Philip J. Massa, Director, and Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel Fourth District, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.
The defendant, Angelia Harris, appeals her conviction for possession of cocaine with intent to sell within 1,000 feet of a park. Because there was insufficient circumstantial evidence of her intent to sell, we reverse the conviction and remand for
entry of a judgment of conviction for possession of cocaine.
At trial, a police officer testified that shortly before noon on August 19, 2007, he was on foot patrol when he entered a recreational park owned by the City of Boynton Beach. There were about thirty people in the park. The officer saw the defendant holding a cell phone with one hand and dangling a clear sandwich bag containing " off color whitish looking pebbles" from her other hand. Based on the officer's training and experience, he believed the pebbles to be crack cocaine.
As the officer approached the defendant in the park, someone loudly yelled " police." The defendant turned, saw the officer in police uniform, abruptly closed the cell phone, and crumpled the bag into her fist. The defendant began turning away from him and shoving the bag down the front of her waistband. A female backup officer arrived and conducted a pat-down on the defendant. A bag containing about forty to fifty pieces of suspect rock cocaine was retrieved from the defendant. A forensic scientist later confirmed that the substance was cocaine and determined that the net weight of the substance was approximately five grams.
The officer opined based on his training and experience that the nearly fifty cocaine rocks found in the defendant's possession were for sale to others. He testified that the distinction between personal use and intent to sell is based on both the amount of the drug in the person's possession and the presence or absence of drug paraphernalia. Someone possessing crack cocaine for personal use " would have, say, two or three pieces of crack cocaine [and] would also have a crack pipe that would be for personal use, typically." By contrast, someone with " in excess of 20, 30 or 50 rocks of crack cocaine without a device to ingest that crack cocaine would typically be associated with the sale of cocaine." The officer testified that he did not find any drug paraphernalia on the defendant. He estimated that the crack cocaine in the defendant's possession was worth $20 per rock.
The defendant's motions for judgment of acquittal argued, in part, that the State failed to introduce sufficient evidence that the defendant intended to sell the cocaine. The trial court denied the motions for judgment of acquittal, and the jury found the defendant guilty of possession of cocaine with intent to sell within 1,000 feet of a park.
A de novo standard of review applies when reviewing a motion for judgment of acquittal. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). " Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. 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." Id. (citations omitted). A more stringent standard of review applies, however, if the State's evidence of guilt is wholly circumstantial. See State v. Law, 559 So.2d 187, 188 (Fla.1989). In drug prosecutions, where the only proof of intent to sell is circumstantial, such proof may support a conviction for possession with intent to sell only if it excludes every reasonable hypothesis that the defendant possessed the drugs for personal use. See Jackson v. State, 818 So.2d 539, 541 (Fla. 2d DCA 2002).
The quantity or packaging of drugs in a defendant's possession may indicate an intent to sell. Valentin v. State, 974 So.2d 629, 630 (Fla. 4th DCA 2008). In considering what type of circumstantial
evidence is necessary to prove a defendant's intent to sell, a court may consider quantity and value to be sufficient when the quantity is substantial. Glenn v. State,824 So.2d 1046, 1049 (Fla. 4th DCA 2002). But in cases where small amounts of narcotics are found, " courts generally require other proof of suspicious circumstances, drug paraphernalia available, or other evidence which ...