                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA
CHARLES EUGENE SMITH,
                                      NOT FINAL UNTIL TIME EXPIRES TO
      Appellant,                      FILE MOTION FOR REHEARING AND
                                      DISPOSITION THEREOF IF FILED
v.
                                      CASE NO. 1D13-5421
STATE OF FLORIDA,

     Appellee.
_____________________________/

Opinion filed January 6, 2015.

An appeal from the Circuit Court for Duval County.
J. Bradford Stetson, Judge.

Nancy A. Daniels, Public Defender, and Melanie R. Leitman, Special Assistant
Public Defender of Messer Caparello, P.A., Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney
General, Tallahassee, for Appellee.



PER CURIAM.

      The defendant, Eugene Smith, appeals his conviction for the sale of a

controlled substance. Of the points raised on appeal, we agree that the trial court

erred by admitting testimony from a law enforcement officer regarding common

practices of drug dealers. Over defense objection, the officer responded

affirmatively when the prosecutor asked the following question relative to the

circumstances surrounding defendant’s arrest: “And in your years of experience in
narcotics work, is this what delivering drugs from one person to another typically

looks like?” This testimony invaded the province of the jury by suggesting the

inference to be drawn from the facts by comparison to general patterns of criminal

behavior, and it was unfairly prejudicial against the defendant. See Austin v. State,

44 So. 3d 1260, 1262 (Fla. 1st DCA 2010) (“Testimony about the general behavior

of certain kinds of offenders is inadmissible as substantive proof of a defendant’s

guilt. Every defendant has the right to be tried on the evidence, not on the general

characteristics or conduct of certain types of criminals.”); Lewis v. State, 754 So.

2d 897, 902 (Fla. 1st DCA 2000) (holding that a police officer’s testimony based

on general patterns of criminal behavior “encroached on the jury’s prerogative to

decide between conflicting facts, to draw inferences from the facts, and to reach

factual conclusions”). Because we are unable to conclude beyond a reasonable

doubt that this error was harmless, we must reverse and remand for a new trial.

State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

LEWIS, CJ., BENTON and RAY, JJ., CONCUR.




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