Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-0147 _____________________________ SHAWN LEONDO BARR, JR., Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Robert E. Long, Judge. May 8, 2020 PER CURIAM. The appellant, Shawn Leondo Barr, Jr., appeals his conviction for possession of cocaine with intent to sell, challenging the sufficiency of the evidence supporting the intent element. We find the present case materially indistinguishable from Thomas v. State, 212 So. 3d 410 (Fla. 4th DCA 2017). Accordingly, we reverse and remand for entry of a judgment for the lesser-included offense of possession of cocaine and resentencing in conformity therewith. REVERSED and REMANDED with instructions. WOLF and MAKAR, JJ., concur; LEWIS, J., dissents with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Lewis, J., dissenting. I respectfully dissent and would affirm Appellant’s conviction for possession of cocaine with intent to sell. During Appellant’s trial, the State presented evidence that he was stopped in a vehicle containing three people. Appellant was the backseat passenger. After a K-9 alerted to the vehicle, officers searched it and located three baggies of what appeared to be cocaine in the center console and a cannabis cigarette and crack rock on the rear floorboard. The items in the rear of the vehicle were within “close proximity” to where Appellant had been sitting. When officers attempted to search him, Appellant physically resisted and attempted to reach into his pocket. Officers eventually located 3.8 grams of cannabis on Appellant’s person, along with 2.7 grams of powder cocaine in a plastic baggie, crack cocaine in several different pieces in a small plastic container, and a cigarillo. A razor blade was located with the crack cocaine. A baggie of A-PVP was located in the patrol car after Appellant was taken to jail. When asked whether the 3.8 grams of cannabis was consistent with an amount that would be for personal use or for sale, Officer Coates, who participated in the search, replied, “It’s consistent with possession with intent to sell.” He later testified, “And then cocaine, additionally, you can – sometimes you see it packaged bigger, half-by-half inch baggies containing maybe a half gram or a gram. And that’s so they can use it repeatedly throughout the night.” Officer Coates also testified that someone having multiple drugs on him or her is generally indicative of sale. He explained as well, “[W]hen you see different forms of the same type of drug it’s also indicative, such as crack cocaine and powder cocaine.” As for the crack cocaine, he testified that it was several different pieces, “some of which are small, some of which are double the size.” According to Officer Coates, crack cocaine is typically sold by the rock or piece, and a razor blade is used to cut 2 it apart. He testified, “[T]hat amount of crack is not typically seen on a user. And there were no smoking devices located on [Appellant].” After the State rested its case, Appellant moved for a judgment of acquittal. With regard to the possession with intent to sell charges, defense counsel argued, “I would move the Court for judgment of acquittal on the basis of there not being any evidence presented that shows that [Appellant] intended to sell the drugs. At most, it was just simple possession, personal use.” The trial court denied the motion. Defense counsel later renewed the motion, stating, “I’ll just renew the JOA argument previously made.” The trial court denied the renewed motion as well. The jury convicted Appellant of possession of cocaine with intent to sell, along with a number of other charges. The majority characterizes Appellant’s argument on appeal as a challenge to the sufficiency of the evidence supporting the intent element. However, this Court is not at liberty to address an issue that was not raised on appeal. See Rosier v. State, 276 So. 3d 403, 405 (Fla. 1st DCA 2019). While defense counsel challenged the sufficiency of the State’s evidence on intent below, the only issue on appeal, as framed by Appellant in his Initial Brief, is “whether the trial court reversibly erred when it denied [his] motion for judgment of acquittal on the question of intent to sell where the State failed to exclude the reasonable hypothesis that [he] possessed the drugs for personal use.” In his argument, Appellant contends that the State’s evidence that he possessed cocaine with the intent to sell was “wholly circumstantial” and that the “State was required to present evidence rebutting the reasonable hypothesis of innocence that the cocaine in [his] possession was for personal use.” Yet, defense counsel made neither of these arguments below. As we have explained, there are two legally distinct issues that can be raised by a defendant in a motion for judgment of acquittal: (1) whether the State presented legally sufficient evidence to establish each element of the charged offense; and (2) whether in a case where the only proof of guilt is circumstantial, the State’s evidence is inconsistent with any reasonable hypothesis of innocence, including the defendant’s own version of the evidence. Newsome v. State, 199 So. 3d 510, 512 (Fla. 1st DCA 2016). “[T]o preserve either or both of the above 3 issues, the precise legal argument as to why the evidence is insufficient to sustain a conviction must be presented to the trial court.” Id. at 513. Because the argument raised on appeal was clearly not preserved, Appellant’s conviction should be affirmed. See Johnson v. State, 287 So. 3d 673, 676 (Fla. 1st DCA 2019) (holding that because the appellant did not raise a circumstantial evidence/reasonable hypothesis argument below, the argument was not preserved for appeal); Charles v. State, 253 So. 3d 1230, 1233 (Fla. 1st DCA 2018) (“Here, as in Newsome, appellant’s counsel failed to preserve a claim that the evidence was wholly circumstantial . . . .”). Notwithstanding the fact that the issue on appeal was not preserved, the majority reverses Appellant’s conviction on the basis of Thomas v. State, 212 So. 3d 410 (Fla. 4th DCA 2017), finding this case materially indistinguishable. Were the issue properly before us, I would disagree with the majority’s reliance upon Thomas. In that case, the Fourth District reversed the appellant’s conviction for possession of cocaine with intent to sell. Id. at 411. The appellant there was seen tossing what was determined to be a pill container that contained 3.31 grams of crack cocaine; a second container holding .19 grams of crack cocaine was found in the area. Id. A search of the appellant’s person revealed $1,086, but no drug paraphernalia or other contraband items. Id. The State charged the appellant with possession of 3.5 grams of cocaine with intent to sell or deliver. Id. A sheriff’s deputy, who testified as an expert witness for the State, concluded that the appellant’s possession of the cocaine was with the intent to sell, explaining that the small pieces of cocaine recovered from the appellant were similar to those he typically saw on the streets and the pieces were worth anywhere between five and ten dollars each. Id. He conceded, however, that some of the pieces of crack in the container were smaller than usual and not ideal for street level sales. Id. He acknowledged that it was just as likely that the smaller pieces of cocaine possessed by the appellant were for his personal use. Id. He also opined that the lack of any drug paraphernalia in the appellant’s possession indicated that he was not a drug user. Id. Although there was no evidence indicating the source of the money found in the appellant’s pocket, the deputy testified that the twenty-dollar bills were not inconsistent with money paid for the cocaine pieces 4 because confidential informants working for his unit often spent twenty to forty dollars on lower-priced cocaine pieces. Id. at 411- 12. The trial court denied the appellant’s motion for judgment of acquittal. Id. at 412. In reversing the appellant’s conviction, the Fourth District reasoned that the fact that the evidence was equally consistent with the theory that the appellant possessed the cocaine for personal use was tantamount to reasonable doubt. Id. The Fourth District noted that the aggregate weight of the cocaine was relatively small, and the cocaine was not individually packaged. Id. As for the deputy’s testimony, the Fourth District set forth, “Although the state’s expert witness testified that appellant’s possession of the cocaine was consistent with an intent to sell, he also acknowledged that it could have been for personal use.” Id. According to the appellate court, the fact that the appellant did not possess any sort of drug paraphernalia for smoking the cocaine was an insufficient basis for concluding that the amount was not for personal use, but for sale, and it found no other suspicious circumstances to suggest the appellant’s intent to sell the cocaine he possessed. Id. at 413. In this case, Officer Coates indicated that the amount of drugs found on Appellant’s person was consistent with an intent to sell, as was the fact that he had different types of drugs in his possession. He further testified that crack cocaine, which Appellant had, is typically sold by the rock or piece, and a razor blade, which Appellant also had, is used to cut it apart into sellable pieces. Officer Coates did not believe the crack was possessed for personal use because of the amount Appellant had and the lack of smoking devices in his possession. Importantly, in contrast to the deputy’s testimony in Thomas that it was just as likely that the smaller pieces of cocaine possessed by the appellant were for personal use, Officer Coates gave no such testimony regarding the drugs at issue. As such, the majority’s reliance upon Thomas is misplaced. Under the facts of this case, the question of intent was rightfully presented to the jury. See State v. Adams, 164 So. 3d 802, 805 (Fla. 1st DCA 2015) (noting that whether a defendant had a certain intent is generally a question for the jury). 5 For the foregoing reasons, I would affirm Appellant’s conviction. _____________________________ Office of Candice K. Brower, Criminal Conflict & Civil Regional Counsel, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant. Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee. 6