West Palm Beach, Florida - Criminal Defense lawyer represented defendant with appealing conviction for possession with intent to sell a counterfeit substance.

While on patrol, two detectives with the Fort Pierce Police Department

noticed a vehicle driving erratically and initiated a traffic stop. Appellant

was a passenger in the vehicle. As one detective patted appellant down for

weapons, he found a cigar tube in appellant's pocket with a substance

inside of it. The detective suspected drugs and removed what he believed

to be rocks of crack cocaine from the tube. However, a cobalt test on the

rocks was negative. The detective also found a cocaine pipe, which

appellant identified as his. No large amount of cash was found on

appellant.

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After being read his rights, appellant stated that he and the driver and

a third individual, not in the vehicle, had pooled their money together to

buy eighteen pieces of what they thought was crack cocaine. Appellant

stated that the substance they bought was not "real” cocaine. Later testing

by the crime lab confirmed that the rocks were not cocaine, but were made

of acetaminophen, aspirin, and caffeine.

The State filed an information charging appellant in Count I with

possession of a counterfeit controlled substance with intent to sell, a

violation of section 831.31(a), Florida Statutes (2020); in Count II, it

charged him with use or possession of drug paraphernalia, a violation of

section 893.147(1), Florida Statutes (2020).

At trial, the detective who discovered the cigar tube testified that, based

upon his narcotics investigation training, it was not normal for someone

who is carrying drugs for personal use to carry the drugs in a cigar tube.

The cigar tube packaging was consistent with street-level sales of crack

cocaine. Through his training and experience, he testified that someone

who sells narcotics normally has a lot of cash on them and a container for

the drugs, such as the cigar tube. A seller may have a scale and a ledger,

although a ledger may be kept on a cell phone. He also testified that the

eighteen rocks within the tube was not a normal amount for three people

to use. The other detective present at appellant's arrest gave similar

testimony, reiterating that normally someone selling drugs would have a

lot of money on their person.

Appellant moved for a judgment of acquittal, contending that the State

had not proved its case under the statute, particularly with respect to the

intent to sell. The court denied the motion.

The jury found appellant guilty of possession of a counterfeit controlled

substance with intent to sell and possession of drug paraphernalia.

Appellant was sentenced to serve 48 months in prison on Count I and 354

days on Count II, to run concurrently, with credit for time served of 354

days on each count.

This court reviews a denial of a motion for judgment of acquittal de

novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). "Generally, an

appellate court will not reverse a conviction which is supported by

competent, substantial evidence.” Id. (citing Donaldson v. State, 722 So.

2d 177 (Fla. 1998); Terry v. State, 668 So. 2d 954, 964 (Fla. 1996)). If,

after viewing the evidence in the light most favorable to the State, a rational

trier of fact could find the existence of the elements of the crime beyond a

reasonable doubt, sufficient evidence exists to sustain a conviction. Id.

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Appellant argues that section 831.31 requires that the counterfeit

substance either be labeled or identified as a controlled substance, and

the evidence at trial failed to show either. We agree. Although the issue

of labelling was not directly raised in the motion for judgment of acquittal,

we conclude that the failure to prove the charged offense was fundamental

error. See F.B. v. State, 852 So. 2d 226, 230 (Fla. 2003) (stating "a

conviction imposed upon a crime totally unsupported by evidence

constitutes fundamental error” (quoting Troedel v. State, 462 So. 2d 392,

399 (Fla. 1984)); see also J.B. v. State, 304 So. 3d 352 (Fla. 4th DCA 2020)

(noting that "[w]here the state's evidence does not establish that a charged

crime has occurred, such a failure of proof constitutes fundamental

error”); Griffin v. State, 705 So. 2d 572, 574 (Fla. 4th DCA 1998) (finding

that "[a] conviction is fundamentally erroneous when the facts

affirmatively proven by the State simply do not constitute the charged

offense as a matter of law”).

Section 831.31, Florida Statutes (2020), addresses "[c]ounterfeit

controlled substance; sale, manufacture, delivery, or possession with

intent to sell, manufacture, or deliver[.]” See State v. Hayes, 446 So. 2d

1185, 1186 (Fla. 4th DCA 1984) (analyzing prior version of the statute).

The statute is directed at "the problem of the distribution of counterfeit

controlled substances, i.e., substances that may be identified as one thing

but are really another.” Id. The statute provides:

(1) It is unlawful for any person to sell, manufacture, or

deliver, or to possess with intent to sell, manufacture, or

deliver, a counterfeit controlled substance. Any person who

violates this subsection with respect to:

(a) A controlled substance named or described in s.

893.03(1), (2), (3), or (4) is guilty of a felony of the third degree,

punishable as provided in s. 775.082, s. 775.083, or s.

775.084.

§ 831.31(1)(a), Fla. Stat. (2020).

Cocaine is a substance named and described in section 893.03(2). A

counterfeit controlled substance is defined in section 831.31(2) as follows:

(a) A controlled substance named or described in s. 893.03

which, or the container or labeling of which, without

authorization bears the trademark, trade name, or other

identifying mark, imprint, or number, or any likeness thereof,

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of a manufacturer other than the person who in fact

manufactured the controlled substance; or

(b) Any substance which is falsely identified as a controlled

substance named or described in s. 893.03.

§ 831.31(2), Fla. Stat. (2020). Thus, for the State to prove a violation of

section 831.31(1)(a), the State must present evidence either of some

labelling, which contains some identifying mark, number, or likeness of a

trademark of a manufacturer other than the person who in fact

manufactured the product. Alternatively, the State must prove that the

substance is falsely identified as a controlled substance listed in section

893.03.

The Fifth District explained the statutory requirements in J.L.F. v.

State, 887 So. 2d 432, 434 (Fla. 5th DCA 2004):

Clearly, this statute requires that a defendant either place the

substance in a container with a false label that identifies the

substance as a controlled substance, falsely label the

substance itself, or falsely identify the substance to another.

See Damen v. State, 793 So. 2d 106, 109 (Fla. 2d DCA 2001)

("[P]ackaging the items to look like crack cocaine did not

constitute the necessary false identification of the

substance.”); Durr v. State, 583 So. 2d 424 (Fla. 1st DCA 1991)

(holding that the defendant's possession of a clear plastic bag

containing twelve rocks of what appeared to be cocaine, but

was not, did not support a conviction for possession of a

counterfeit substance with intent to distribute); Adderly v.

State, 571 So. 2d 557 (Fla. 1st DCA 1990) (holding that

placing fake crack cocaine in a nondescript, unmarked and

unlabeled plastic bag was not sufficient to establish the act of

mislabeling under section 831.31).

Because the crime requires the mislabeling of the container or the false

identification of the substance, appellant's eighteen rocks in the cigar tube

which were not cocaine do not meet the definition of a controlled substance

as set forth in section 831.31(2). Further, appellant never identified the

substance as a controlled substance. To the contrary, appellant

specifically told the detective that it was fake cocaine.

As the State failed to prove that the charged crime occurred, we must

reverse his conviction and sentence as to Count I for violation of section

831.31(1)(a), Florida Statutes (2020).1 We affirm the conviction and

sentence on Count II for possession of drug paraphernalia.