Span v. State, 98-0623.

• Decision Date: 28 April 1999
• Docket Number: No. 98-0623.,98-0623.
• Citation: 732 So.2d 1196
• Parties: Willie SPAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

732 So.2d 1196

Willie SPAN, Appellant, v. STATE of Florida, Appellee.

No. 98-0623.

District Court of Appeal of Florida, Fourth District.

April 28, 1999.

Rehearing Denied June 8, 1999.

Robert C. Stone of Robert C. Stone, P.A., Boca Raton, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant, Willie Span, was tried by jury and convicted of trafficking in cocaine, possession of marijuana, and fleeing a police officer. Span challenges each of these three convictions. We affirm Span's conviction for fleeing a police officer. We reverse, however, Span's convictions for trafficking and possession, finding error in the trial court's denial of his motion for judgment of acquittal.

A motion for judgment of acquittal should be granted when the evidence presented by the State is legally insufficient to prove the crimes charged, and the State may not rely on evidence presented in the defense's case to supply the missing elements necessary to prove its case. See State v. Pennington, 534 So.2d 393, 394 (Fla.1988). In the instant case, both the trafficking and possession charges are premised upon Span's constructive possession of the contraband found at the Mayo Street residence.

To establish constructive possession of a controlled substance, the state must show that the accused had dominion and control over the contraband, that he must have knowledge that the contraband was within his presence, and he must have knowledge of the illicit nature of the contraband. [citations omitted]. If the premises on which the contraband is found is in joint, rather than exclusive, possession of a defendant, knowledge of the presence of the contraband on the premises and the accused's ability to maintain control over it will not be inferred, but must be established by independent proof. [citations omitted]. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances, other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises. [citations omitted]. Mere proximity to contraband is not sufficient to establish constructive possession. [citations omitted].

Dupree v. State, 705 So.2d 90, 94 (Fla. 4th DCA)(en banc), review dismissed, 725 So.2d 1107 (Fla.1998).

Relying solely on the evidence presented by the State, the police were trying to set up a drug transaction with appellant. The tapes of the conversation played in the main case are mostly inaudible. In addition, there was no mention of what was being sold or the quantity. The officers staked out what they believed to be appellant's residence. At about 2 p.m. on the day of the transaction, appellant was seen entering the home. About seventeen minutes later he left. There was no evidence whether he had anything in his hand at that time. As he was proceeding in the general direction of the location mentioned in the tape, the officers attempted to stop him. Appellant then...