Garcia v. State, 2D02-874.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: CANADY.
• Citation: 854 So.2d 758
• Parties: Jorge GARCIA, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 2D02-874.,2D02-874.
• Decision Date: 03 September 2003

854 So.2d 758

Jorge GARCIA, Appellant,
v.
STATE of Florida, Appellee

No. 2D02-874.

District Court of Appeal of Florida, Second District.

September 3, 2003.

854 So.2d 760

James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant

Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.

CANADY, Judge.

Jorge Garcia appeals his conviction for possession of methamphetamine. Because we conclude that none of the issues raised by Garcia justify reversal of his conviction, we affirm the judgment against him.

I. FACTS

In the early morning hours on June 9, 2001, Pasco County Deputy Sheriff Joseph Irizarry observed Garcia driving a truck. Garcia's vehicle first came to Deputy Irizarry's attention when it passed through a flashing yellow light without slowing down. Thereafter, Deputy Irizarry saw Garcia's vehicle go off the road while making a right-hand turn and then weave off the roadway onto the grassy shoulder three times. After observing this behavior and following Garcia's vehicle for approximately a quarter of a mile, Deputy Irizarry decided to stop Garcia's vehicle.

After the vehicle stopped and Deputy Irizarry approached the driver's window of the vehicle, he smelled alcohol and observed that Garcia's eyes were bloodshot and that Garcia's speech was slurred. Garcia was alone in the truck. Deputy

854 So.2d 761

Irizarry proceeded to conduct field sobriety tests. After conducting the tests, Deputy Irizarry arrested Garcia for driving under the influence

In the meantime, Deputy Wilkins and Deputy Banner arrived at the scene. In the course of searching Garcia's truck incident to his arrest, Deputy Wilkins found an item—which looked like a softball wrapped in black electrical tape—underneath the passenger's seat of Garcia's truck. Garcia told the deputies at the scene that he did not know what the item was, that he had not seen it before, and had not known that it was in the truck. He also stated that his truck had recently been stolen and that some friends had been in his truck earlier that night. Subsequent tests conducted by the FDLE crime laboratory determined that an off-white powder contained within the item was a mixture containing methamphetamine and a cutting agent.

Garcia was charged by information with trafficking in methamphetamine, driving under the influence, and obstructing or resisting an officer without violence. In his testimony at trial, Garcia stated that the night of his arrest he had the truck at a party from about 7:00 p.m. until 2:00 a.m. His truck was used at the party for playing CDs. Garcia also used the truck on two occasions during the party to take friends to buy beer. Garcia denied using drugs. He testified that he did not put the tape-covered item in the truck, know it was there, or know what it contained. Finally, Garcia testified that his truck had been stolen on Wednesday, May 31, from a shop where he had taken it. The truck was recovered the following Monday in a dirty condition and containing items that did not belong to Garcia. After recovering the truck, he returned it to the shop for the installation of a stereo. When he later picked up the truck, it was clean.

Garcia was found guilty of the driving under the influence charge and guilty of the lesser-included crime of possession of methamphetamine on the trafficking offense. He was found not guilty of the obstructing or resisting charge.

During the trial, at the close of the State's evidence and at the close of all the evidence, Garcia moved for a judgment of acquittal on the trafficking charge pursuant to Florida Rule of Criminal Procedure 3.380(a). The motion was denied. After Garcia was convicted, he renewed his motion for judgment of acquittal pursuant to rule 3.380(c). Once again, the motion was denied. Garcia also moved for a new trial pursuant to Florida Rule of Criminal Procedure 3.580. That motion was also denied.

II. ISSUES ON APPEAL

Garcia raises several issues which lack merit and which we will not address. Two issues raised by Garcia deserve discussion: (1) the claim that the trial court erred when it denied Garcia's motion for judgment of acquittal, and (2) the claim that the trial court gave an erroneous jury instruction and therefore should have granted his motion for new trial. Garcia's motion for judgment of acquittal was based on his contention that the evidence presented at trial was insufficient to establish that he had knowledge of the illicit nature of the substance contained in the softball-shaped item found in his truck. On the jury instruction issue, Garcia contends that the trial court erred when it failed to give an instruction that the lesser-included offense of possession of methamphetamine can be proven only if the defendant had knowledge of the illicit nature of the substance. Garcia requested such a guilty knowledge instruction on the trafficking charge, but not on the possession charge. Garcia argues that the request on the trafficking

854 So.2d 762

charge was sufficient to apprise the trial court of the need for a guilty knowledge instruction on the possession charge. He further contends that even if that request was insufficient to preserve the error the trial court's failure constitutes fundamental error

III. ANALYSIS

A. Motion for Judgment of Acquittal Based on Insufficient Proof of Possession

In this case—like many other drug possession cases where the evidence might not be sufficient to establish actual possession—the prosecution presented its case based on an alternative theory of constructive possession. Actual possession requires that the drugs be "in the hand of or on the person or in a bag or container in the hand of or on the person, or ... so close as to be within ready reach and ... under the control of the person." In re Std. Jury Instr. in Crim. Cases, 543 So.2d 1205, 1218 (Fla.1989); see also McCoy v. State, 840 So.2d 455 (Fla. 4th DCA 2003). In constructive possession cases, proof of the defendant's possession turns on the circumstances surrounding the location of the drugs when they are found and a resulting inference concerning the defendant's control of the drugs.

The existence of constructive possession of an item by a defendant depends on whether there is "such a nexus or relationship between the defendant and the goods that it is reasonable to treat the extent of the defendant's dominion and control as if it were actual possession." United States v. Casalinuovo, 350 F.2d 207, 209 (2d Cir.1965). To establish that a defendant is guilty of possession of illicit drugs under a constructive possession theory it is necessary to prove "(1) the defendant's ability to exercise dominion and control over the [drugs]; (2) his knowledge of the presence of the [drugs]; and (3) his awareness of the illicit nature of the [drugs]." Elias v. State, 526 So.2d 1014, 1015 (Fla. 2d DCA 1988).

"[K]nowledge of contraband found within an automobile ... is generally inferred or presumed from one's exclusive possession [of the automobile] unless and until proven otherwise." State v. Paleveda, 745 So.2d 1026, 1028 (Fla. 2d DCA 1999) (holding that trial court erred in dismissing cocaine possession charge where undisputed facts showed that defendant was "in exclusive control and possession of an automobile in which cocaine was found next to the driver's seat," thus establishing a "prima facie case of actual possession of cocaine"). This is based on the eminently sensible recognition of the reality that persons who lay claim to a valuable possession—such as illegal drugs—are quite unlikely to place that valued possession in a motorized conveyance which is under the exclusive dominion and control of another and which may speedily bear it away to a place from which it cannot be recovered. It is thus reasonable to assume that a person who is in exclusive possession and control of a motor vehicle bears responsibility for such items of value that are located in the vehicle. Cf. Green v. State, 667 So.2d 208, 211 (Fla. 2d DCA 1995) (holding that where "the [defendant] jointly possessed the car with his brother, his knowledge of the presence of cocaine... could not be inferred but had to be established by independent proof"); State v. Oxx, 417 So.2d 287, 291 (Fla. 5th DCA 1982) (stating that "proof of non-exclusive constructive possession alone is insufficient to justify an implication of knowledge," and that in such cases "the State must present some corroborating evidence of knowledge to establish a prima facie case").

854 So.2d 763

A defendant's constructive possession of drugs based on exclusive possession of an automobile in which the drugs are located is also sufficient to raise a presumption that the defendant had knowledge of the illicit nature of the drugs. The presumption of knowledge of the illicit nature of the substance is predicated on the common sense proposition that ordinarily individuals who possess a substance will know what the substance is, along with the basic legal principle that individuals are charged with knowledge of what the law requires or prohibits. See State v. Medlin, 273 So.2d 394, 397 (Fla. 1973) (holding that where defendant was charged with unlawful delivery of barbiturate or central nervous system stimulant without a valid prescription the "State was not required to prove knowledge or intent since both were presumed from the doing of the prohibited act"); State v. Williamson, 813 So.2d 61, 65 (Fla.2002) (stating that Medlin presumption is "still applicable to both actual and exclusive constructive possession cases"); United States v. Hodson, 77 U.S. 395, 409, 19 L.Ed. 937 (1870) ("Every one is presumed to know the law"). The presumption of guilty knowledge which arises where it is established that the defendant had actual possession or exclusive constructive possession of the drugs may, of course, be overcome by...