Bennett v. State Of Fla.

• Decision Date: 05 November 2010
• Docket Number: Case No. 2D09-940
• Parties: COREY BENNETT, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

COREY BENNETT, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D09-940

DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

Opinion filed November 5, 2010.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Hillsborough County; Lawrence Lefler and Wayne S. Timmerman, Judges.

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

Corey Bennett was convicted of trafficking in cocaine, possession of marijuana, and possession of paraphernalia, all based on circumstantial evidence that he was in constructive possession of the contraband. We are required to reverse because the evidence was insufficient to support the convictions. This disposition

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makes it unnecessary for us to reach a suppression issue Bennett has raised on appeal, but we will comment briefly on it.

The evidence at trial reflected that Bennett was wanted on felony charges, although no arrest warrant had been issued. A Tampa police officer received a tip that Bennett could be found at a certain residential address. The tipster reported that Bennett was outside the front of the residence, possibly participating in a drug deal.

At the given address there was a main house in the front and a second dwelling, a cottage of sorts, in the rear. Bennett's grandmother and some other family members lived in the main residence. The State presented no evidence to show who lived in the rear building, which was a small, one-bedroom dwelling with a living room, kitchen, and bath.

As the officer made his way to the location, the tipster reported that Bennett had run to the rear building. When the officer arrived, he proceeded to the cottage and knocked on the door. Receiving no response, he then walked around the structure and observed a broken window. He looked through the window into the bedroom and spied Bennett peeking out from the adjoining bathroom. The officer announced his presence and his intention to arrest Bennett. Bennett refused the officer's order to come out, whereupon the officer climbed through the broken window and made the arrest.

After waiving his rights, Bennett first told the officer that he did not live in the cottage and did not know who did. He claimed that he had found the door open and had run inside. After the officer mentioned the possibility of burglary or trespass

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charges, Bennett said that he stayed there sometimes. The officer asked for and received Bennett's permission to search the premises.

The search revealed contraband in the living room and bedroom. On the lower shelf of an entertainment center in the living room, the officer found two slabs of crack cocaine, a baggie of marijuana, and a digital scale and razor blade with cocaine residue. In the bedroom, a second officer found an open cardboard box full of men's clothing. Also inside was a small plastic sandwich bag box, and it contained seven slabs of crack cocaine. A man's shirt was lying draped in or across the top of the cardboard box, and Bennett's driver's license was found in the shirt pocket. There was also a letter, addressed to Bennett, somewhere in the cardboard box.

At the conclusion of the State's case, Bennett moved for a judgment of acquittal, arguing that the State failed to prove his constructive possession of the drugs and paraphernalia. The trial court denied the motion, and Bennett argues the same point on appeal.

We review the denial of a motion for judgment of acquittal under a de novo standard. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). Where, as here, the evidence of the defendant's guilt is entirely circumstantial, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. State v. Law, 559 So. 2d 187, 188 (Fla. 1989). This is so regardless of how strongly the evidence may suggest the defendant's guilt. Id. To be sure, the question of whether the evidence fails to exclude all reasonable hypotheses of innocence ultimately is for the jury, and a conviction that is supported by substantial, competent evidence will not be reversed. Jackson v. State, 995 So. 2d 535, 539 (Fla. 2d DCA 2008) (citing Law,

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559 So. 2d at 188). But if the State does not offer evidence that is inconsistent with the defendant's hypothesis," 'the evidence [would be] such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law.' " Law, 559 So. 2d at 189 (quoting Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)).

Here, Bennett was not shown to have physically possessed the contraband. See Sundin v. State, 27 So. 3d 675, 676 (Fla. 2d DCA 2009) (explaining that actual possession is shown when contraband is found in the defendant's hand, on his or her person, or within reach and under the defendant's control). Thus it was necessary for the State to prove that he had it in his constructive possession. See id; Santiago v. State, 991 So. 2d 439, 441 (Fla. 2d DCA 2008). To prove constructive possession, the State must show beyond a reasonable doubt that the defendant knew of the presence of the...