Franklin Prince of Franklin Prince, Esquire, P.A., West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Lincoln Jackson, timely appeals his judgment and sentence for conspiracy to traffic in oxycodone. Jackson was charged by amended information with trafficking in oxycodone, conspiracy to traffic in oxycodone, and possession of marijuana less than twenty grams. A jury found him not guilty of trafficking in oxycodone, but guilty of conspiracy to traffic in oxycodone and possession of marijuana less than twenty grams. On appeal, Jackson argues that there was no evidence of his participation in any prior activity regarding the drug transaction sufficient to establish an agreement to traffic in oxycodone. We agree and reverse his conviction and sentence for conspiracy to traffic in oxycodone. Finding this issue dispositive, we do not address his second point on appeal regarding the trial court's denial of his motion to arrest judgment. As Jackson raises no issue on appeal with his conviction and sentence for possession of marijuana, we affirm that conviction and sentence without discussion.
At trial, the following evidence was adduced. In September of 2009, the police engaged in an undercover drug operation to purchase fifty oxycodone pills. Through a series of events, which are not relevant to our decision and did not involve Jackson, the police were led to the parking lot of an apartment building where the drugs were to be delivered to a courier in exchange for money provided by an undercover officer. The courier was then to return to a predetermined location and transfer the drugs to the undercover officer. The courier entered the parking lot, which was under surveillance by two police officers positioned in the northern section of the lot. The officers observed a Chevrolet back into a parking space at the southern end of the lot. Next, they observed co-defendant Junior Julien, the driver of the Chevrolet, exit the vehicle and meet with the courier behind a wall at the corner of the apartment building. The wall surrounded the apartment building. At that point the drugs were delivered in exchange for payment. The transaction between the courier and Julien took less than one minute.
While Julien was meeting with the courier to complete the delivery, one of the surveilling officers observed Jackson exit the same Chevrolet. After exiting the vehicle, Jackson repeatedly looked up and down the street.
The other surveilling officer observed Julien exit the driver's seat of the vehicle and walk with the courier towards the apartment building. He also observed Jackson exit the vehicle, walk towards the back of the vehicle and while facing east,
begin constantly looking around the area. The drug transaction occurred on the west side of the parking lot. After observing Jackson for close to a minute, Jackson stopped looking around when Julien started walking back towards the car, at which point both got back into the vehicle at the same time. Neither officer observed any communication between Jackson and Julien.
A third officer positioned across the street in another parking lot observed Jackson walk to the rear of the vehicle and stand by the wall looking up and down the street. This officer testified, " I think he went to urinate, but then he kept looking up and down the street, was ... focusing his attention up and down the street...." He also testified that there was " no doubt in my mind, he was looking out."
After the transaction Julien drove the Chevrolet several blocks to a driveway, got out of the vehicle and entered a Ford Explorer. At this point, a third occupant of the Chevrolet, co-defendant Betsy Dieujuste, emerged and moved to the driver's seat of the Chevrolet, and she and Jackson drove away. Dieujuste and Jackson were stopped shortly thereafter and arrested. Jackson was searched, but no investigatory money was found in his possession. The police found four-hundred dollars in Dieujuste's purse, which matched the investigatory funds provided by the undercover officer to the courier to buy the pills from Julien. When the police arrested Julien, they found one-hundred and fifty dollars in his possession, which also matched the investigatory funds used in the transaction at issue.
The courier told the police she bought the pills from Julien, but did not give the police any information that Jackson was involved. The plan was for Julien to deliver the pills to her at her apartment building after the undercover officer arrived with the money for the pills. The courier testified that she had no communication with Jackson and there was no agreement with him to get pills. During police questioning, Jackson stated that his friend Dieujuste came by to pick him up, that he did not know Julien, and he had exited the vehicle to urinate.
Relevant to this appeal, Jackson moved for judgment of acquittal on the conspiracy charge, and the trial court denied the motion. After the jury found Jackson guilty of conspiracy to traffic in oxycodone, he made a motion for arrest of judgment and/or new trial, arguing there was insufficient evidence to sustain a conviction for conspiracy to traffic in oxycodone. The trial court also denied this motion.
" A de novo standard of review applies in reviewing a motion for judgment of acquittal." Richards v. State,37 So.3d 925, 926 (Fla. 4th DCA 2010) (citing Pagan v. State,830 So.2d 792, 803 (Fla.2002)). In moving for a judgment of acquittal, a defendant admits not only the facts in evidence, but also every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence. Id. at 926 (citation omitted). " A court should grant a motion for judgment of acquittal only if ‘ the evidence is such that no view which the jury may lawfully take ...