FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Dan Traver, Judge.
C. Coffman, Orlando, for Appellant.
Moody, Attorney General, Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona Beach, for Appellee.
2016, Appellant, Ezell Harris, Jr., was arrested and charged
with trafficking in twenty-eight grams or more of hydrocodone
and four grams or more of morphine after he sold hydrocodone
pills and morphine pills to an undercover agent. A
confidential informant helped arrange the video-recorded
transaction. Prior to trial, the State filed its Notice of
Intention to Use Similar Fact Evidence, alleging that on
several occasions in 2009, Harris sold oxycodone or
hydrocodone pills to various people.
the State later informed Harris that it did not intend to use
the prior drug sales as similar fact evidence, Harris moved
in limine, during trial, to prevent the State from using
prior sales as evidence of predisposition to rebut his
planned defense of entrapment. Harris argued that the
evidence was inadmissible because the State had nolle prossed
the charges related to the prior sales. The trial court
denied Harris' motion, thereby permitting the admission
of such evidence if Harris chose to testify that he was
entrapped by the confidential informant. Harris declined to
testify and presented no other witnesses. The jury
subsequently returned guilty verdicts on both trafficking
counts. On appeal, Harris argues that the trial court erred
in denying his motion in limine. We affirm.
law recognizes two distinct entrapment defenses-objective
entrapment and subjective entrapment. Only the subjective
entrapment defense is implicated in this case. Subjective
entrapment focuses on whether the defendant was predisposed
to commit the crime. Jones v. State, 114 So.3d 1123,
1126 (Fla. 1st DCA 2013). This inquiry turns on whether the
defendant was an individual who had no predisposition to the
crime but was lured into doing so, or, instead, was an
individual who readily availed himself or herself of the
opportunity to commit the crime. Id.
Munoz v. State, 629 So.2d 90 (Fla. 1993), the
Florida Supreme Court established that in asserting the
defense of subjective entrapment, the defendant has the
burden of showing that a government agent induced him to
commit the charged offense and that he was not predisposed to
commit it. Id. at 99. If the defendant presents
evidence of his lack of predisposition, the burden shifts to
the State to rebut that evidence beyond a reasonable doubt.
Id. "In rebutting the defendant's evidence
of lack of predisposition, the prosecution may make 'an
appropriate and searching inquiry' into the conduct of
the accused and present evidence of the accused's prior
criminal history, even though such evidence is normally
inadmissible." Id. (citation omitted).
to Harris' suggestion, evidence of prior crimes to rebut
an entrapment defense is not limited to events resulting in a
conviction. "The state may prove predisposition
with evidence of 'the defendant's prior criminal
activities, his reputation for such activities, reasonable
suspicion of his involvement in such activity, or his ready
acquiescence in the commission of the crime.'"
Jones, 114 So.3d at 1126 (citation omitted). Here,
the State was prepared to present testimony of a witness who
had allegedly witnessed Harris' participation in illegal
drug sales in 2009. This evidence would have been relevant to
the issue of whether Harris was predisposed to commit the
contrary to Harris' assertion, dropped charges are not
the equivalent of an acquittal. The State can dismiss charges
for a variety of reasons other than the innocence of the
The decision to nolle pros a charge is a matter of
prosecutorial discretion which may be exercised for reasons
unrelated to the likelihood of conviction or the
prosecutor's judgment as to the accused's guilt or
innocence of the charged offense.
Holland v. State, 432 So.2d 60, 61 (Fla. 1st DCA
1983) (footnote omitted), approved, 466 So.2d 207
(Fla. 1985). Indeed, in the context of Williams
evidence, the Florida Supreme Court has expressly held that
relevant evidence of a defendant's participation in a
collateral offense is admissible, notwithstanding that the
charges against the defendant in the collateral offense were
nolle prossed. Holland, 466 So.2d at 208;
seealso Pomeranz v. State, 703 So.2d 465,
469 (Fla. 1997) ("Pleading guilty to a lesser offense on
remand or having a charge nol-prossed is clearly
distinguishable from obtaining an acquittal."). The same
logic applies to evidence of predisposition. Accordingly,
because evidence of prior drug sales ...