Davis v. State, 4D99-1549.

• Decision Date: 03 October 2001
• Docket Number: No. 4D99-1549.,4D99-1549.
• Citation: 804 So.2d 400
• Parties: Antoinette DAVIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

804 So.2d 400

Antoinette DAVIS, Appellant, v. STATE of Florida, Appellee.

No. 4D99-1549.

District Court of Appeal of Florida, Fourth District.

October 3, 2001.

Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Barbara A. Zappi, Assistant

Attorney General, Fort Lauderdale, for appellee.

HAZOURI, J.

Appellant, Antoinette Davis, appeals from a final judgment convicting her of trafficking in cocaine and conspiracy to traffic in cocaine.¹ Appellant asserts that the trial court erred in giving inaccurate and misleading jury instructions concerning the elements of the charged offenses and the defense of entrapment.

Appellant and her husband, Lonnie Bynes, were each charged by information with trafficking in cocaine and conspiracy to traffic in cocaine. Appellant and Bynes were tried together and both raised the defense of entrapment. Only appellant testified at trial saying that she had been entrapped because of threats that were made to her and her husband by a confidential informant from whom they had borrowed money which they could not repay. In order to cancel this debt, the confidential informant demanded that they get involved in a "drug deal." She also testified that she had never before participated in a drug transaction. The state, in rebuttal, introduced evidence that Bynes had two previous convictions for possession, sale and distribution of cocaine.

At the conclusion of all the evidence and argument of counsel, the court instructed the jury inter alia of the elements of the crime of trafficking in cocaine and conspiracy to traffic in cocaine and the defense of entrapment.

As to the charge of trafficking in cocaine, the trial court instructed the jury as follows:

Before you can find the defendant guilty of trafficking in cocaine, the State must prove the following four elements beyond a reasonable doubt:

One, Lonnie Bynes and/or Antoinette Davis knowingly purchased, possessed a certain substance.

Two, the substance was cocaine or a mixture containing cocaine.

Three, the quantity of the substance involved was 28 grams or more.

And four, Lonnie Bynes and/or Antoinette Davis knew the substance was cocaine or a mixture containing cocaine.

(Emphasis added). As to the charge of conspiracy to traffic in cocaine, the trial court instructed the jury as follows:

Before you can find the defendant guilty of criminal conspiracy, the State must prove the following two elements beyond a reasonable doubt:

One, the intent of Lonnie Bynes and/or Antoinette Davis was that the offense of trafficking in cocaine or a mixture containing cocaine would be committed.

In order to carry out the intent Lonnie Bynes and/or Antoinette Davis agreed or conspired or combined or confederated with person [sic] alleged to cause the trafficking in cocaine or mixture containing cocaine in the amount of 400 grams or more, and less than 150 kilograms to be committed by either of them or one of them, or by some other person.

It is not necessary that the agreement or conspiracy or combination or confederation to commit the trafficking in cocaine or mixture containing cocaine in the amount of 400 grams or more, but less than 150 kilograms be pressed [sic] in any particular words or that words pass between the conspirators.

It is not necessary that the defendant do any act in furtherance of the offense conspired.

(Emphasis added).

As to the defense of entrapment, the trial court instructed the jury as follows:

The defense of entrapment has been raised. Lonnie Bynes and/or Antoinette Davis was entrapped if:

One, that he or she or they were, for the purpose of obtaining evidence of the commission of a crime, induced or encouraged to engage in conduct constituting the crime of trafficking in cocaine or a mixture containing cocaine in an amount of 400 grams or more, but less than 150 kilograms and/or conspiracy to traffic in cocaine or a mixture containing cocaine in an amount of 400 grams or more, but less than 150 kilograms.

And two, that he, she or they engaged in such conduct as the direct result of such inducement or encouragement.

And three, the person who induced or encouraged him, her or them was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer.

And four, the person who induced or encouraged him, her or them employed methods of persuasion or inducement which created a substantial risk that the crime would be committed by a person other than one who was ready to commit it.

And five, Lonnie Bynes and/or Antoinette Davis was not a person who was ready to commit the crime.

It is not entrapment if Lonnie Bynes and/or Antoinette Davis had the predisposition to commit the trafficking in cocaine or a mixture containing cocaine in an amount of 400 grams or more, but less than 150 kilograms and/or conspiracy to traffic in cocaine of [sic] a mixture containing cocaine in an amount of 400 grams or more, but less than 150 kilograms. Lonnie Bynes and/or Antoinette Davis had the predisposition if before any law enforcement officer or person acting for the officer persuaded, induced, or lured Lonnie Bynes and/or Antoinette Davis, he, she or they had a readiness or willingness to commit trafficking in cocaine or a mixture containing cocaine in an amount of 400 grams or more, but less than 150 kilograms and/or conspiracy to traffic in cocaine or a mixture containing cocaine in an amount of 400 grams or more, but less than 150 kilograms if the opportunity presented itself.

(Emphasis added).

Appellant asserts that the jury instructions as to the charged offenses and the defense of entrapment were inaccurate, confusing and misleading because the trial court's repeated use of the conjunctions and/or could have misled the jury into concluding it could convict appellant solely on Bynes' conduct on the offenses as charged and could have misled the jury into concluding that appellant was not entrapped if the jury concluded that only Bynes had a predisposition to commit the charged offenses.

In order for appellant to be convicted of her charged offenses, the state must prove beyond a reasonable doubt that appellant knowingly purchased and /or possessed a certain substance, knew the substance was cocaine or a mixture containing cocaine and conspired with the person trafficking in cocaine. § 893.135(1), Fla. Stat. (1997). The trial court, however, instructed the jury that it could find appellant guilty of both crimes if she or Bynes knowingly possessed twenty eight grams or more of a substance that she or Bynes knew was cocaine or a mixture containing cocaine. Therefore, appellant argues the jury could have been misled into convicting appellant based solely on Bynes' conduct.

On the defense of entrapment, one of the critical elements to the defense is that appellant not have a predisposition to commit the crime charged. Munoz v. State...