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Drug Possession with Intent to Sell Versus Possession Charges

An appeal from the Fourth District Court of Appeals, for Palm Beach County, Florida demonstrates why; the argument of “personal use of drugs” ought to be made and argued by criminal defense lawyers in Palm Beach County Courtrooms when their clients face serious drug crimes.  Whether the accused is charged with cocaine, marijuana, heroin, methamphetamine or any other illegal drug listed under Fl. Stat. Sec. 893.13, the defense of ‘personal use” is available and worthy to be made during their jury trial.

On Appeal, the defendant, Angelia Harris, argued she was denied due process in her conviction for possession of cocaine with intent to sell within 1,000 feet of a park. The defendant argued the trial court prevented her from arguing, at her jury trial, in front of Lucy Chernow Brown, that the crack cocaine found on her person was for personal use. If this argument was allowed and successfully made to the jury, by the defendant, it would have alleviated her prison sentence, as she would have only been guilty of simple possession which is not a prison scoring offense.

At trial, Judge Lucy Chernow Brown, sua sponte made the decision to deny the defendant’s judgment of acquittal of personal use. Further, the accused would have argued, to the jury that her theory of defense regarding the drugs was for personal use, as oppose to sale if not prohibited by the trial judge. The trial judge reasoned that because the amount of drugs the defendant possessed, 50 rocks of crack cocaine, was in fact too much for personal use and denied the defendant’s requests. Therefore, the jury was allowed to hear that she was selling drugs within 1000 feet of a park, as elicited by the opinion of the arresting officer, as opposed to hearing her argue the drugs were for personal use.

At the defendant’s trial, the arresting officer testified that shortly before noon, 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. The defendant was apprehended and she was found to have in her possession, 50 pieces of crack cocaine.

The defendant argued in her motion for judgment of acquittal that the State failed to introduce sufficient evidence that the defendant intended to sell the cocaine. The defendant was in fact using the drugs for her own personal consumption. The trial judge 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.

Because the jury heard this testimony from the police officer that she was a drug dealer, without any other corroboration, the jury easily convicted Angelia Harris on “weight alone”. After her conviction and due to Florida’s sentencing guidelines, the defendant was sentenced to State Prison time, as is always the case for those convicted of sale of drugs within a 1000 feet of a place of worship, school, park, daycare facility, convenient store or other designated locations contained within the statute.

On appeal, the District Court of Appeals held that the State’s evidence must be inconsistent with the defendant’s theory that she possessed the cocaine “not for sale, but exclusively for her personal use.” The Appellate court stated that “the prosecutor has the burden to dispel every hypothesis of innocence, as to every element of the crime charged”.

Here, the defendant may be using the 50 rocks for her own use, the Appellate court held. The Appellate court further reasoned that because: (i) the defendant did not have the crack rocks individually package; (ii) the defendant did not have large quantities of money on her person at the time of her arrest; (iii) the defendant did not have a firearm on her person; (iv) the defendant did not run when the police approached her; and finally (v) the police did witness her sell or make any hand to hand transactions with any buyers, her hypothesis of personal use was well founded.

Because the defendant was charged with “sale” of an illegal drug, the State has the burden to show the accused was actually “selling” the illegal drug and not just possessing it for personal use. The Appellate court made their ruling very clear, when it rejected the State’s argument about how a court should specifically weigh the significance of an officer’s “adamant” opinion that the defendant’s intent was to sell illegal drug; where the officer’s conclusion is unsupported by facts that would give their testimony credence. Because trial judges, especially former prosecutors, like Lucy Chernow Brown, believe highly in the credibility of law enforcement officers, and allow them to testify to anything, even the fact the earth is flat, as long as it secures a conviction.

So with this new language by the 4th DCA, which specifically binds Palm Beach County, FL trial judges, they are now on notice that if law enforcement officers are going to run rampant with their testimony over proper objection, the facts better corroborate the officer’s testimony. If not, then the case will be sent back down from the Appellate Court and placed back on the trial judge’s lap for retrial. As was the case in this matter of Angelia Harris.

The law office of Andrew D. Stine located in West Palm Beach, FL has been active in defending drug trials, drug appeals and drug cases in Palm Beach County, FL for over a decade. Palm Beach County drug lawyer, Andrew D. Stine, has trial experience in all forms of drug cases from trafficking in drugs, grow house drug cases, to simple possession of drug charges. Andrew D. Stine, has been practicing appellate law and filing briefs in the appellate courts since 2002 on drug related crimes; and has argued in front of every District Court in Florida, with the exception of the 3rd DCA. If you or a loved one has been arrested or is facing a drug crime, contact Andrew D. Stine. Hire Stine or Do the Time.

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