Green v. State, 93-02914

• Decision Date: 02 August 1995
• Docket Number: No. 93-02914,93-02914
• Citation: 667 So.2d 208
• Parties: 21 Fla. L. Weekly D907 Ricky GREEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 208

667 So.2d 208

21 Fla. L. Weekly D907

Ricky GREEN, Appellant, v. STATE of Florida, Appellee.

No. 93-02914.

District Court of Appeal of Florida Second District.

Aug. 2, 1995.

Melissa Gilkey Mince, Seminole, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ann P. Corcoran, Assistant Attorney General, Tampa, for Appellee.

LAZZARA, Judge.

The appellant, Ricky Green, challenges his judgment and sentence, imposed after a jury trial, for trafficking in cocaine. He argues that the trial court erred in denying his motion for judgment of acquittal made in accord with Florida Rule of Criminal Procedure 3.380. We agree and reverse and remand with directions to discharge appellant because the state's circumstantial proof failed to provide substantial, competent evidence inconsistent with any reasonable hypothesis of innocence.

The following proof was adduced at trial in support of the state's allegation in the criminal information that appellant trafficked in illegal drugs in violation of section 893.135, Florida Statutes (1991), by being in actual or constructive possession of cocaine. On the morning of July 9, 1992, the appellant, while driving a rental car from Miami northbound on the Sunshine Skyway bridge, was stopped by Florida Highway Patrol Trooper Morris for exceeding the speed limit. He was accompanied by his brother, who was seated in the right front passenger seat. Another trooper, Trooper Lanese, immediately arrived at the scene with a K-9 drug dog to provide back-up assistance.

During the course of the stop, Trooper Morris learned that appellant was from Miami and thus decided to issue him a warning citation. He also noted that appellant appeared nervous, although that was not an uncommon reaction from a motorist just stopped by a law enforcement officer. Trooper Lanese, in the meantime, began engaging appellant's brother in conversation and noted he was more nervous than the ordinary passenger involved in a traffic stop. After the troopers conferred, Trooper Morris asked appellant why his brother was so nervous, to which appellant replied his brother had no reason to react that way. As Trooper Morris continued to speak with appellant, he noticed that appellant became more nervous, thus prompting him to ask if there were any weapons or drugs in the car. The appellant stated there were none.

Notwithstanding this denial, Trooper Morris had Trooper Lanese use his K-9 dog to perform an exterior search of the car. After the dog "alerted" to the presence of drugs, the troopers placed appellant and his brother in Trooper Morris's patrol car and commenced a search of the rental car. They initially searched the trunk and discovered the presence of luggage, electrical tape, a Phillips screw driver, razor blades, and a brown paper bag. Based on his experience, Trooper Lanese opined at trial that the screwdriver indicated the presence of a hidden drug compartment, the tape could be used to wrap cocaine to mask its odor, and the razor blades could be used to cut cocaine. The only evidence linking appellant to these items was his possession of the car's ignition key which also opened the trunk.

The troopers' later search of the car's interior proved more fruitful. They discovered the presence of four balls of cocaine wrapped in electrical tape and fresh onions hidden from view in a compartment above the glove box. To retrieve the cocaine, Trooper Lanese had to remove two Phillips screws which had "fresh" scratch marks. However, he did not process the glove box for the presence of latent fingerprints because the car was a rental car, and he was unable to lift any such prints from the screwdriver found in the trunk. Furthermore, a subsequent latent fingerprint examination of the cocaine wrappings failed to reveal the existence of any prints of comparison value.

Both troopers testified that during the search of the car they smelled a "spicy" odor which they were unable to conclusively identify. Trooper Lanese also related that the diameter of one of the balls of cocaine matched the diameter of a stain on the paper bag found in the trunk. However, he failed to have the bag analyzed for the presence of latent fingerprints or cocaine.

Finally, the state presented a stipulation in lieu of the live testimony of a Gloria Barnes. The stipulation recited that the car had been rented by Ms. Barnes and appellant's brother on July 7, 1992, that the lease agreement expired on July 16, 1992, that appellant's brother had possession of the car after its rental, and that Ms. Barnes neither possessed nor drove the car at any time. There was no evidence, however, establishing when, where, and under what circumstances the appellant entered or began driving the car.

After the state rested, the appellant moved for judgment of acquittal, specifically contending that other than his joint possession of the car, there was no other evidence supporting a finding that he had knowledge of the presence of cocaine within the car. The trial court denied the motion, determining that there was sufficient circumstantial evidence "combined with the odor of the onion and all the rest" from which the jury could find knowledge. We respectfully disagree with this determination.

It is apparent from the recitation of the facts that since appellant was not in actual possession of cocaine, and the cocaine was not in plain view, the state was required to prove that he constructively possessed it. Lewis v. State, 570 So.2d 346, 348 (Fla. 2d DCA 1990). To meet this burden, the state had to prove that appellant had dominion and control over the cocaine, knew it was within his presence, and had knowledge of its illicit nature. Brown v. State, 428 So.2d 250, 252 (Fla.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983). Furthermore, because the appellant jointly possessed the car with his brother, his knowledge of the presence of cocaine, as well as his ability to control it, could not be inferred but had to be established by independent proof. Id. Thus, the mere fact that appellant was in joint possession of a car in which cocaine was found did not establish his constructive possession of that cocaine and would be insufficient to allow a jury to find him guilty of the offense charged. Pena v. State, 465 So.2d 1386, 1388 (Fla. 2d DCA 1985); Manning v. State, 355 So.2d 166 (Fla. 4th DCA 1978).

Viewing the evidence in the light most favorable to the state, as we are required to do, we conclude that the most the state demonstrated in the form of substantial, competent evidence tending to establish constructive possession of cocaine was that appellant was the non-owner driver of the car which he jointly occupied with his brother; that appellant exhibited nervousness after being stopped for speeding; that there was a spicy odor in the car; and that cocaine was found hidden in a secret compartment over the car's glove box. Such circumstantial evidence, although conclusively establishing appellant's proximity to the cocaine, was insufficient under the well-settled case law of this state to prove he constructively possessed it. See, e.g., Lewis, 570 So.2d 346; A.S. v. State, 460 So.2d 564 (Fla. 3d DCA 1984); Ma...