Morgan v. State

• Decision Date: 03 July 2013
• Docket Number: No. 2D10–708.,2D10–708.
• Citation: 117 So.3d 79
• Parties: Earnest MORGAN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

117 So.3d 79

Earnest MORGAN, Jr., Appellant,

v.STATE of Florida, Appellee.

No. 2D10–708.

District Court of Appeal of Florida, Second District.

July 3, 2013.

Rehearing Denied July 3, 2013.

Howard L. Dimmig, II, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Earnest Morgan appeals his convictions and sentences in circuit court case number 05–CF–21005 for one count of violating the Florida Racketeer Influenced and Corrupt Organizations (RICO) Act, one count of conspiracy to violate the Florida RICO Act, and one count of felon in possession of a firearm.¹ Because the record on appeal is inadequate to allow this court to determine whether the State met its burden to present legally sufficient evidence to sustain Morgan's convictions for violating RICO and conspiracy to violate RICO, we must reverse these convictions and remand for a new trial on those charges. In all other respects, we affirm.

In July 2005, the City of Tampa Police Department initiated an investigation into an alleged narcotics ring that was operating in East Tampa. Through confidential informants, the police identified Maurice Walton as a member of the alleged ring, and they obtained permission to intercept his telephone calls. Between July 2005 and October 2005, Walton made and received numerous calls from a telephone number beginning with area code 321, and the State ultimately connected the 321 telephone number to Morgan.

On October 24, 2005, Walton called the 321 telephone number and arranged a meeting for the next day with the person who received the call. On the day of the meeting, Walton became aware of a significant police presence surrounding the house where he was processing a large amount of powder cocaine into crack cocaine, and he called the 321 telephone number and warned the person who answered of this police presence. Walton was arrested later that day, and he identified Morgan as his cocaine supplier. With police assistance, Walton then made a controlled call to the 321 telephone number to arrange to purchase additional cocaine. The person who received the controlled call selected the place and time for this additional purchase, and Morgan subsequently arrived at the scheduled place and time. Although the alleged purpose of this meeting was for Walton to purchase additional cocaine, no cocaine was found in Morgan's car or on his person. Nevertheless, Morgan was arrested when he arrived at the scheduled meeting place at the scheduled time. ²

As to the other members of the alleged narcotics ring, the State linked Jesse Viverette to the house where Walton was producing the crack cocaine. Further, the State discovered that both Demarte Epps and Eric Blue regularly purchased both powder and crack cocaine from Walton during 2004 and 2005. Epps took orders from people on the street and filled those orders by purchasing cocaine from Walton. Blue bought kilogram quantities of cocaine from Walton and then distributed it to his buyers. However, the police never connected Morgan with these other members of the alleged narcotics ring nor found any evidence that he knew of their activities.

Based on the information gathered by the Tampa police, the State charged Morgan, Walton, Viverette, Epps, Blue, and several other individuals with violating RICO, conspiracy to violate RICO, trafficking in cocaine, and conspiracy to traffic in cocaine. To link Morgan to the racketeering activity and the conspiracy, the State presented testimony from some of the investigating police officers, and it played audio recordings of some of the telephone calls from Walton to the 321 telephone number. The substance of these telephone calls allegedly showed that Morgan was an active participant in both the racketeering activity and the conspiracy.

At the conclusion of the State's case, Morgan moved for a judgment of acquittal on both the RICO and conspiracy to violate RICO charges, arguing that the State had not presented sufficient evidence to establish that he was involved in a pattern of racketeering activity or to link him to the conspiracy. The trial court denied this motion, and Morgan was subsequently convicted of these offenses. In this appeal, Morgan argues that the trial court erred by denying his motion for judgment of acquittal on these two charges because the State's evidence was legally insufficient.

To prove a violation of the Florida RICO Act, the State must establish the defendant's “(1) conduct or participation in an enterprise through (2) a pattern of racketeering activity.” Lugo v. State, 845 So.2d 74, 97 (Fla.2003) (citing Gross v. State, 765 So.2d 39, 42 (Fla.2000)). To prove the “pattern of racketeering activity” element, the State must present evidence that the defendant engaged in at least two predicate acts that have the same or similar intents, results, accomplices, victims, or methods of commission. Gross, 765 So.2d at 42 n. 1;Sanchez v. State, 89 So.3d 912, 914 (Fla. 2d DCA 2012). Similarly, to prove that a defendant is guilty of participating in a conspiracy to violate RICO, the State must prove that either (1) the defendant knew of the overall objectives of the criminal enterprise and agreed to further its purpose or (2) the defendant personally committed at least two predicate acts. See Sanchez, 89 So.3d at 916;Mese v. State, 824 So.2d 908, 912 (Fla. 3d DCA 2002).

In this case, however, the record on appeal does not establish that Morgan engaged in the requisite predicate acts of racketeering, that he knew of the objectives of the alleged conspiracy and agreed to further its purpose, or that he personally committed two predicate acts in furtherance of the alleged conspiracy. While the record contains some evidence to establish that Morgan arranged for a delivery of cocaine to Walton on October...