Brown v. State, 85-207

Citation483 So.2d 743,11 Fla. L. Weekly 271
Decision Date23 January 1986
Docket NumberNo. 85-207,85-207
Parties11 Fla. L. Weekly 271, 11 Fla. L. Weekly 536 Jimmy Lee BROWN, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Charles R. Trulock, Jr., Orlando, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

The defendant appeals his convictions for trafficking in cocaine and possession of more than 20 grams of cannabis, and the sentences imposed. Appellant argues that the evidence was insufficient to sustain a finding that he was in possession of contraband which was found in the trunk of a borrowed vehicle in which he was merely a passenger; that the trial court erred in failing to instruct the jury as to all lesser included offenses; and that no clear and convincing reasons support the departure from the recommended guideline sentence.

On March 15, 1984, the appellant and another male were stopped by an officer who had observed them driving slowly through a motel parking lot in a car without a permanent license tag and with no temporary tag visible. Upon approaching the vehicle, the officer observed a plastic bag containing a green vegetable matter above the visor on the driver's side. While retrieving the plastic bag from the visor, the officer noticed another cellophane packet containing similar material in the back seat behind where the passenger had been seated. The driver, Jack Stokes, was found to have an expired driver's license and after being placed in the patrol car, he asked if he could give the keys to the automobile to the appellant. It was established that the car belonged to neither the appellant nor Stokes but rather to the mother of Stokes's girlfriend.

In response to a question about his driver's license and clothing, the appellant voluntarily opened the back of the trunk and showed the contents to the officer. The trunk was full of his clothes as well as a duffle bag with a scale and strainer protruding. The officer testified that he noted the odor of marijuana emanating from the trunk and a subsequent search revealed the strainer, a scale, a 16 oz. bottle of mannitol, 1 two containers containing 10.8 and 66.6 grams of cocaine respectively, as well as a garbage bag containing a brick-like block of cannabis weighing approximately 17 pounds. A fingerprint identified and stipulated to be that of the appellant was found on one of the containers of cocaine.

There was conflicting testimony as to which of the two occupants had borrowed the vehicle, and there was no direct testimony as to the ownership of the contraband in the trunk of the car. Appellant contends that the State has not met its burden of showing that he had actual or constructive possession and control of the contraband in the trunk. 2 With certain exceptions not applicable here, section 893.13(1)(e), Florida Statutes (1983) makes it unlawful for any person to be in actual or constructive possession of a controlled substance. For purposes of this section, actual possession exists where the accused has physical possession of the controlled substance and knowledge of its illicit nature. Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976). To establish constructive possession, the State must show that the accused had dominion and control over the contraband, knew the contraband was within his presence and knew of the illicit nature of the substance. Brown v. State, 428 So.2d 250 (Fla.1983), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983).

Appellant relies on Dean v. State, 406 So.2d 1162 (Fla. 2d DCA 1981), rev. denied, 413 So.2d 877 (Fla.1982) and Metzger v. State, 395 So.2d 1259 (Fla. 3d DCA 1981) as support for the proposition that finding the contraband along with his clothes in the trunk of a vehicle which he did not own and in which he was riding as a passenger is not a sufficient basis on which to predicate a finding of actual or constructive possession. These cases are easily distinguishable. In Metzger, the defendant was a passenger on a boat owned and operated by his co-defendant, and there was no evidence to indicate that the defendant knew of the existence of the contraband or had the ability to control it. In Dean, the driver of the car put a brown paper bag containing marijuana in the trunk of the car. There was no evidence presented that the passenger even knew what was in the bag, much less that he had any ability to control it. Here, however, the defendant's fingerprint was found on one of the baggies of cocaine, and this fact along with the other proven facts was a sufficient basis upon which the jury could find that the contraband belonged to the defendant, that he had placed it in the trunk with his clothes and that he maintained control over it. Cf. Shad v. State, 394 So.2d 1114 (Fla. 1st DCA), rev. denied, 402 So.2d 613 (Fla.1981).

Appellant next contends that the trial court erred in refusing to instruct the jury on necessarily included lesser offenses. 3 On the trafficking charge, a first degree felony, appellant contends that the jury should have been instructed on sale, manufacture, delivery or possession with intent to sell cocaine (section 893.13(1)(a)1), a second degree felony; bringing cocaine into the state, a second degree felony (section 893.13(1)(d)), and possession of cocaine, a third degree felony (section 893.13(1)(e)), relying on Bell v. State, 437 So.2d 1057 (Fla.1983). Bell did hold that the offenses listed by appellant were necessarily lesser included offenses of trafficking, but that holding in Bell was receded from in Rotenberry v. State, 468 So.2d 971 (Fla.1985) where the court held:

Section 893.135 is sufficiently different from the provisions of section 893.13 to allow multiple punishments at the same trial because the state need...

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9 cases
  • Eldridge v. State, 87-1236
    • United States
    • Florida District Court of Appeals
    • September 22, 1988
    ...475 So.2d 1221 (Fla.1985); Deer v. State, 476 So.2d 163 (Fla.1985); Banks v. State, 509 So.2d 1320 (Fla. 5th DCA 1987); Brown v. State, 483 So.2d 743 (Fla. 5th DCA 1986); State v. Mihocik, 480 So.2d 711 (Fla. 5th DCA If at sentencing on the prior offense the defendant has been merely arrest......
  • Garrison v. State
    • United States
    • Florida District Court of Appeals
    • August 4, 1988
    ...shall be known as 'trafficking in cocaine,' " and then delineates different punishments based on amount.3 Because Brown v. State, 483 So.2d 743 (Fla. 5th DCA 1986), relied on Rotenberry for its holding that possession and sale were not lesser offenses of trafficking, we conclude that Brown ......
  • State v. Weller
    • United States
    • Florida Supreme Court
    • November 7, 1991
    ...Carawan v. State, 515 So.2d 161 (Fla.1987), abrogation recognized, State v. Smith, 547 So.2d 613 (Fla.1989), and Brown v. State, 483 So.2d 743 (Fla. 5th DCA 1986) ("Brown I "). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const. We approve in part and quash in part the opinion below and......
  • Munroe v. State, BM-117
    • United States
    • Florida District Court of Appeals
    • October 20, 1987
    ...as to whether the rationale in Rotenberry should be extended to cases in which double jeopardy is not an issue. In Brown v. State, 483 So.2d 743 (Fla. 5th DCA 1986), the appellant, convicted of trafficking in cocaine, argued that the trial court erred in failing to instruct the jury on cert......
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