DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
January Term 2012
STATE OF FLORIDA,
[May 2, 2012]
The issue presented on appeal is whether there was evidence of
appellant’s participation in a n y prior activity regarding a drug
transaction sufficient to establish an agreement to traffic in oxycodone.
We find, since there was insufficient evidence of appellant’s involvement
in any pre-transaction discussions, conversations, or meetings with the
co-defendant, that appellant’s conviction and sentence for conspiracy to
traffic in oxycodone should be reversed.
Edward McCabe, an undercover officer from the Delray Beach Police
Department, contacted David Levine for fifty additional oxycodone pills
after initially purchasing sixteen pills. Levine told McCabe to come to
Levine’s apartment. McCabe went to the apartment with $700 in marked
currency. Levine introduced McCabe to Sarah Billett, who also resided
at Levine’s apartment. Billet informed McCabe that “my guy’s here” and
asked McCabe for the money. McCabe gave the money to Levine, who
counted it and gave the money to Billett. Billett then walked to the
parking lot with the currency. Billett approached a black Chevrolet
Impala, which was registered to appellant, and “engaged in a brief
Junior Julien was driving the Impala. Julien exited the vehicle and
met with Billett “face to face” by one of the buildings. A passenger from
the Impala, Lincoln Jackson, left the vehicle and looked “up and down”
the roadway. Delray Beach police officers observed Billett counting out
money and handing it to Julien, who in turn, handed pills to Billett.
Julien and Jackson returned to the Impala. During the transaction, the
officers noticed another person in the back seat of the car, who turned
out to be appellant. After the Impala drove away, Billett returned and
gave forty-six oxycodone pills to McCabe.
McCabe then left the
Meanwhile the Impala left the apartment complex and
stopped about a block away. There, the driver, Julien, got out and drove
away in a parked Ford Explorer. Appellant moved to the front seat and
then drove the Impala to a nearby gas station, where officers approached
The officers observed appellant making a “downward push motion . . .
and trying to push something down to conceal it” in her purse that she
was holding. After instructing appellant to give her purse to them, the
officers found $400 which matched the investigative funds originally
given to McCabe. The officers also found in appellant’s purse a bottle of
pills prescribed by a doctor with appellant’s name on it. The pill bottle
contained fifty-four pills, which tested positive for oxycodone. A forensic
scientist could not determine whether the fifty-four pills came from the
same batch as the forty-six pills given to McCabe. Appellant told the
police officers that the $400 found in her purse was her rent money.
Appellant was arrested and charged with trafficking in oxycodone and
conspiracy to traffic in oxycodone.
At trial, appellant’s interview with the police was played for the jury.
Appellant told the police that she was prescribed 240 pills per month by
a physician for back pain and that she had a bigger bottle of pills at
home. Appellant told the police that she called her boyfriend and asked
him for some money. He said he did not have any but that she should go
see his friend in order to get some money. According to appellant, that is
why she went to see Julien. Appellant told the police that Julien told her
to drive to the apartment and wait there.
At the end of the state’s case, appellant moved for a judgment of
acquittal. The state opposed the motion by pointing out appellant’s “odd
maneuver” in sitting in the back seat of her own car, and then getting in
the front seat and driving after Julien left the car. The state also pointed
to $400 of “buy money” and the oxycodone pills on appellant as grounds
to deny appellant’s motion for judgment of acquittal. The trial court
denied the motion.
Appellant testified in her defense that her live-in boyfriend paid $400
per month for rent. Appellant called her boyfriend to obtain his share of
the rent money. After speaking with him, she drove her car to Julien’s
girlfriend’s house, where appellant picked up Julien. Appellant drove
Julien “to go get the money that somebody owed him.” After getting the
money owed to him, Julien was to pay appellant the money Julien owed
to appellant’s boyfriend. Julien got out of the vehicle at the apartment;
appellant did not see where Julien went or what he did. Julien came
back to th e vehicle with the $400 h e owed appellant’s boyfriend.
Appellant testified that when police officers observed her reaching into
her purse, she was about to pay for gas at the gas station. Finally,
appellant testified that she had the oxycodone in her purse because she
had been in a “bad car accident.”
After the trial court denied appellant’s renewed motion for judgment
of acquittal, the jury found appellant guilty of conspiracy to traffic in
oxycodone with codefendants Junior Julien and Lincoln Jackson.1 The
jury acquitted appellant of trafficking in oxycodone. Appellant appeals
her conviction for conspiracy to traffic in oxycodone.
“In reviewing a motion for judgment of acquittal, a de novo standard
of review applies.” 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.”
Richards v. State, 37 So. 3d 925, 926 (Fla. 4th DCA 2010). “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 of it favorable to the
opposite party can be sustained under the law.’” Joseph v. State, 65 So.
3d 587, 588 (Fla. 4th DCA 2011) (citation omitted).
“[T]o establish a conspiracy and appellant’s participation in it, the
state must prove ‘an express or implied agreement or understanding
between two or more persons to commit a criminal offense,’ and an
intention to commit that offense.” Leigh v. State, 967 So. 2d 1102, 1104
(Fla. 4th DCA 2007) (quoting Arguelles v. State, 842 So. 2d 939, 944 (Fla.
4th DCA 2003)).
“The agreement may b e inferred from the
circumstances; direct proof is not necessary.” Schlicher v. State, 13 So.
3d 515, 517 (Fla. 4th DCA 2009). “Florida courts have generally affirmed
convictions for conspiracies to buy or sell drugs where the ‘defendants
are involved in a series of meetings, arrangements and negotiations to
sell or buy illegal drugs that lead to such sale or purchase.’” Id. (quoting
Leigh, 967 So. 2d at 1104). “However, when the evidence establishes
‘that the defendant was merely present at the scene of the crime, had
knowledge of the crime, or even aided others in the commission of the
This court reversed codefendant Jackson’s conviction and sentence for
conspiracy to traffic in oxycodone. Jackson v. State, 74 So. 3d 563 (Fla. 4th
crime,’ it is inadequate, without more, to sustain a conspiracy
conviction.” Jackson, 74 So. 3d at 566 (citations omitted).
[o]nly where . . . the defendant’s involvement in the
enterprise appears to b e minimal at best, evincing no
prearrangements with the other defendants, or where . . . the
defendant has been acquitted of a n accompanying drug
trafficking charge, thereby discrediting much, if not all of the
evidence against the defendant, have Florida courts been
inclined to reverse such conspiracy convictions. Indeed, the
typical drug trafficking transaction involving a series of
clandestine meetings between several defendants and an
undercover police officer which eventually leads to a sale or
purchase of illegal drugs . . . presents the classic example of
a criminal conspiracy; by definition, s u c h a scenario
inferentially establishes, as a general rule, a prior agreement
among the defendants to effect a sale or purchase of illegal
drugs, else such a sale or purchase with its complicated
arrangements would never have taken place.
Pino v. State, 573 So. 2d 151, 152 (Fla. 3d DCA 1991) (citations omitted).
In the present case, the entirety of the evidence presented against
appellant was that appellant’s car was utilized in the transaction while
appellant was in the backseat, a n d later that appellant possessed
oxycodone in a prescription bottle in her name and $400 in currency
initially given to another individual by McCabe.
In Voto v. State, 509 So. 2d 1291, 1293 (Fla. 4th DCA 1987), the
defendant was a passenger in a car that drove to the scene of a drug
transaction. The defendant got out of the car, looked around the parking
lot, and spoke to some other participants in the transaction. We found
the “evidence of participation in a n y underlying understanding or
agreement” insufficient to sustain the defendant’s conviction for
conspiracy, even though there was sufficient proof of the defendant’s
participation as an aider and abettor. Similarly, in the related case of
Pennington v. State, 526 So. 2d 87, 88 (Fla. 4th DCA 1987), a defendant’s
presence at the scene combined with his statement that “[i]t’s in the
white car over there” was found insufficient to prove his participation in
a conspiracy. See also Pickover v. State, 580 So. 2d 287, 290 (Fla. 4th
DCA 1991) (evidence “failed to prove that appellant had any knowledge of
the transaction or had been involved in a conspiracy to effectuate the
sale”); Webster v. State, 646 So. 2d 752, 753 (Fla. 2d DCA 1994)
(conspiracy conviction reversed because “the record fails to establish any
particular arrangement between” defendant and confidential informant’s
acquaintance); Mickenberg v. State, 640 So. 2d 1210, 1211 (Fla. 2d DCA
1994) (despite the fact that defendant was “[c]learly . . . aiding and
abetting,” his participation did “not reach the level of the separate crime
of conspiracy”). The quantum of evidence in this case is similar to the
quantum of evidence in Voto and Pennington. As in those cases, we find
the state’s evidence insufficient to establish appellant’s participation in a
conspiracy, since there was no evidence of any meetings, conversations,
or pre-arrangements between appellant and Julien from which the jury
could infer the existence of an agreement.
Additionally, as mentioned, where “the defendant has been acquitted
of an accompanying drug trafficking charge,” much, if not all, of the
evidence against a defendant on an accompanying conspiracy charge is
discredited. Rouse v. State, 583 So. 2d 1111, 1113 (Fla. 4th DCA 1991)
(quoting Pino, 573 So. 2d at 152). In the present case, appellant was
acquitted of trafficking in oxycodone. We, therefore, are also required to
discredit much of the evidence against appellant as to the conspiracy
In summary, we are compelled to reverse appellant’s conviction and
sentence for conspiracy to traffic in oxycodone and remand for entry of a
judgment of acquittal.
Reversed and remanded with directions.
TAYLOR and GERBER, JJ., concur.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Amy L. Smith, Judge; L.T. Case No. 2009CF011234CXX.
Steven W. Gomberg of the Law Office of Steven W. Gomberg, West
Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y.
McIntire, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.