Meme v. State

• Decision Date: 12 October 2011
• Docket Number: No. 4D08–3594.,4D08–3594.
• Parties: Kason MEME, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

72 So.3d 254

Kason MEME, Appellant,

v.STATE of Florida, Appellee.

No. 4D08–3594.

District Court of Appeal of Florida, Fourth District.

Oct. 12, 2011.

Philip J. Massa, Regional Counsel, and Cynthia L. Comras, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.WARNER, J.

The court sua sponte withdraws the previously issued opinion and issues the following corrected opinion.

Kason Meme appeals his conviction for possession of cocaine, arguing that the trial court erred in failing to grant a motion for judgment of acquittal, because the state presented insufficient proof that he had actual or constructive possession of cocaine. We disagree and affirm, as the state offered evidence the totality of which would support a finding of possession.

In the very early hours of the morning, Corporal Anthony Combs observed a vehicle with an expired license tag. He activated his lights and had a clear view of the interior of the car. As he did so, he observed the driver of the vehicle make a furtive movement, bending down as if to his feet and toward the right side of the floorboard. He did not see him drop anything. While he observed three other people in the car, no one else made any moves. The driver then stopped the vehicle in a plaza, and the officer approached the vehicle, immediately smelling the odor of marijuana. The driver, Kason Meme, appeared to be nervous and sweating and uttered statements such as “I'm going to jail.”

The officer went back to his vehicle to write a citation for driving with an expired tag. When he re-approached the vehicle, he asked to search it, based upon the smell of marijuana, and Meme consented. The officer located a tube containing cocaine under the seat in the same area where the officer had observed Meme bend down right before the stop. The cylinder was under the seat “but not that far back.” When the officer placed Meme under arrest for possession of cocaine, he continued to make statements, such as “I'm going to jail. My life is over.”

The state charged Meme with possession of cocaine, and Meme elected to waive a jury. At trial, the state presented the officer's testimony and then rested. After the trial court denied a motion for judgment of acquittal, Meme's cousin, who was the front seat passenger, and Meme both testified. They both denied that Meme had leaned over when the officer first observed the vehicle. Each said that the two occupants in the back seat were not well known to them and were simply going clubbing with them. They denied knowingly possessing any cocaine.

The court found that the state had proved constructive possession of cocaine by Meme. Meme was in close proximity to the tube and just prior to the stop had reached down in the area where the cocaine was located. The court mistakenly found that, “There were only two people in the car at the time, and the other person was the passenger.” Based upon this recitation, the court found that the state had proved its case beyond a reasonable doubt. Meme was sentenced to time served. He appeals.

A motion for judgment of acquittal should be granted only when it is apparent that no legally sufficient evidence has been submitted under which a jury could find a verdict of guilty. Toole v. State, 472 So.2d 1174 (Fla.1985). In this circumstantial evidence case, the state is not required to rebut every possible variation of the events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events. The question of whether the evidence fails to exclude any reasonable hypothesis of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, the verdict will not be reversed on appeal. State v. Law, 559 So.2d 187, 188 (Fla.1989).

The standard jury instructions set out the three elements that must be proven to establish possession of cocaine under section 893.13(6)(a), which are: 1) that the defendant possessed a substance; 2) that the substance was cocaine; and 3) that the defendant had knowledge of the presence of the substance. Fla. Std. Jury Instr. (Crim.) 25.7. Possession may be actual or constructive. “Possession is actual when the contraband is (1) in the defendant's hand or on his person, (2) in a container in the defendant's hand or on his person, or (3) within the defendant's” ‘ready reach’ “ and the contraband is under his control.” Sundin v. State, 27 So.3d 675, 676 (Fla. 2d DCA 2009)(emphasis original).

In Dupree v. State, 705 So.2d 90 (Fla. 4th DCA 1998), we summarized the requirements to prove constructive possession:

If the premises on which the contraband is found is in joint, rather than exclusive, possession of a defendant, knowledge of the presence of the contraband on the premises and the accused's ability to maintain control over it will not be inferred, but must be established by independent proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises.

Id. at 94 (citations omitted). Mere proximity to the contraband, however, is insufficient to prove either actual or construction...