RAYMOND JOSEPH GALLAGHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gallagher was convicted of delivering marijuana to J. Broussard, but the appellate court reversed because the circumstantial evidence was insufficient to prove delivery as a matter of law, despite evidence of marijuana possession.
The evidence was insufficient as a matter of law to support a conviction for delivery of marijuana. While the evidence proved possession, it did not prove delivery, as the observed conduct was inconclusive and equally consistent with innocence as with guilt.
[1] Circumstantial evidence is insufficient as a matter of law if it is inconclusive and equally consistent with innocence as it is with guilt.
[2] Evidence of marijuana possession does not, in itself, establish delivery of marijuana.
Previewing 2 of 2 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The evidence was inconclusive and equally consistent with innocence as it was with guilt.”
Establishes the standard for insufficient circumstantial evidence requiring reversal
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePolice officers observed Gallagher meet with J. Broussard and another passenger at a residence under surveillance. The three walked to a barn together…
The full statement of facts, procedural history, and disposition for this case are member content.
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WALDEN, Judge.
Defendant appeals his conviction of Delivery of Marijuana to Another, To-wit: J. Broussard.
We have reviewed the circumstantial evidence which led to the guilty verdict and conclude that it was insufficient as a matter of law. The evidence was inconclusive and equally consistent with innocence as it was with guilt. Pacetti v. State, 157 So. 2d 445 (2nd D.C.A.Fla.1963).
To illustrate the lack of delivery, we accept the State’s version of the facts as follows :
“Philip McCann, with the Broward County Sheriff’s Department, testified that the police observed a Cadillac, whose driver was later identified as J. Broussard, drive up and park at the residence under surveillance. Broussard and the passenger got out and were met by Appellant who walked up to them. The officers observed the three have a conversation while walking to the barn. Appellant and Broussard returned after only several minutes, and Broussard opened the trunk of the Cadillac. Appellant and Broussard then appeared to examine a package which Brous-sard took out of the trunk. Then they closed the trunk, were met by the passenger, and returned to the residence. The officer did not know what was in the package. The police executed their warrant, and the vehicle was searched. Marijuana was found in the trunk of the form of spillage. ‘(I)t appeared as though somebody had placed something down and it spilled over the sides of what it had already been in.’
“Appellant has been observed earlier in the day stuffing some of the contents of the packages in the trailer into a green plastic bag. The trailer had more bundles in when the officers first saw Appellant open the trailer than when the picture of the trailer was taken around 11: 45 o’clock, at night when the arrest was made.”
While there is evidence of marijuana possession,1 there is none as concerns delivery.
The judgment of conviction as to Count Three of the information in question is reversed and the clause remanded with in structions to discharge appellant as concerns his conviction under this Count only.
Reversed and remanded.
MAGER and DOWNEY, JJ., concur,
. Appellant was convicted of such possession in a separate count.
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Citator
Cited By
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Jones v. State, 466 So. 2d 301 (Fla. 3d DCA 1985)…74) (state’s evidence deemed insufficient to exclude hypothesis that defendant’s companion placed bag of marijuana under car in which defendant and companion were riding; conviction for unlawful possession of marijuana reversed); Gallagher v. State, 291 So. 2d 252 (Fla. 4th DCA 1974) (state’s evidence deemed insufficient to establish a delivery of marijuana; delivery of marijuana conviction reversed); Spina v. State, 203 So. 2d 20 (Fla. 3d DCA 1967) (state's evidence deemed insufficient to establish that defe…
Authorities Cited
- Pacetti v. State, 157 So. 2d 445 (Fla. 2d DCA 1963)