FRED GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2009-01-09
No. 5D07-1309
GRIFFIN and SAWAYA, JJ., concur.
999 So. 2d 1098 Florida District Court of Appeal, Fifth District (2009) Positive Treatment
Cited by 9 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Fred Green was convicted of conspiracy to purchase cocaine after a jury trial. On appeal, Green challenged the trial court's denial of his motion for judgment of acquittal, arguing insufficient evidence of an agreement with co-defendant Gibson. The appellate court affirmed the conviction, finding circumstantial evidence sufficient to support a reasonable jury inference of conspiracy.


Holding

The court affirmed the conviction, holding that the jury could reasonably infer from circumstantial evidence that Gibson and Green conspired together to purchase cocaine, based on their travel together, joint presence at the prearranged meeting, Green's use of 'they' when discussing the purchase, their joint retrieval of money, and Gibson's facilitation by warning others to lower their voices.


Headnotes

[1] A motion for judgment of acquittal requires the defendant to admit all facts stated in the motion, all evidence adduced at trial, and every conclusion favorable to the St…

[2] The standard of review for a trial court's denial of a motion for judgment of acquittal is de novo.

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Key Quotes

“The crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Both an agreement and an intention to commit an offense are necessary elements of the crime.”

Establishes the legal standard for conspiracy requiring both agreement and intent

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Facts & Procedural History

Green and Gibson traveled from Pennsylvania to Orlando and met with an undercover DEA agent at a Denny's parking lot to purchase cocaine. Green indica…

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Opinion of the Court
EVANDER, J.

EVANDER, J.

Green was convicted, after a jury trial, of conspiracy to purchase cocaine. On appeal, he contends that the trial court erred in denying his motion for judgment of acquittal. Specifically, Green argues that there was insufficient evidence to establish that he had an agreement with co-defendant, Duane Gibson, to purchase cocaine. We affirm Gi'een’s conviction. When a defendant makes a motion for a judgment of acquittal, he admits all facts stated in the motion, all evidence adduced at trial, and every conclusion favorable to the State that a jury might reasonably infer from the evidence. See Sewall v. State, 783 So. 2d 1171 (Fla. 5th DCA 2001). Our standard of review of the trial court’s denial of Green’s motion is de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla.2002).

Taken in the light most favorable to the State, the evidence established that an agent with the Drug Enforcement Unit of the Orlando Police Department was contacted by a fellow law enforcement officer to assist in an undercover capacity in a drug case. The agent was told that he would be meeting with Green regarding a sale of cocaine that had been prearranged by a confidential informant.

Green and Gibson had travelled from Pennsylvania to Orlando and were staying at a local hotel. After a telephone conversation between the agent and Green to arrange a meeting, the agent, the confidential informant, Green, and Gibson met at a Denny’s parking lot. The agent was wearing a concealed microphone and much of the events were recorded on a DVD by a nearby surveillance team. The negotiations were conducted by the agent and Green. During the negotiations, Green indicated that they were there to purchase one kilo of cocaine and be fronted another kilo. At one point, Green entered the backseat of the agent’s car and used a key to cut into a taped package so that he could see the actual cocaine. Green agreed to a price of $15,000 per kilo and then left with Gibson to retrieve the money. While returning from their hotel, they were arrested. Green was carrying a little over $13,000 in an envelope and $552 in his wallet. Gibson had $225 in his wallet. A search of their hotel room reflected that each defendant had one piece of luggage consistent with an overnight stay.

Although Gibson stood next to Green for much of the negotiations, the only relevant time that he spoke was when a Denny’s employee walked toward (and entered) a vehicle parked next to the agent’s vehicle. Gibson told the others to lower their voices.

The crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Both an agreement and an intention to commit an offense are necessary elements of the crime. Young v. State, 940 So. 2d 543, 544 (Fla. 5th DCA 2006). A conspiracy may be proven with cii'cumstantial evidence and proof of the formal agreement is not necessary. However, evidence that a defendant was merely present at the scene of the crime, had knowledge of the crime, or even aided others in the commission of the crime is insufficient, by itself, to support a conspiracy conviction. Id. Rather, the State’s evidence must show that the defendant entered into an agreement with another to commit the crime and intended to commit the crime. Furthermore, an “agreement” between a defendant and a government agent cannot support a conspiracy conviction. Sheriff v. State, 780 So. 2d 920, 921 (Fla. 4th DCA 2001) (well-settled that where one of the two co-conspirators is government agent, there can be no conspiracy).

Here, Green contends that while the State’s evidence may have shown an agreement between the agent and Green, it was insufficient to show an agreement between Gibson and Green. We disagree. The jury could reasonably have inferred that Gibson conspired with Green to purchase cocaine based on the evidence that they travelled together from Pennsylvania to Orlando for a short visit, that they met the purported seller at a prearranged meeting, that they were both present throughout the negotiations, that Green indicated that “they” were there to purchase cocaine, and that they walked together back to their hotel room to retrieve the money necessary to purchase the cocaine. Furthermore, Gibson helped facilitate the planned transaction by telling the others to keep their voices down so that their illicit negotiations were not overheard by a Denny’s employee. These facts support the conclusion that not only were both co-defendants present at the scene, but also that they had a common purpose to commit the crime of purchase of cocaine. See, e.g., Jimenez v. State, 715 So. 2d 1038 (Fla. 3d DCA 1998) (jury may infer agreement from surrounding circumstances including alleged conspirator’s presence at prearranged site for drug transaction after travelling to Florida for short visit from out-of-state location).

Although we affirm Green’s conviction, we do remand this cause for the entry of an amended court costs order. For some reason, the judge’s pronouncement granting Green’s motion to amend the costs order was never reduced to writing.

AFFIRMED; REMANDED for Entry of Amended Court Costs Order. GRIFFIN and SAWAYA, JJ., concur.


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Citator

Cited By

  • Schlicher v. State, 13 So. 3d 515 (Fla. 4th DCA 2009)
    …al drugs that lead to such sale or purchase.” Leigh, 967 So. 2d at 1104 (citing Pino, 573 So. 2d at 152). Logic demands that the agreement that constitutes the conspiracy must be an agreement to commit the same criminal offense. Cf. Green v. State, 999 So. 2d 1098, 1098 (Fla. 5th DCA 2009) (where the court affirmed the defendant’s conviction for conspiracy to purchase cocaine because the co-conspirators had a common purpose to commit the crime of purchase of cocaine). In a buy-sell transaction, that agreement…
  • Davis v. State, 95 So. 3d 340 (Fla. 5th DCA 2012)
    …the crime is insufficient, by itself, to support a con [*342] spiracy conviction. Rather, the State’s evidence must show that the defendant entered into an agreement with another to commit the crime and intended to commit the crime. Green v. State, 999 So. 2d 1098, 1099 (Fla. 5th DCA 2009) (citations omitted). Here, the State’s evidence was insufficient to establish conspiracy because it did not show an agreement between the defendant and any person to commit the same act of selling, purchasing, delivering,…
  • George v. State, 208 So. 3d 838 (Fla. 5th DCA 2017)
    …y is a separate and distinct crime from the offense which is the object of the conspiracy. See Swindle v. State, 254 So. 2d 811, 812 n.2 (Fla. 2d DCA 1971) (citing Brown v. State, 130 Fla. 479, 178 So. 153 (1938)). As we explained in Green v. State, 999 So. 2d 1098 (Fla. 5th DCA 2009): The crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense. Both an agreement and an intention to commit an offense are necessary elements of the crime. Young v.…

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