State v. Snyder

• Decision Date: 27 April 1994
• Docket Number: No. 92-02265,92-02265
• Citation: State v. Snyder, 635 So.2d 1057 (Fla. App. 1994)
• Parties: 19 Fla. L. Weekly D1021 STATE of Florida, Appellant, v. Allan David SNYDER, Appellee.
• Court: Florida District Court of Appeals

Page 1057

635 So.2d 1057

19 Fla. L. Weekly D1021

STATE of Florida, Appellant, v.Allan David SNYDER, Appellee.

No. 92-02265.

District Court of Appeal of Florida Second District.

April 27, 1994.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Brenda S. Taylor, Asst. Atty. Gen., Tampa, for appellant.

Rochelle A. Reback, Tampa, for appellee.

THREADGILL, Judge.

The state appeals an order dismissing an information charging the appellee, Allan David Snyder, with possession of methamphetamine on May 23, 1991, in violation of section 893.13(1)(f), Florida Statutes(Supp.1990).We affirm.

Snyder filed a sworn motion to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), alleging that there were no material disputed facts and that the undisputed facts did not establish a prima facie case of guilt of possession.

The motion set forth the following facts, which the state does not dispute.Tampa police were investigating Snyder's codefendant John Parker for receiving controlled substances at Parker's post office box via Federal Express and UPS.On May 22, 1991 police executed a search warrant upon a Federal Express package at Parker's post office box and discovered one-half ounce of methamphetamine.The next day Snyder and Parker, friends since high school, met for lunch.Parker drove.After lunch, Parker stopped at his post office box; Snyder admits knowing that Parker was expecting the arrival of contraband.Parker went into the post office while Snyder remained in the car.Parker returned with the methamphetamine.As he was driving Snyder back to his car which was parked at an area mall, Parker offered to let Snyder try some of the methamphetamine.Parking near Snyder's car, Parker poured two lines of methamphetamine onto a cassette case and placed the rest underneath his seat.Police arrived and arrested them before Parker had completed forming the lines.

Parker's affidavit, attached to the motion to dismiss, asserted that Snyder had not achieved actual possession of the methamphetamine and that he lacked constructive possession of the substance, because he had no right or opportunity to exercise dominion and control over it; the affidavit also alleged that Snyder had not participated in the purchase or delivery.

The state's traverse merely set forth facts that were undisputed by Snyder, that Snyder had prior knowledge of the delivery and intended to try some of the methamphetamine had police not intervened.The other allegations set forth in the traverse merely argue that the facts as alleged in the traverse amount to constructive possession.However, none of the factual allegations of the traverse give rise to a primary inference of dominion and control.The trial court dismissed the information on the undisputed facts because of the absence of any evidence of dominion and control by Snyder.We agree with this ruling.

Constructive possession requires proof that the defendant had dominion and control over the contraband and that he knew of its presence and illicit nature.Brown v. State, 428 So.2d 250(Fla.1983).Mere proximity to contraband is not sufficient to establish dominion and control.Hons v. State, 467 So.2d 829(Fla. 2d DCA1985).Although Parker had offered to let Snyder try some of the methamphetamine, there was no evidence or factual assertions in the traverse from which to infer that Snyder had the right to compel Parker to fulfill his promise.The ability to reduce a controlled substance to one's actual possession was the key to the definition of constructive possession in Daudt v. State, 368 So.2d 52(Fla. 2d DCA), cert. denied, 376 So.2d 76(Fla.1979).In Daudt, this court found no dominion and control where there was no evidence from which to infer that a broker to a sale of marijuana could have personally carried through with the sale or forced the seller to close.The Fourth District came to the same conclusion in Roberts v. State, 505 So.2d 547(Fla. 3d DCA1987), approved, Campbell v. State, 577 So.2d 932(Fla.1991), where the defendants had a contractual right to marijuana having paid for it, but where they were not yet able to reduce it to their possession because it was still in possession of the undercover officers, who were carrying the bales into the house, when the defendants were arrested.

The state argues that Snyder's proximity to the contraband together with his prior knowledge of the delivery and intent to try some of the substance gives rise to the inference that Snyder had a proprietary interest in the methamphetamine.For these facts to give rise to constructive possession, one must infer from the proprietary interest that Snyder had dominion and control.This reasoning is untenable because neither inference can be deduced from the available facts and because the ultimate existence of constructive possession requires an impermissible pyramiding of inferences.SeeI.F.T. v. State, 629 So.2d 179(Fla.1993).The interpretation of the facts in the light most favorable to the state establishes no proprietary right in Snyder, see Daudt, nor any immediate right to reduce the methamphetamine to his possession, see Roberts, because Parker had not yet relinquished control over the line he was organizing for their use.

The undisputed facts show that police interrupted Parker before he had given Snyder a sample of the drug.The state's interpretation of the facts presumes that Parker had made an irrevocable gift to Snyder and deprives Snyder of the right to change his mind about accepting delivery.

A motion to dismiss shall be denied upon the filing of a traverse specifically denying the allegations of the motion only if the traverse creates a dispute as to material evidentiary facts, not if the traverse only disputes the legal effect of undisputed facts.State v. Hysell, 569 So.2d 866(Fla. 5th DCA1990).Where the undisputed facts do not establish a prima facie case, the trial court does not err in dismissing the information.State v. Morse, 399 So.2d 470(Fla. 2d DCA1981).We think the trial court properly granted the motion to dismiss in this case and affirm the order dismissing the information.

Affirmed.

RYDER, A.C.J., concurs.

SCHOONOVER, J., dissents with opinion.

SCHOONOVER, Judge, dissenting.

Since I disagree with the majority opinion in several respects, I must respectfully dissent.

First, even if we accepted the appellee's position without question, we should not affirm the trial court.In considering a motion under rule 3.190(c)(4), the facts must be considered in the light most favorable to the prosecution and must clearly demonstrate that no crime, or one lesser than the one charged, was committed before relief can properly be granted under the rule.State v. Bruner, 526 So.2d 1076(Fla. 5th DCA1988).In this case, as mentioned above, if we accept the appellee's position and conclude that the state did not even present a prima facie case in connection with the crime charged, i.e. possession of methamphetamine, the case should not be affirmed but should be remanded for further proceedings on the lesser included charge of attempted possession of methamphetamine.SeeRoberts v. State, 505 So.2d 547(Fla. 3d DCA1987);Garces v. State, 485 So.2d 847(Fla. 3d DCA1986).

Next, the state filed a sworn traverse to the appellee's motion, and because the traverse was sufficient, the motion should have been denied.The appellee admitted that he had knowledge of the nature of the contraband and its presence in the automobile and only contested his dominion and control.The state's traverse not only denied that the appellee could not reduce any of the contraband to his dominion and control, but also added facts which established that the appellee had knowledge that the codefendant was expecting to receive the methamphetamine in the mail when the appellee and the codefendant went to lunch and stopped at the post office box.These added facts together with the other information contained in the motion and attachments were material facts concerning dominion and control.When material facts are specifically denied by the state's sworn traverse, as in this case, the trial court has no discretion and must deny the motion.State v. Radandt, 410 So.2d 665(Fla. 4th DCA1982);State v. Johnson, 398 So.2d 500(Fla. 3d DCA1981).

Last, even if the state had not filed a sworn traverse, on the facts presented to us by the appellee himself, the court should have denied his motion.A proceeding under rule 3.190(c)(4) is the equivalent of a civil summary judgment proceeding and the trial court may not try or determine...