Full Opinion

Third District Court of Appeal State of Florida Opinion filed March 18, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D18-324 Lower Tribunal No. 16-10036A ________________ Karen Potter, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Mark Blumstein, Judge. Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Asad Ali and Jonathan Tanoos (Tampa), Assistant Attorneys General, for appellee. Before EMAS, C.J., and MILLER and LOBREE, JJ. EMAS, C.J. Karen Potter appeals her conviction and sentence for purchase of oxycodone, as a lesser offense to the charged crime of trafficking in oxycodone. Potter contends the trial court erred in refusing her request for a “valid prescription defense” jury instruction. We affirm, as any error in denying the requested instruction was harmless beyond a reasonable doubt. FACTS AND PROCEDURAL BACKGROUND Karen Potter was charged with the following offenses: - Trafficking in oxycodone; - Possession with intent to sell heroin; - Possession of cocaine; and - Possession of cannabis. Following a jury trial, Potter was found guilty of possession of cocaine, possession of cannabis, possession of heroin, and the lesser-included offense of purchase of (rather than trafficking in) oxycodone. In this appeal, Potter challenges only her conviction and sentence for purchase of oxycodone. At trial, the defense acknowledged that Potter was guilty of possession of marijuana and cocaine, but maintained she was not guilty of the heroin and trafficking in oxycodone charges. As to the trafficking in oxycodone charge, Potter contended that the fifty-eight oxycodone pills, seized by police at the time of her arrest on May 13, 2016, were left over from a 2014 oxycodone prescription that had 2 been validly issued to, and filled by, her. Under this theory, as advanced by Potter’s counsel at trial, Potter split up her medication, placing some of the pills in an old prescription bottle with the label torn off (the pill bottle confiscated by police), and leaving the rest in the original, valid prescription bottle (however, no such prescription bottle was recovered by police or offered as evidence at trial). The following evidence was presented at trial: In May 2016, police were investigating and surveilling a motel room reserved under the name Antoinette Bailey (the co-defendant). Police suspected the room was being used for the sale of narcotics. After months of observing Bailey and Potter using the room, police secured a search warrant. During their search, police found heroin, cocaine, marijuana, money, and drug paraphernalia, including a marijuana grinder, hypodermic needles, and small bags of different colors, many of which contained heroin or other drugs. In a purse belonging to Bailey, police found a Walgreens prescription pill bottle with the label removed. The Walgreens prescription bottle contained fifty- eight oxycodone pills. The fifty-eight pills weighed a total of twenty-nine grams (each pill weighed 500 milligrams). Police did not find any other prescription bottle for oxycodone. 3 Prior to trial, co-defendant Bailey pleaded guilty to trafficking in oxycodone and possession of heroin with the intent to sell. She agreed to cooperate with the State and testify against Potter. At trial, Bailey testified: • Bailey was addicted to, or dependent on, oxycodone. Potter was a drug dealer and would sell heroin to earn money to buy oxycodone pills for Bailey. • A week before the arrest, Potter bought the oxycodone pills later found by police in Bailey’s purse. The oxycodone was in a Walgreens pill bottle with the label ripped off. During execution of the search warrant, Potter put the Walgreens prescription bottle (containing the fifty-eight oxycodone pills) in Bailey’s purse. • Potter kept the oxycodone prescription bottles from an expired prescription. She used the expired prescription bottles to store the oxycodone pills she purchased from dealers, thereby giving her an “explanation” if she was ever caught by police with the pills in her possession (i.e., she could tell the police that the pills were from an old prescription). The State introduced recordings of two jail calls between Bailey and Potter. The first call included the following exchange: 4 Bailey: Can’t you understand what I’m saying? So the one that you use for the - - the one that you gave him, is it going to match the - - the pills - - Potter: I ain’t give them no (inaudible). I gave them the pharmacy paper. Bailey: What pharmacy paper? Potter: (Inaudible) that I get the pills. They got the pharmacy paper from – from VH, you know, what’s all on that pharmacy paper when I was getting the (inaudible), when I was getting the Dilaudid, all that’s on the paper. They gonna see all that I’m in bad pain. I should have put that bottle - - that shit in one of my bottles I had. Then we wouldn’t be going through this shit. If it ain’t had no paper on it (inaudible). When the thing first got (inaudible). Bailey explained to the jury that, in this conversation, Potter was saying she should have put the oxycodone pills—which Potter bought from a drug dealer—in the bottle with the expired prescription. This testimony was supported by a second jail call, during which the following exchange took place between Potter and Bailey: Bailey: That - - that week - - that’s (inaudible) I told you that I had had a funny feeling before we had got arrested that they -- Potter: Yeah. Bailey: At the same time you had brought those pills I had a funny feeling that - - that - - Potter: Well, you shouldn’t have let me buy them. You should have just went on your instinct. That’s why we all fucked up them pills. I’m telling you what it is. (Inaudible) it’s them pills because they (inaudible) and they know people sell them. They asked me (inaudible) pills and none of that shit they arrested. And I told them if they would have asked 5 me I would have told them they was mine, you know what I’m saying? They were supposed to ask me, well, whose pills are these? And I would have said mine and they prescribed. But they (inaudible) no questions. (Emphasis added). The defendant did not testify at trial, but the defense did introduce into evidence a two-page ledger from VH Pharmacy. The ledger contained Potter’s name, and indicated she filled prescriptions for oxycodone once a month for six months between April 2014 and September 2014 (twenty months before the arrest in this case). The first five prescriptions (April-August 2014) were for 120 oxycodone “10-325 MG” [325 milligram] tablets, and the final prescription (September 2014) was for 120 “15MG” [15 milligram] tablets. The defense requested the trial court provide the jury with standard instruction 3.6(n), which provides in pertinent part: It is a defense to the charge of [possession] [trafficking via possession] for a person to possess a controlled substance which [he] [she] lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice. Fla. Std. J. Inst. (Crim.) 3.6(n). The trial court considered the evidence presented at trial, including the Walgreens pill bottle with the label removed; the testimony of co-defendant Bailey; the testimony of the chemist who explained that the fifty-eight oxycodone pills seized from Potter weighed a total of twenty-nine grams (i.e., each pill weighed 500 6 milligrams); and the VH Pharmacy ledger, which indicated that oxycodone pills described as 325 milligrams and 15 milligram tablets were issued by prescription to Potter between April and September 2014. The trial court denied Potter’s request for the valid prescription defense instruction, finding insufficient evidence to support the jury instruction. The jury found Potter guilty of the lesser-included offense of purchase of (rather than trafficking in) oxycodone. She was sentenced to ten years in prison followed by four years of probation. This appeal followed. Potter points primarily to two aspects of the evidence which she contends required the trial court to give the requested jury instruction: (1) Potter’s 2014 prescription for oxycodone; and (2) recorded jail calls between Potter and co- defendant Bailey in which Potter remarked that if police had questioned her about the oxycodone, she would have told them the pills had been prescribed to her. We hold that even if the trial court erred in denying Potter’s request for an instruction on a valid prescription defense, any such error was harmless. ANALYSIS AND DISCUSSION The Valid Prescription Defense This Court has explained: Although we review a trial court's decision to exclude a requested jury instruction for an abuse of discretion, that discretion is substantially circumscribed when the instruction relates to a defendant’s valid theory of defense, as the trial court must give the requested instruction if there 7 is any evidence supporting the defendant's defense. Thus, we must determine whether there was any evidence introduced that would support the defendant's request for [a valid prescription defense] instruction. Rodriguez v. State, 147 So. 3d 1066, 1068 (Fla. 3d DCA 2014) (citations omitted) (emphasis added). A person can legally possess a controlled substance if that controlled substance was obtained pursuant to a valid prescription. As section 893.13(6)(a), Florida Statutes (2016) provides, in pertinent part: A person may not be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice. . . . See also Wagner v. State, 88 So. 3d 250, 252 (Fla. 4th DCA 2012) (holding: “A valid prescription is a complete defense to trafficking and a defendant is entitled to a jury instruction on this defense”). Potter asserts that the valid prescription defense is applicable to the instant case, that there was sufficient evidence to support the giving of the standard instruction on her theory of defense, and that the trial court reversibly erred in refusing to give the jury instruction. In response, the State posits there are three alternative bases to affirm the conviction and sentence: First, the valid prescription defense is inapplicable because Potter was ultimately convicted of purchase of oxycodone (rather than trafficking in or possession of oxycodone). Second, even if the valid prescription defense is 8 applicable to purchase of oxycodone, insufficient evidence was presented to support the giving of the valid prescription defense jury instruction. Finally, even if the defense was applicable and warranted by the evidence, any error in failing to instruct the jury in this case was harmless. Applicability of the Valid Prescription Defense to Purchase of a Controlled Substance The valid prescription defense, as provided by section 893.13(6)(a) has been incorporated into Florida Standard Jury Instruction (Crim.) 3.6(n), and provides: It is a defense to the charge of [possession] [trafficking via possession] for a person to possess a controlled substance which [he] [she] lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice. While it is true that this instruction, by its terms, addresses only possession and trafficking by possession charges, it remains unclear whether such a defense applies to the purchase of a controlled substance. For example, the comments accompanying Florida Standard Jury Instruction (Crim.) 25.2 (Sale, Purchase, Manufacture, Delivery, or Possession with Intent), provide: The crime of Possession of a Controlled Substance is not a necessarily lesser-included crime of Manufacture of a Controlled Substance. Anderson v. State, 447 So. 2d 236 (Fla. 1st DCA 1983). Also, Possession of a Controlled Substance is not a necessary lesser-included offense of Sale of a Controlled Substance. State v. McCloud, 577 So. 2d 939 (Fla. 1991). It is unclear if the courts will determine that a person charged with Purchase or Delivery of a Controlled Substance is necessarily charged with Possession of a Controlled Substance. 9 (Emphasis added). If the valid prescription defense is available only to a charge of possession or trafficking (by possession) of controlled substances, and is not available for the lesser offense of purchase, then any error in failing to give the instruction in the instant case would be, at most, harmless. See, e.g., Jackson v. State, 699 So. 2d 306 (Fla. 1st DCA 1997) (holding that where defendant was charged with first-degree murder, but convicted of second-degree murder, error in failing to give requested jury instruction on voluntary intoxication was harmless because that defense is not applicable to general-intent crime of second-degree murder). In the instant case, Potter was charged with trafficking in oxycodone, and the Information alleged, in the alternative, that she trafficked in oxycodone by sale, purchase, manufacture, delivery or possession. See § 893.135(1)(C)3.c., Fla. Stat. (2016) (providing that a person who sells, purchases, manufactures, delivers, brings into the state, or possesses seven grams or more of oxycodone commits the offense of trafficking in oxycodone). She was convicted of the lesser-included offense of purchase of oxycodone (in an amount below the statutory trafficking threshold). Further, the evidence presented at trial shows that Potter actually possessed the oxycodone she was found guilty of purchasing. While one can envision a scenario in which a defendant might purchase a controlled substance without ever actually or constructively possessing it, such is not the circumstance presented by 10 the evidence in the instant case. It would therefore appear that, by her act of purchasing the oxycodone in this case, Potter did indeed possess it. Under these circumstances, the valid prescription defense would appear to be applicable. Harmless Error However, given our disposition, we need not reach the question of whether section 893.13(6)(a) and Florida Standard Jury Instruction 3.6(n) apply to the offense of purchase of controlled substances generally, or to this case in particular. Even if such a defense is applicable, and even if Potter was entitled to such an instruction in this case, 1 we may nonetheless affirm if the error is harmless. The 1 The State contends that, even if the valid prescription defense was applicable here, the trial court did not err in refusing to give the jury instruction because there was insufficient evidence to support the giving of such an instruction. Although we need not reach this question, we nevertheless note the relatively low threshold required to entitle a defendant to an instruction on her theory of defense. See, e.g., Smith v. State, 424 So. 2d 726, 732 (Fla. 1982) (holding that “a defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support such instructions. If there is any evidence of [the defense], an instruction should be given. The trial judge should not weigh the evidence for the purpose of determining whether the instruction is appropriate”) (citations omitted); Rodriguez v. State, 147 So. 3d 1066, 1068 (Fla. 3d DCA 2014) (observing: “Although we review a trial court's decision to exclude a requested jury instruction for an abuse of discretion, that discretion is substantially circumscribed when the instruction relates to a defendant's valid theory of defense, as the trial court must give the requested instruction if there is any evidence supporting the defendant's defense.”) (citations omitted). And while we may agree with the State that the evidence relied upon by Potter was weak at best, the standard is whether there is “any evidence” to support the defendant’s theory that the pills were lawfully obtained pursuant to a valid prescription, id., and “the trial court should consider the evidence presented without weighing the evidence,” as this is “a task for the jury.” Vila v. State, 74 So. 3d 1110, 1112 (Fla. 5th DCA 2011). 11 burden is upon the State, as the beneficiary of the error, to establish beyond a reasonable doubt that the error complained of did not contribute to the verdict. See State v. DiGuilio, 491 So. 2d 1129, 1135-36 (Fla. 1986); Nery v. State, 585 So. 2d 427 (Fla. 3d DCA 1991). The harmless error test focuses on the effect of the error on the trier of fact. Johnson v. State, 53 So. 3d 1003, 1007 (Fla. 2010). 2 We hold that, under the circumstances of this case, the State has satisfied its burden of establishing, beyond a reasonable doubt, that any error did not contribute to the jury’s verdict and was therefore harmless. In so concluding, we have considered the following evidence and circumstances presented at trial, much of which was unrebutted: • Potter would purchase oxycodone pills for Bailey, who was addicted to oxycodone. Potter sold heroin to earn money to buy the oxycodone for Bailey. A week before Potter and Bailey were arrested, Potter bought the oxycodone pills at issue. They were placed in a Walgreens prescription bottle, and Potter ripped the label off the bottle. 2 The defense contends that the trial court’s failure to give the requested instruction was fundamental error. We do not agree. Indeed, by finding the error is harmless, we are necessarily concluding that the error in this case cannot be characterized as fundamental. See Reed v. State, 837 So. 3d 366, 369-70 (Fla. 2002) (observing: “[W]e take this occasion to clarify that fundamental error is not subject to harmless error review. By its very nature, fundamental error has to be considered harmful. If the error was not harmful, it would not meet our requirement for being fundamental.”) 12 • Potter later told Bailey that, while the police were conducting the search of the apartment, Potter had placed the oxycodone pills in Bailey’s purse. • Potter had prescription bottles from an expired oxycodone prescription. She kept the expired prescription bottles to store the oxycodone pills she would purchase from dealers, thereby giving her an “explanation” if she was ever caught by police with the pills in her possession (i.e., she could say the pills were from a prescription). • In the motel room used by Potter and Bailey, police found fifty-eight oxycodone pills, thirty blue baggies of heroin (2.1 grams), thirty-four orange baggies of heroin (4.1 grams), marijuana and cocaine, and $503 in currency, a silver grinder and numerous empty baggies (containing drug residue) of different colors. • Potter presented evidence that she had a 2014 oxycodone prescription, which she filled (between April and September 2014) at VH Pharmacy. However, the oxycodone pills prescribed in the 2014 prescription were of a different weight than the fifty-eight oxycodone pills discovered in the motel room by police in 2016. In other words, there was no nexus established between the 2014 VH Pharmacy prescription and the fifty- eight oxycodone pills Potter was found guilty of purchasing in 2016. 13 • The other evidence relied upon by Potter, as the basis for her valid prescription defense, was her own statement made during one of the two jail calls between herself and Bailey. However, the statement Potter made during that call (“They were supposed to ask me, well, whose pills are these? And I would have said mine and they prescribed”) was self- evidently self-serving. 3 More importantly, as placed in proper context by co-defendant Bailey during her trial testimony, such an “explanation” was nothing more than a lie Potter would have fed to the police in the hopes of preventing her and Bailey from being arrested. Indeed, during that very same phone conversation, Potter chides Bailey for not acting on a gut feeling that something bad was going to happen when Potter bought the oxycodone pills from a dealer. Potter told Bailey: “Well, you shouldn’t have let me buy them. You should have just went on your instinct.” These are the very same oxycodone pills which Potter now seeks to portray as having come from a 2014 prescription. The evidence relied upon by Potter for her theory that the oxycodone was obtained pursuant to a valid prescription was not merely weak but flimsy. By 3 As the Florida Supreme Court recognized in Smith, 424 So. 2d at 732, a self- serving out-of-court statement testified to by a third party (i.e., not subject to cross- examination) seems insufficient to provide a basis for a requested instruction on a theory of defense. Even if it is somehow sufficient, any error in its denial may be deemed harmless. 14 contrast, the State’s evidence establishing that Potter purchased the oxycodone from a drug dealer and not pursuant to a valid prescription, was overwhelming. 4 The valid prescription defense was also presented to and considered by the jury during closing arguments. Defense counsel argued to the jury that Potter’s valid 2014 prescription was a defense to the charge and provided a reason why Potter could not be guilty of trafficking in oxycodone: “[Y]our reasonable doubt can be that there’s prescriptions. It’s common knowledge. It’s not illegal to have your own prescriptions. The doctor gave them to you. You’re allowed to have them. That’s not trafficking. That’s not a crime. It’s your medication.” Importantly, the State did not attempt to denigrate the defense or argue that such a defense is not permitted under the law. Indeed, to the extent that the State 4 We recognize the harmless error test first adopted by the Florida Supreme Court in DiGuilio should not be equated with an “overwhelming evidence of guilt” analysis. State v. Diguilio, 491 So. 2d 1129, 1139 (Fla. 1986) (explaining: “The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.”) Nevertheless, a reviewing court applying the harmless error test can consider the overwhelming nature of the State’s evidence where a defendant’s guilt is established by evidence unrelated to the claimed error. See, e.g., Cuervo v. State, 967 So. 2d 155, 178 (Fla. 2007); Chavez v. State, 832 So. 2d 730, 753 (Fla. 2002); Mora v. State, 211 So. 3d 308 (Fla. 3d DCA 2017); Thorne v. State, 271 So. 3d 177, 185 (Fla. 1st DCA 2019). 15 presented argument on this issue, it simply pointed out the lack of credible evidence to support Potter’s defense. In other words, the jury was presented with a valid prescription defense, but was not given a formal jury instruction advising the jurors that if a defendant has a valid prescription for the oxycodone in their possession, she cannot be convicted of possession of (or trafficking by possession in) oxycodone. Compare with Barkley v. State, 750 So. 2d 755, 756 (Fla. 2d DCA 2000) (finding that co-occupant of a home was entitled to the jury instruction on the privilege of non-retreat and the failure to provide the instruction was not harmless error where, “[i]n closing argument, the prosecutor emphasized Barkley's duty to retreat.”) Finally, the jury necessarily found that the State did not prove trafficking by possession in oxycodone, as it found Potter guilty only of the lesser-included offense of purchase of oxycodone. Implicit in this determination was a finding by the jury that, as testified to by co-defendant Bailey, Potter purchased the oxycodone from a third party (i.e., a drug dealer), and not from a pharmacy. Surely the jury would not have found Potter guilty of purchasing cocaine (i.e., from the drug dealer as testified to by Bailey and as corroborated by the jail calls between Potter and Bailey) if they had any reasonable doubt whether Potter obtained the oxycodone pills from a valid prescription. CONCLUSION 16 Even if the valid prescription defense was applicable in the instant case to the lesser-included offense of purchase of oxycodone, and even if Potter presented sufficient evidence to entitle her to the jury instruction on that defense, we hold that any error in denying the requested jury instruction was harmless beyond a reasonable doubt. Affirmed. 17