Hill v. State, 1D03-0200.
| Decision Date | 13 May 2004 |
| Docket Number | No. 1D03-0200.,1D03-0200. |
| Citation | 873 So.2d 491 |
| Parties | John Nicholas HILL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
Charles J. Crist, Jr., Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
John Nicholas Hill seeks reversal of his conviction for trafficking in cocaine in an amount of more than 200 grams but less than 400 grams on the ground that the trial court erred in denying his motion for a judgment of acquittal. We agree and reverse the conviction, and we remand for entry of a conviction for possession of cocaine.
The denial of a motion for a judgment of acquittal is reviewed under the de novo standard. State v. Williams, 742 So.2d 509 (Fla. 1st DCA 1999). The evidence adduced at trial revealed that Hill was arrested following execution of a search warrant in an apartment where he was found sleeping. Also sleeping in the apartment, in the same bedroom as Hill, was a female friend, Natasha Kyser, who was the leasor of the apartment. The search warrant referenced Donald Butler, the brother of Kyser, who was not in the apartment at the time of the search. Also referenced on the search warrant was an individual identified only as "Nick." A police officer testified that Hill admitted to the nickname "Nick" after his arrest. Kyser was not named in the search warrant.
The evidence further revealed that two separate, sizable caches of cocaine were found; each was found hidden in voids under drawers in the bottom of a separate dresser. One of the caches consisted of powered cocaine and the other of "crack" cocaine. A smaller amount of powdered cocaine, .4 grams, was found on the window sill behind the bed where Hill and Kyser were found sleeping. On a dresser in that bedroom was found a scale and a wire whip, which was still in the store packaging. Police testified that such items were used in the manufacture and sale of crack cocaine. Another scale was found in a hall closet. Another whip was found in the kitchen. Plastic cups, which police said were frequently used to store processed cocaine as it hardened, were found in a kitchen cupboard. Small plastic bags, similar to the bags containing cocaine, were found in the kitchen garbage can.
At trial a police officer testified that, as police were searching the bedroom where the entire quantum of cocaine was found, Hill, who was in the living room with Kyser and a police officer, was heard to say, "they found it." The appellant testified that during the search he heard the police officers say to each other "we found it" and then he turned to Kyser and asked "they found it?" While men's clothing was found in the apartment, the prosecution did not establish at trial that the clothing was appellant's. Hill's fingerprints were not found in the apartment.
At the close of the State's case, the defense moved for a judgment of acquittal arguing the prosecution had not proved all of the elements of constructive possession. The trial court denied the motion, noting that Hill's statement, "they found it," constituted sufficient proof to withstand a motion for a judgment for acquittal. The jury returned a verdict finding appellant guilty of trafficking in cocaine and possession of drug paraphernalia. Appellant has not appealed the latter conviction.
Appellant was convicted for trafficking more than 200 grams, but less than 400 grams, of cocaine in violation of section 893.135(1)(b)1.b., Florida Statutes (2002). As was explained in Earle v. State, 745 So.2d 1087, 1088-9 (Fla. 4th DCA 1999), the cocaine trafficking statute prohibits one from "knowingly" being "in actual or constructive possession" of a certain quantity of cocaine. Where, as in this case, a defendant was not in actual possession of cocaine, the State must establish constructive possession. Proof of constructive possession is established when a defendant does not have physical possession of contraband but (1) knows it is within his presence, (2) has the ability to maintain control over it, and (3) knows of the illicit nature of the contraband. Id.; see also Brown v. State, 428 So.2d 250, 252 (Fla.1983), and Dupree v. State, 705 So.2d 90, 94 (Fla. 4th DCA 1998). If contraband is found in a place that is in joint, rather than exclusive, possession of a defendant, the defendant's knowledge of the contraband's presence and the ability to control it cannot be inferred from the defendant...
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