Evans v. State

• Decision Date: 13 April 2010
• Docket Number: No. 1D09-798.,1D09-798.
• Citation: 32 So.3d 188
• Parties: Michael Jay EVANS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

32 So.3d 188

Michael Jay EVANS, Appellant, v. STATE of Florida, Appellee.

No. 1D09-798.

District Court of Appeal of Florida, First District.

April 13, 2010.

Nancy A. Daniels, Public Defender; and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General; and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

KAHN, J.

A jury found Michael Jay Evans (appellant) guilty of actual or constructive possession of two controlled substances (Counts Two & Four) and possession of drug paraphernalia, including pipes or other items used with controlled substances (Count Five). Appellant argues the trial court erred, in pertinent part, by denying a motion for judgment of acquittal (JOA) on Counts Two and Four, where the circumstantial evidence was insufficient to establish that appellant constructively possessed the controlled substances. On this argument, we reverse the judgment and sentence on these two counts. The evidence supports appellant's conviction in Count Five, for which the trial court sentenced him to time served.

FACTUAL & PROCEDURAL BACKGROUND

Officers with a search warrant went to appellant's residence, where their search disclosed a duffel bag atop the bed in the master bedroom. A confidential informant had identified this bedroom as appellant's but did not identify who owned the duffel bag. Inside the bag, officers found appellant's passport, a memo book, and a small travel toiletry bag. Inside the toiletry bag, they discovered a glass smoking device and a pain reliever bottle containing miscellaneous pills, eventually analyzed and identified as MDMA and Carisoprodol. During the search, appellant, another man, and appellant's daughter were in the residence. Also, the confidential informant, appellant's relatives, and several other people frequently visited or stayed at the residence. Some of these visitors had ready access to the master bedroom and had stored illicit drugs there.

The defense theorized the premises were under joint possession and because the officers did not find the contraband on appellant's person, his mere occupancy of the residence could not establish the necessary elements of constructive possession. Defense counsel, on that basis, moved for JOA on Counts Two and Four. The trial court denied the motion.

ANALYSIS

We review de novo the denial of a motion for JOA to determine whether the evidence is legally sufficient to prove the charged offense. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (en banc). "Where a conviction is based wholly upon circumstantial evidence, a special standard of review applies." Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (stating the evidence must be inconsistent with any reasonable hypothesis of innocence, an issue of fact for the jury to decide based on competent substantial evidence).

"Proof of possession of a controlled substance may be actual or constructive." Taylor v. State, 13 So.3d 77, 80 (Fla. 1st DCA 2009); see § 893.13(6)(a), Fla. Stat. (2007). Constructive possession exists where the accused does not have physical possession of the contraband but knows of its presence on or about the premises and can maintain dominion and control over it. See Brown v. State, 428 So.2d 250, 252 (Fla.1983). The charges in Counts Two and Four referred to the pills hidden in a pain reliever bottle inside a small black travel toiletry bag, which itself was inside the duffel bag. Someone placed appellant's passport inside the duffel bag. Other occupants of the residence had access to the master bedroom, but no one had actual physical possession of the duffel bag and its contents at the time of the search. The State adduced no fingerprints from the duffel bag or on the pain reliever bottle, nor did the officers ask who owned the pill bottle.

Because the premises where the officers found the contraband were in joint, rather than exclusive, possession, one cannot infer either the "knowledge" or "ability to maintain dominion and control" element from mere ownership of the residence or proximity to the contraband. The State must establish both elements by independent proof. See id.; Taylor, 13 So.3d at 80-81.

Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband in the place where it is found, or circumstantial evidence from which a jury might properly infer that the accused had knowledge of the presence of the contraband.

Robinson v. State, 936 So.2d 1164, 1167 (Fla. 1st DCA 2006) (quoting Wale v. State, 397 So.2d 738, 740 (Fla. 4th DCA 1981)). Questioning what "independent proof" the prosecution offered to prove constructive possession of MDMA and Carisoprodol in the jointly occupied premises, appellant relies on S.B. v. State, 657 So.2d 1252 (Fla. 2d DCA 1995) (concluding that the State failed to prove S.B. constructively possessed marijuana found in a grocery bag in the trunk of a car carrying him and several other passengers, where, although S.B. admitted owning the bag, the officer never asked if S.B. owned the container in which the marijuana was found, never inventoried the contents of the bag, and never obtained...