FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Highlands County; Peter F.
L. Dimmig, II, Public Defender, and Ama N. Appiah, Special
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Johnny T.
Salgado, Assistant Attorney General, Tampa, for Appellee.
McFarlane challenges his convictions for possession of
cocaine with intent to sell and criminal mischief. We agree
with his argument that reversal is required on his conviction
for possession of cocaine with intent to sell because the
State failed to prove the cocaine was intended for sale
rather than for personal use. However, we find no merit in
McFarlane's remaining argument and, accordingly, affirm
his conviction for criminal mischief.
detective stopped McFarlane's car because he recognized
McFarlane and suspected he was driving with a suspended
license. Upon confirming that McFarlane had a suspended
license, the detective conducted a search incident to arrest
and found that McFarlane had $42 and a small box in his
pocket holding methamphetamine and cocaine. Eight cocaine
rocks were different sizes and were not individually
packaged. Three officers testified at trial and opined that
based on their experiences the way the cocaine was packaged
and cut up in various sizes was indicative of distribution,
but each officer conceded that the cocaine could also be for
self-use. No testimony was presented as to the total weight
of the cocaine.
quantity or packaging of drugs found in a defendant's
possession may indicate an intent to sell. Phillips v.
State, 961 So.2d 1137, 1138 (Fla. 2d DCA 2007) (noting
that the amount and quantity of drugs possessed by an
individual may be circumstantial evidence of his intent to
sell where such amount is inconsistent with personal use).
"[H]owever, in cases where small amounts of narcotics
are found, courts generally require other proof of suspicious
circumstances, drug paraphernalia available, or other
evidence which circumstantially would indicate intent to
sell." Lesane v. State, 895 So.2d 1231, 1233
(Fla. 4th DCA 2005); see also Jackson v. State, 818
So.2d 539, 541 (Fla. 2d DCA 2002) (holding that where the
defendant was arrested for fleeing a traffic stop and found
to possess $400 and five grams of cocaine packaged in six
ring baggies, the quantity was not so large as to imply an
intent to sell without other evidence); Williams v.
State, 569 So.2d 1376, 1377 (Fla. 2d DCA 1990)
(concluding that evidence consisting of ten pieces of
cocaine, marijuana rolling papers, $72, and a weapon was
insufficient to prove intent to sell); Thomas v.
State, 212 So.3d 410, 412-13 (Fla. 4th DCA 2017)
(holding that the evidence was insufficient to prove intent
to sell drugs where the quantity of drugs was small, the
drugs were not individually packaged, $1086 in cash was not
mingled with the drugs, and the arresting officer did not
observe the defendant engage in any conduct consistent with
illegal drug sales before stopping him for a traffic
violation); Sampson v. State, 863 So.2d 404, 405
(Fla. 4th DCA 2003) (reversing the defendant's conviction
for possession of cocaine and cannabis with intent to
distribute where no evidence was presented that the 12.9
grams of cocaine found on the defendant was inconsistent with
personal use or that there was any other indication that the
defendant intended to sell the cocaine).
trial court erred in failing to grant McFarlane's motion
for judgment of acquittal on the possession of cocaine with
intent to sell charge. Before the arresting officer stopped
McFarlane's car he did not observe McFarlane engage in
any conduct consistent with illegal drug sales. McFarlane did
not have large amounts of drugs or money; he did not have a
gun, scales, baggies, or any other items to indicate that he
was in the business of selling drugs. Further, the officers
conceded at trial that McFarlane's possession of the
cocaine rocks could have been for his own personal use.
See Thomas, 212 So.3d at 413 (holding that "the
state's evidence was legally insufficient to prove an
intent to sell the cocaine, especially in light of the
state's expert's opinion testimony that
appellant's possession of some of the cocaine pieces
could have been either with an intent to sell or for his own
we reverse McFarlane's conviction for possession of
cocaine with intent to sell. We remand for entry of a
judgment for simple possession of cocaine and for
resentencing on the reduced charge.
in part, affirmed in part, and remanded.
SILBERMAN, J., Concurs. LUCAS, J., Concurs with opinion.
LUCAS, Judge, concurring.
with the court's decision to reverse Mr. McFarlane's
conviction for possession of cocaine with intent to sell
because I, like the majority, am bound by precedent to do so.
I do wonder, though, whether the law on the issue of criminal
intent to sell has become overly didactic-perhaps to the
point that it is becoming unsustainable. It is one thing to
catalog those aspects of a drug sale prosecution that
can provide circumstantial evidence of a
defendant's criminal intent to sell-having a large
quantity of drugs, associated paraphernalia, scales, rolls of
cash, and so forth- but quite another to turn them into
requisites that must be shown, without which the
State cannot present its case to the jury. These "tools
of the trade, " as it were, are indicia of an
accused's intent to sell illegal drugs, and the courts
rightly allow their consideration in these prosecutions
because criminal intent is an element uniquely reserved for a
jury's determination. See State v. Tovar, 110
So.3d 33, 36 (Fla. 2d DCA 2013) ("[A] trial court should
rarely, if ever, grant a motion for judgment of acquittal
based on the state's failure to prove mental
intent." (quoting Hardwick v. State, 630 So.2d
1212, 1214 (Fla. 5th DCA 1994))); Wallace v. State,
764 So.2d 758, 759 (Fla. 2d DCA 2000) ("[P]roof of
mental intent is seldom accomplished by direct evidence;
consequently, the absence of direct proof on the question of
the defendant's mental intent should rarely, if ever,
result in a judgment of acquittal." (quoting Ehrlich
v. State, 742 So.2d 447, 450-51 (Fla. 4th DCA 1999))).
But our case law treats the presence of these circumstantial
indicia of drug dealing as if they were a requisite part of
the element of intent that the State must prove in cases
where there is no direct evidence of a criminal intent to
sell drugs. In truth, we are tasking the State with providing
a surrogate for direct evidence (chosen from an opaquely
defined list of our making) on the issue of a defendant's
intent to sell. Why?
district this whole muddled notion appears to have sprouted
from the circumstantial evidence rule, which requires a
prosecution based upon circumstantial evidence to be
inconsistent with the defendant's reasonable hypothesis
of innocence. See Williams, 569 So.2d at 1376
(reciting circumstantial evidence rule and decreeing that
defendant's possession of ten pieces of cocaine,
marijuana rolling papers, razor blades, $72 cash, and a
weapon were not inconsistent with defendant's theory that
the cocaine he possessed was for personal use, not for sale);
see also Phillips, 961 So.2d at 1138 ("Where
the only proof of an intent to sell is circumstantial, [that
proof] may support a conviction only if it excludes every
reasonable hypothesis of innocence." (alteration in
original) (quoting Glenn v. State, 824 So.2d 1046,
1049 (Fla. 4th DCA 2002))). I am not convinced that the
application of the circumstantial evidence rule we have
wrought-focused and applied, as it is, entirely on the
singular element of intent-can be aligned with the Florida
Supreme Court's clarification of that rule in Knight
v. State, 186 So.3d 1005, 1010 (Fla. 2016) ("[W]e
agree with the Fifth District that [the circumstantial
evidence standard] should not be applied based on any
particular element of a crime being itself proven entirely by