Arant v. State, O--192

• Decision Date: 18 January 1972
• Docket Number: No. O--192,O--192
• Citation: 256 So.2d 515
• Court: Florida District Court of Appeals
• Parties: Charles ARANT, Appellant, v. STATE of Florida, Appellee.

Page 515

256 So.2d 515

Charles ARANT, Appellant, v. STATE of Florida, Appellee.

No. O--192.

District Court of Appeal of Florida, First District.

Jan. 18, 1972.

Richard W. Ervin, III, Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

SPECTOR, Chief Judge.

Appellant seeks reversal of his conviction on charges of possessing marijuana in violation of Section 398.03, Florida Statutes, F.S.A., in a nonjury trial. The sole issue raised for our consideration is the sufficiency of the evidence to sustain the conviction.

At the time of the offense charged herein, appellant was a college student. He had a female companion, also a student, whose apartment he frequently visited--sometimes at night and sometimes for the night. Acting on a tip of an informant, the police obtained a warrant to search her apartment and its curtilage for marijuana. When the officers arrived at the scene of the crime, they found her sunbathing in the backyard. The search warrant was served, the search made, and the object thereof found. Seized were marijuana found in her bedroom, on top of the freezer in the living room, and in a plastic bottle. In the backyard the officers found young marijuana plants growing in two milk cartons and in a potato chip can. Appellant was not present when these items were found and seized, although there was evidence of his frequent visits. The witness testifying to appellant's visits also stated that often periods of up to two weeks would lapse without appellant appearing at the apartment. The appellant and the lady occupant of the apartment were both tried and convicted in the same trial, but we are now concerned only with his conviction and the evidence to support the same.

The potato chip can in which the young marijuana plants were found contained a single fingerprint of appellant on it. Under the State's theory of appellant's criminality, the single fingerprint on the potato chip can and the evidence of his frequent visitations to the lady's apartment are sufficient to show that he was in possession of marijuana in violation of Section 398.03, Florida Statutes, F.S.A. Neither the trial transcript nor the briefs and arguments of counsel make it clear whether appellant was charged with possessing the marijuana growing in the potato chip can on which his fingerprint was found, the plants in the milk carton halves found next to the can, the marijuana and paraphernalia found inside the apartment--or all of it.

Certainly, there appears ample evidence in the record to sustain a finding that appellant's codefendant in whose apartment the contraband was found was in possession of it. It was her apartment; she was in control of the premises. Thus, under the widely recognized rule stated by this court in Frank v. State, 199 So.2d 117 (1967), her guilt could be inferred from the evidence adduced at the trial. In Frank we said at page 120:

'From the foregoing it appears to be established in this state that before one charged with unlawfully possessing narcotic drugs may be convicted, the State must establish beyond a reasonable doubt that the accused knew of the presence of the narcotic drugs on premises occupied and controlled by him, either exclusively or jointly with others. If the premises on which the drugs are found are in the exclusive possession and control of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over them may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused, the inference of knowledge is rebuttable and not conclusive. . . .'

Appellant's status as a mere visitor in his codefendant's apartment, however frequent such visits were, requires the application of a different rule. In Markman v. State, 210 So.2d 486 (Fla.App.1968), the court adhered to the rule that where the premises in which the contraband is found is not in the exclusive possession of the defendant it becomes incumbent on the State to prove knowledge of the drug's presence And the ability to maintain control thereof. In the case of exclusive possession of the premises by the defendant, these elements may be inferred. But where the possession of the premises is joint, these elements must be proved by affirmative evidence. Such was our holding in Frank, supra. To like effect see Langdon v. State, 235 So.2d 321 (Fla.App.1970), where the court held that evidence of joint possession of premises in which marijuana was found is 'not only subject to the hypothesis of appellant's guilt but is also subject to the equally reasonable hypothesis of his innocence in that the marijuana was in the possession of one of the co-defendants.'

The foregoing authorities make it amply clear that merely being or having been present in a place where marijuana is found is not sufficient proof that such person is in possession of the drug where he is not in exclusive possession of the place. There must be proof of knowledge of the drug's presence coupled with proof of...