Gartrell v. State, 91-0545

• Decision Date: 25 November 1992
• Docket Number: No. 91-0545,91-0545
• Citation: 609 So.2d 112
• Parties: 17 Fla. L. Weekly D2623 Karen GARTRELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 112

609 So.2d 112

17 Fla. L. Weekly D2623

Karen GARTRELL, Appellant, v. STATE of Florida, Appellee.

No. 91-0545.

District Court of Appeal of Florida Fourth District.

Nov. 25, 1992.

Richard L. Jorandby, Public Defender, and Ellen Morris, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Douglas J. Glaid, Asst. Atty. Gen., West Palm Beach, for appellee.

LETTS, Judge.

The defendant was charged with violating section 893.135(1)(b)1.a, Florida Statutes (1989), which states in part that the crime of trafficking in cocaine is committed by "any person who is knowingly in actual or constructive possession of 28 grams or more of cocaine...." (Emphasis added.) The defendant moved for a judgment of acquittal on the ground that the state failed to present any evidence on the knowledge element and the trial court denied the motion. From that denial, the defendant now appeals. We affirm.

The defendant was a passenger in a vehicle stopped pursuant to a traffic violation. The defendant was sleeping in the back-seat and there was a driver and passenger in the front seat. The cocaine was found in the defendant's handbag which the officer testified she was using as a pillow when first observed.

The foregoing statute requires the defendant to be knowingly in actual or constructive possession. Ignoring the statutory term "knowingly" for a moment, this court has consistently defined actual possession as follows: "actual possession exists where the accused has physical possession of the controlled substance and knowledge of such physical possession." Brooks v. State, 501 So.2d 176, 177 (Fla. 4th DCA 1987); (citing Willis v. State, 320 So.2d 823, 824 (Fla. 4th DCA 1975)).

Constructive possession, on the other hand:

exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance. 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 contraband.

Brown v. State, 428 So.2d 250, 252 (Fla.1983), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983) (citations omitted). The preceding definitions show that knowledge of the contraband's presence is an element of possession itself. Logic dictates, then, that the statutory term "knowingly" cannot mean the same thing; i.e., knowledge of the contraband's presence. Instead, "knowingly" as used in the statute has been interpreted by our supreme court to mean that the defendant must know the nature of the particular substance he possesses. State v. Dominquez, 509 So.2d 917 (Fla.1987). See also Wag v. State, 475 So.2d 239 (Fla.1985). Therefore, not knowing that the substance one possesses is cocaine is a defense under the statute. The defendant in this case did not raise that argument, but instead, contended that she was not aware of the cocaine's presence in her handbag. Consequently, the state's case centered on proving possession and the knowledge inherent therein.

The state correctly characterizes this as an actual rather than a constructive possession case. It is uncontroverted that the defendant was in physical possession of the cocaine (the cocaine was found in her handbag which she was using as a head pillow). The second element of actual possession is knowledge of the physical possession. This court has repeatedly stated that knowledge, for either actual or constructive possession, may be inferred from the accused's exclusive possession and control. ¹ Willis, 320 So.2d at 825. The Florida Standard Jury Instruction on the trafficking statute is in accord, "[i]f a person has exclusive possession of a thing, knowledge of its presence may be inferred or assumed."

The presumption of knowledge is only available if the state proves exclusive possession. Black's Law Dictionary, 506 (5th ed.1979), defines exclusive as "vested in one person alone." The handbag in this case was found in appellant's sole possession, under her head, being used as a pillow. Therefore, she was in exclusive possession of the bag from which we can presume her knowledge of the cocaine's presence. The dissent disagrees, viewing this as a "joint possession" case because of the defendant's bare assertion that she was not in exclusive possession of the bag shortly before the car was stopped. The defendant contends that her bag was on the armrest, where others had access to it, while she slept, and that shortly before the car was stopped, she was awakened and told to remove her bag. She does not deny that when the car was stopped, the handbag was in her sole possession. Contrary to the dissent's belief, the defendant's self-serving assertion, alone, cannot turn this into a joint possession case. Instead, as the First District noted in Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967), it is evidence designed to rebut the knowledge inference and created, at most, a jury question as to whether the defendant was in exclusive possession of the handbag. See Frank at 121 (the inference of knowledge is rebuttable and not conclusive).

A Third District case, Wilcox v. State, 522 So.2d 1062 (Fla. 3d DCA 1988), illustrates the point. In that case, the defendant was charged with unlawful possession of a firearm by a convicted felon. The evidence showed that when the defendant was approached by the police, he was sitting on a bench in a train station with his girlfriend. A canvas tote bag was sitting on the bench in between them. When the officers advised the defendant he was under arrest (no mention of why), he immediately grabbed the tote bag and ran. The firearm was found in the bag. At trial, the defendant argued that he was entitled to a judgment of acquittal because the state had failed to prove possession. Specifically, he raised the same argument the defendant has here, that since his girlfriend had complete and independent access to the tote bag, it was in their joint possession and therefore his knowledge for actual or constructive possession could not be inferred, but instead had to be proved by independent evidence. The defendant in Wilcox even had something in his favor not present sub judice, that is, his girlfriend corroborated the story, testifying that she had equal access to the bag and had in fact placed the gun in the tote bag without his knowledge.

Nonetheless, the Third District held that the issue of whether the defendant was in exclusive possession of the tote bag was a question for the jury, reasoning:

Although both [the defendant] and his girlfriend testified that they had equal access to use of the tote bag, the evidence shows that it belonged to [the defendant]. [The defendant's] girlfriend claims she did not advise [the defendant] that she had placed the gun in the bag and he claims that he was not aware that it was there. However, when the police officers approached him, he immediately grabbed the bag. Viewing this evidence in the light most favorable to the state, the trier of fact might disbelieve the testimony of the defendant and his girlfriend and conclude that [the defendant] had exclusive possession of the bag and knew about the weapon's existence. Thus, the trial court correctly denied the motions for judgment of acquittal.

522 So.2d at 1064.

Wilcox is applicable to the instant case. Here, the officer observed the defendant in exclusive possession of the bag. Contrary to that observation, the defendant contends that she was not in exclusive possession of the bag shortly before the car was stopped. However, unlike Wilcox, there was no testimony in this case from the other passengers corroborating the defendant's assertion. The defendant's self-serving assertion, cannot, ipso facto, turn this into a joint possession case. Instead, at most, it created a jury question as to whether the defendant was in exclusive possession of the handbag.

The dissent argues that Wilcox is inapplicable here because "the grabbing [of the tote bag by the defendant] and the running away supplied the extra requirement of guilty knowledge." Again, this evince's the dissent's different interpretation of the law applicable to this case. The dissent views this as a joint possession case because of the defendant's bare assertion that others had access to the bag. As already noted, if this were a joint possession case the requisite knowledge for possession could not be inferred but would have to be established by independent proof. That independent proof will almost always consist of circumstantial evidence from which the jury can infer the requisite knowledge.

We, likewise, find no merit in the defendant's contention that her constitutional right against double jeopardy was violated when she was resentenced to nine years imprisonment.

Briefly, the defendant was initially sentenced, by a judge who was filling in for the vacationing trial judge, to one year imprisonment on the simple possession count and a three year mandatory minimum on the trafficking possession count, to run concurrently. This constituted a downward departure from the defendant's permitted guidelines range of four and one-half to nine years. However, the trial judge did not provide any written reasons for the departure. Nine days later, the state filed a motion to correct an illegal sentence, pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that the downward departure without written reasons constituted an illegal sentence.

The motion was heard before the original judge who had presided at trial. He found that the initial sentence was "void ab initio" and resentenced the defendant to nine years imprisonment. The increase of a legal sentence upon resentencing constitutes double jeopardy. Macias v. State, 572 So.2d 22 (Fla. 4th DCA 1990). See also Fla.R.Crim.P. 3.800(b)...