Joshua A. Chandler v. State , 185 So. 3d 1286 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JOSHUA ANDREW CHANDLER,
Appellant,
v. Case No. 5D15-696
STATE OF FLORIDA,
Appellee.
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Opinion filed February 26, 2016
Appeal from the Circuit Court
for Marion County,
Willard Pope, Judge.
James S. Purdy, Public Defender,
and Jeri M. Delgado, Assistant Public
Defender, Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Nora Hutchinson Hall,
Assistant Attorney General, Daytona
Beach, for Appellee.
WALLIS, J.
Joshua Andrew Chandler ("Appellant") appeals his conviction and sentence for
possession of drug paraphernalia. Finding that the State failed to offer evidence sufficient
to withstand Appellant's motion for judgment of acquittal, we reverse and remand with
instructions to vacate Appellant's conviction and sentence.
On August 25, 2014, Marion County Sheriff's Deputy Daniel Moore pulled over a
vehicle, which Appellant was a passenger, for driving erratically. Deputy Moore noticed
an odor of marijuana emanating from the vehicle. Deputy John Rawls arrived on scene
and assisted Deputy Moore in searching the vehicle. The officers discovered a clear
plastic bag containing a substance, later confirmed to be methamphetamine, on the floor
of the passenger side. In that same area, the officers located Appellant's wallet, which
contained a rolled-up dollar bill.
The State charged Appellant by information with possession of a controlled
substance and possession of drug paraphernalia. Appellant moved for judgment of
acquittal on both charges, and the trial court denied his motion. The jury returned verdicts
of not guilty as to possession of a controlled substance and guilty as to possession of
drug paraphernalia.1
Section 893.147(1)(b), Florida Statutes (2014), makes it "unlawful for any person
to use, or to possess with intent to use, drug paraphernalia . . . [t]o inject, ingest, inhale,
or otherwise introduce into the human body a controlled substance." In determining
whether an item qualifies as drug paraphernalia, the court may consider, inter alia, the
proximity of the item to any controlled substances, the existence of residue on the item,
whether the item can be used for legitimate purposes, and expert testimony concerning
the item's use. § 893.146, Fla. Stat. (2014). "The presence of even a minuscule quantity
of drug residue is sufficient circumstantial evidence to prove the element of intent to use."
Nixon v. State, 680 So. 2d 506, 507 (Fla. 1st DCA 1996) (citing Steele v. State, 561 So.
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Inexplicably, the State repeatedly asserts in its answer brief that the jury
convicted Appellant for possession of a controlled substance. The State did not correct
this mistake despite Appellant's reference to the same in his reply brief.
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2d 638 (Fla. 1st DCA 1990)). However, if the alleged paraphernalia tests negative for
drug residue, the State must introduce other evidence to demonstrate possession of the
item with intent to use it for an illicit purpose. T.E.D. v. State, 627 So. 2d 118 (Fla. 5th
DCA 1993).
Here, the officers neither testified that the dollar bill contained residue nor tested
the dollar bill for the same. The officers' testimony that drug users commonly use rolled-
up bills to inhale narcotics does not suffice to support a conviction for possession of drug
paraphernalia under these circumstances. Although the officers did find
methamphetamine in proximity to the alleged paraphernalia, the jury acquitted Appellant
of the possession charge, and the State offered no further evidence to prove Appellant
intended to use the dollar bill for an illicit purpose. See Williams v. State, 529 So. 2d 345,
348 (Fla. 1st DCA 1988) (reversing defendant's convictions for possession of a controlled
substance and possession of paraphernalia where "[t]he state presented no evidence that
[defendant] used or intended to use the scale for an illicit purpose. In fact, no trace of
cocaine or any other illegal substance was found on the scale, nor did the state prove
that the scale was 'designed for use in weighing or measuring controlled substances'").
Accordingly, we reverse and remand to the trial court with instructions to vacate
Appellant's conviction and sentence for possession of drug paraphernalia.
REVERSED and REMANDED with Instructions.
PALMER and EDWARDS, JJ., concur.
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