          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D17-5343
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STATE OF FLORIDA,

    Appellant,

    v.

DENNIS A. BOHLER,

    Appellee.
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On appeal from the Circuit Court for Hamilton County.
Andrew J. Decker, III, Judge.

                        February 11, 2019


WINSOR, J.

     After a jury convicted Dennis Bohler of drug possession, the
trial court granted his motion for new trial. This is the State’s
appeal of that decision. We have jurisdiction, see Fla. R. App. P.
9.140(c)(1)(C), and we affirm.

     The State charged Bohler with sale of a controlled substance
within 1,000 feet of a childcare facility, along with possession of a
controlled substance with intent to sell. To build their case,
authorities had wired a confidential informant and sent him to the
tire store where Bohler worked. The State’s effort to gather video
evidence of a drug transaction was unsuccessful. As the trial court
found, “[m]any of the shots were of the tops of trees, floors, and
everything but an actual drug transaction.” The court went on to
conclude that it was “apparent that this occasion was the
informant’s first use of hidden taping equipment and no practice
or dry-run was ever tried to hone or refine the informant’s
technical proficiency.” But the State did have the informant’s
word. The informant testified that he gave Bohler money for drugs
and that Bohler then went with him to get the drugs from a nearby
car, but that the drugs were not there. The informant reported that
Bohler told him to come back in thirty minutes, after which Bohler
told him to look in an open desk drawer in the tire store. There,
the informant testified, he found and took cocaine, completing the
transaction.

     Bohler testified in his defense, denying that he sold the
informant drugs. The case therefore turned on whether the jury
believed the informant or Bohler. The jury ended up acquitting
Bohler on the drug-sale charge, but it convicted him of simple
possession, a lesser included offense. Bohler then moved for a new
trial, arguing—among other things—that the jury’s verdict was
contrary to the weight of the evidence, see Fla. R. Crim. P.
3.600(a)(2), and that the trial court should have allowed Bohler
more leeway in impeaching the informant, see id. 3.600(b)(6).

    After a hearing, the court entered a detailed written order
granting Bohler a new trial. We now review that order under the
abuse-of-discretion standard, Stephens v. State, 787 So. 2d 747,
754 (Fla. 2001), keeping in mind that “a stronger showing is
required to upset an order granting than an order denying a
motion for new trial,” Cloud v. Fallis, 110 So. 2d 669, 673 (Fla.
1959).

     When considering a rule 3.600(a)(2) new-trial motion based on
weight of the evidence, “the trial court must exercise its discretion
to determine whether a greater amount of credible evidence
supports an acquittal.” Kelley v. State, 16 So. 3d 196, 196-97 (Fla.
1st DCA 2009) (quoting Ferebee v. State, 967 So. 2d 1071, 1073
(Fla. 2d DCA 2007)). The court must “weigh the evidence and
determine credibility just as a juror would.” Bell v. State, 248 So.
3d 208, 209 (Fla. 1st DCA 2018), review denied, 2018 WL 6619798
(Fla. Dec. 17, 2018); accord Tibbs v. State, 397 So. 2d 1120, 1123
n.9 (Fla. 1981) (“Rule 3.600(a)(2) thus enables the trial judge to


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weigh the evidence and determine the credibility of witnesses so
as to act, in effect, as an additional juror.”).

      Here, in granting Bohler’s motion, the court did just that: it
weighed the evidence and considered witness credibility. It
concluded that the informant—the State’s principal witness—had
little credibility, noting he had fought with Bohler, had business
disputes with Bohler, and had a strong desire to make a drug buy
to secure a favorable sentence in his own criminal case. And it also
weighed the other evidence presented, concluding that the verdict
was against the manifest weight of the evidence. Although the
State argues that the court improperly considered evidence that
was not presented to the jury, the court’s determinations about the
evidence that was presented is enough to uphold the court’s order.
In short, the State has not met its difficult burden of showing an
abuse of discretion.

    AFFIRMED.

ROWE and BILBREY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Ashley B. Moody, Attorney General, and Robert Quentin
Humphrey, Assistant Attorney General, Tallahassee, for
Appellant.

Andy Thomas, Public Defender, and Steven L. Seliger, Assistant
Public Defender, Tallahassee, for Appellee.




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