of a controlled substance’s presence in the first place.

Knight was charged with possession of more than 20 grams of marijuana and with possession with intent to sell or deliver after a drug dog alerted during a traffic stop. Knight was driving his friend’s car with two passengers. Police found the marijuana in a suitcase bearing a luggage tag with Knight’s name on it and also found $2,400 in cash in Knight’s pockets.

At trial, Knight denied that the marijuana was his and that the money was from selling drugs. Knight contended that the person in the back seat — sitting next to the suitcase — put the marijuana in the suitcase after police removed Knight from the car.

The trial court denied Knight’s motion for judgment of acquittal. The jury returned a guilty verdict on the possession charge but found him not guilty of intending to sell or deliver.

On appeal, the Fifth DCA affirmed, but acknowledged that it would have reversed had it approached the case in the same way as the conflicting districts.

The court looked as far back as 1850 to explain why. It was then that Massachusetts Supreme Court required juries to exclude every hypothesis except guilt when considering circumstantial evidence. That stood for over 100 years.

In 1954, the U.S. Supreme Court concluded the instruction wasn’t required and explained that circumstantial evidence in some situations no different from testimonial evidence.

Consequently, all federal courts, and most state courts, no longer give the instruction. Florida became one of those states 1981, but retained the special standard of review, even though it had the opportunity to ditch it the following year. Only two other states take this approach.

The Fifth DCA would cut the vestigial standard out of Florida jurisprudence altogether. In its place, it would have appellate courts would use the existing general standard.

The DCA’s suggestion? "If after viewing the evidence in the light most favorable to the state, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction," Judge C. Alan Lawson wrote on behalf of the court.

The court offered numerous reasons.

It found the special standard to be misleading in that it ignores the role of the jury, and the correlation between the strength of circumstantial evidence and the reasonableness of various hypotheses of innocence. Further, it also incorrectly suggests that a jury’s credibility determinations should never factor into a sufficiency of evidence review in circumstantial evidence cases.

The court also found the special standard to be unhelpful as an analytical tool in that it isn’t worded in a way that aligns with the required analysis. Nor is the special standard necessary — trial judges still can order new trial where verdict is contrary to law or the weight of evidence.

Even if the special standard is to stay, the Fifth DCA saw no reason to apply the special standard in Knight’s case — where state of mind was an element — under existing law.

Under either the special or the general standard, however, the Fifth DCA viewed the question of Knight’s knowledge of the drug’s presence to be one for the jury.