Opinion
Case No. 5D18-1242
08-23-2019
Ezell HARRIS, Jr., Appellant, v. STATE of Florida, Appellee.
Paula C. Coffman, Orlando, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
Paula C. Coffman, Orlando, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
EVANDER, C.J.,
In 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.
Although 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.
Florida 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.
The elements of the subjective entrapment defense are codified in section 777.201, Florida Statutes (2016):
(1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
(2) A person prosecuted for a crime shall be acquitted if the person proves by a preponderance of the evidence that his or her criminal conduct occurred as a result of an entrapment. The issue of entrapment shall be tried by the trier of fact.
In 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).
Contrary 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 instant offenses.
Harris' reliance on our decision in Perez v. State , 856 So. 2d 1074 (Fla. 5th DCA 2003), is misplaced. There, we simply held that evidence of the defendant's prior conviction for possession of cannabis with intent to sell was admissible to show that the defendant was predisposed to illegally sell drugs and, accordingly, was relevant to rebut an entrapment defense. Perez does not, in any way, limit proof of predisposition by criminal history to prior convictions.
Furthermore, 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 accused:
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 rule 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 ; see also 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 would have been admissible to show Harris' predisposition to commit the offenses in the instant case, the trial court properly denied Harris' motion in limine.
§ 90.404(2), Fla. Stat. (2016) ; Williams v. State , 110 So. 2d 654 (Fla. 1959).
AFFIRMED.
ORFINGER and GROSSHANS, JJ., concur.