Neil J. Lemaster v. State , 162 So. 3d 56 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
NEIL J. LEMASTER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-1727
[July 30, 2014]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert L. Pegg, Judge; L.T. Case No.
312011CF001425A.
Carey Haughwout, Public Defender, and James W. McIntire, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher,
Assistant Attorney General, West Palm Beach, for appellee.
STEVENSON, J.
Neil J. Lemaster and Paul David Wilder were jointly tried for the sale of
oxycodone within 1,000 feet of a church and possession of oxycodone.
Both were found guilty as charged. In this appeal, defendant Lemaster
challenges his convictions. While defendant raises a number of issues on
appeal, we find merit in only one: his claim that the evidence was
insufficient to support his conviction for sale of oxycodone within 1,000
feet of a church. We write solely to address this issue.
Section 893.13(1)(e)1., Florida Statutes (2011), makes it a first degree
felony to “sell . . . or possess with intent to sell . . . [specified controlled
substances, including oxycodone] . . . in, on, or within 1,000 feet of a
physical place for worship at which a church or religious organization
regularly conducts religious services.” Thus, to convict a defendant of
such offense, the State must present evidence establishing that, during
the timeframe when the offense occurred, religious services were regularly
being conducted. See Moore v. State, 18 So. 3d 715 (Fla. 2d DCA 2009)
(holding evidence insufficient to convict defendant of possession of cocaine
with intent to sell within 1,000 feet of a church, where officer testified he
had seen people coming and going from the church on Sundays, but officer
last observed the activity nearly a year before the crime); cf. Cox v. State,
764 So. 2d 711 (Fla. 1st DCA 2000) (holding the State was required to
prove the site of the drug sale was a school when the offense took place
and evidence that it was a school two years earlier was insufficient).
In the instant case, the State offered evidence that Ryanwood
Fellowship Church was located within 1,000 feet of the drug sale at issue.
The State, however, failed to offer evidence from which a jury could find
that church services were being regularly conducted at the time of the
November 2011 crime. At the March 2013 trial, the church pastor testified
that the church has regular fellowship meetings on Sundays, Wednesdays,
and Thursdays. The pastor was shown a photograph of the church, taken
in September of 2012, and testified it was a fair and accurate depiction of
how the church looks. Additionally, one of the officers who conducted
surveillance at the time of the undercover drug buy, testified that, at the
time of the drug sale, the church was in substantially the same condition
as it was in the September 2012 photographs. None of this evidence,
though, established that church services were being regularly conducted
at the time of the November 2011 crime. The pastor’s testimony served to
establish that services were being regularly conducted at the time of the
2013 trial, not at the time of the 2011 crimes. And, the photographs
established that the church looked the same at the time of trial as it did
at the time of the 2011 crime, but not that services were being conducted
at the time of the 2011 crime.
In the absence of such evidence, we are compelled to reverse
defendant’s conviction for sale of oxycodone within 1,000 feet of a church.
On remand, the trial court is directed to enter a judgment of conviction for
sale of oxycodone. See Wallace v. State, 814 So. 2d 1255, 1257 (Fla. 5th
DCA 2002) (finding evidence insufficient to prove sale and delivery of
cocaine within 1,000 feet of a place of worship and remanding with
instructions for entry of a judgment of conviction for sale and delivery of
cocaine).
Affirmed in part; Reversed in part; and Remanded.
CIKLIN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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