Lindsey v. State, 1D00-3007.
| Decision Date | 13 September 2001 |
| Docket Number | No. 1D00-3007.,1D00-3007. |
| Citation | 793 So.2d 1165 |
| Parties | Arthur James LINDSEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Kenneth D. Pratt, Senior Assistant Attorney General, Tallahassee, for Appellee.
Appellant, Arthur James Lindsey, seeks review of his conviction and sentence for trafficking in cocaine and possession of cannabis on the grounds that the trial court erred in denying his motion for judgment of acquittal. Concluding that the state failed to establish the essential element of constructive possession, we reverse.
On April 27, 1997, Appellant was a passenger in a vehicle that was stopped for careless driving. The driver, with Appellant still in the vehicle, fled in the vehicle from the stop. A chase ensued. Both the driver and Appellant exited the vehicle and fled from the vehicle. They were apprehended after a chase on foot. A search of the vehicle produced two guns but no drugs. The arresting officer retraced the path of the pursuit, approximately three hours after the incident; he discovered a plastic grocery bag containing cocaine, marijuana, and two bullets beside an interstate exit ramp which the fleeing car had passed when exiting the interstate. Appellant acknowledged that he knew there were guns and drugs in the car. Appellant was also able to accurately describe the way the drugs were packaged. Appellant stated that the drugs were not his and denied that he had handled them.
Appellant was charged with trafficking in cocaine, possession of a firearm by a convicted felon and possession of more than 20 grams of cannabis. The firearm possession charge was severed. Following jury trial, Appellant was found guilty, as charged, of trafficking in cocaine and possession of more than 20 grams of cannabis. Appellant was sentenced to concurrent sentences of 60.56 months. This appeal followed.
Appellate review of a trial court's denial of a motion for judgment of acquittal is de novo. See State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999)
. The motion for judgment of acquittal in the instant proceeding alleged that the state failed to present a prima facie case of possession of the contraband.
In the instant case, the state was required to prove constructive possession, as there was no evidence of actual possession. "Constructive possession" exists where a defendant does not have actual physical possession of contraband but knows of its presence and has the ability to exercise and maintain control over the contraband. See Brown v. State, 428 So.2d 250 (Fla.1983)
. To show constructive possession, the state must demonstrate that the defendant exercised dominion and control over the contraband, had knowledge of the presence of the contraband and had knowledge of the illicit nature of the substance. See Hill v. State, 736 So.2d 133 (Fla. 1st DCA 1999). In the instant proceeding, there was no dispute that Appellant had knowledge of the presence of the contraband and its illicit nature. Thus, the state had to prove the remaining element of constructive possession, that Appellant exercised dominion and control over the contraband.
The state relies on the following evidence as being sufficient to establish constructive possession: 1) Appellant fled from the officers during a normal traffic stop;1 2) Appellant knew of the presence of the drugs and how they were packaged; 3) the car in which Appellant was a passenger was traveling at a very high rate of speed on a very sharp turn; 4) the contraband was found on the right side of the shoulder of the road on the ramp.
However, Appellant's being close enough to the bag to describe its contents, and his sitting on the same side of the car closest to the side of the highway where contraband was discovered, do not establish that Appellant exercised dominion and control over the bag. See Agee v. State, 522 So.2d 1044 (Fla. 2d DCA 1988)
. Proximity to contraband, standing alone, is insufficient to establish possession. See id. In Agee, an officer discovered a matchbox containing heroin approximately one foot from where the defendant had been found crouching. This evidence was insufficient to establish possession. Id. at 1046. See also Tanksley v. State, 332 So.2d 76 (Fla. 2d DCA 1976)(defendant's being located 15 feet from the public place where officers found heroin did not establish possession, even though defendant's fingerprints were found on an envelope located in the same place as the heroin packets). Further, this Court found insufficient evidence to establish constructive possession where cocaine was located "just barely" under the front seat on the driver's side...
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Taylor v. State
...to control it cannot be inferred merely from the defendant's proximity to the contraband. Brown, 428 So.2d at 252; Lindsey v. State, 793 So.2d 1165, 1167 (Fla. 1st DCA 2001); Earle v. State, 745 So.2d 1087, 1089 (Fla. 4th DCA 1999); Walker v. State, 741 So.2d 1144, 1145-46 (Fla. 4th DCA 199......
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Lewis v. State
...2004); Diaz v. State, 884 So.2d 387, 388 (Fla. 2d DCA 2004); State v. Bell, 882 So.2d 468, 470 (Fla. 5th DCA 2004); Lindsey v. State, 793 So.2d 1165, 1166 (Fla. 1st DCA 2001). Moreover, where possession of the contraband is joint, the State must present additional evidence to support the in......
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...support of his argument, Wright cites cases from other jurisdictions that overturned jury convictions based on insufficient evidence. In Lindsey v. State, the Florida District Court of Appeal overturned a conviction for failure to prove constructive possession of a passenger-defendant where......
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McKire v. State
...were at the gas station around the same time. But this isn't sufficient to support a possession conviction. See Lindsey v. State , 793 So.2d 1165, 1167 (Fla. 1st DCA 2001) ("When the contraband is found in a public place, more than mere proximity to the defendant must be shown to sustain a ......