Torres v. State, 87-885

• Decision Date: 09 February 1988
• Docket Number: No. 87-885,87-885
• Citation: 13 Fla. L. Weekly 381,520 So.2d 78
• Parties: 13 Fla. L. Weekly 381 Miguel DeJesus TORRES, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 78

520 So.2d 78

13 Fla. L. Weekly 381

Miguel DeJesus TORRES, Appellant, v. The STATE of Florida, Appellee.

No. 87-885.

District Court of Appeal of Florida,

Third District.

Feb. 9, 1988.

Rehearing Denied March 14, 1988.

William H. Thomas, Bierman, Shohat & Loewy and Ira N. Loewy, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.

Before HENDRY, BASKIN and FERGUSON, JJ.

HENDRY, Judge.

Miguel Torres appeals from a conviction and sentence for trafficking in marijuana. Appellant seeks review of three allegedly reversible errors committed by the trial judge: improper and incorrect comments on the evidence during defense counsel's closing argument; denial of defense counsel's motion for a mistrial based upon the prosecutor's improper and prejudicial cross-examination of the defendant; and denial of defendant's motion for judgment of acquittal where the evidence was insufficient to establish that the defendant had constructive knowledge of the contraband. We reverse.

Approximately three to five miles west of Bimini, two Formula racing boats were spotted on December 1, 1984 by a Metro-Dade police helicopter, as they traveled toward the Florida mainland. After entering state waters, the two boats were intercepted by marine patrol officers and taken to Haulover Marina. One boat was released but the second (driven by the appellant Torres) was detained after an officer detected the smell of fresh fiberglass near the head (bathroom).

Officers unbolted the toilet and pulled up the carpeting, revealing fresh, tacky fiberglass. After breaking through a small hatch, they observed several bales of marijuana in the compartment below. A resulting probe of the rear hull area caused other officers to smash through the two-inch hardened fiberglass deck with sledge hammers. Bales of very dry marijuana estimated to be from five months to a year old were found.

When questioned by police officers, Torres claimed to have no knowledge of the illegal cargo. He stated that the boat was owned by a passenger's mother and that he was on board for the first time in celebration of his birthday. As Torres was being questioned, another officer spoke to one of the passengers who said the boat belonged to her mother and that Torres had been taken out for a birthday ride.

At trial, an expert in narcotics investigation (Officer John Rode) testified as to the procedures used in searching for contraband. As one who directed the search of the boat, the officer described the hatch discovered under the carpeting in the head as very small. He stated that the bales found in the hull could not have entered through the hatch and been pushed through to the rear of the boat because of the hatch size and an intervening latticework of supports. Officer Rode estimated the recovered marijuana to have been from five months to a year old and noted that the boat had changed ownership approximately five months earlier. In his stated opinion, there was no way the marijuana on this boat could have been retrieved without destroying or removing the deck of the boat.

Defense motions for a judgment of acquittal made at the end of the state's case and again at the conclusion of all the evidence were denied. Implicit in the jury's guilty verdict was a finding that Torres had constructive knowledge of the contraband. We disagree with that finding.

When approached by marine patrol officers, Torres was riding with three other persons on a boat which was later found to have old bales of marijuana secreted deep within its hull. Evidence admitted at trial supported Torres' testimony that he had been invited out on the boat by the owner's daughter and that he lacked any knowledge of the presence of marijuana. In order to prove Torres' guilt, the state had to establish, beyond a reasonable doubt, that he had knowingly brought into the state and/or was in actual or constructive possession of the marijuana.

Under Florida law, "actual possession exists where the accused has physical possession of the controlled substance and knowledge of such physical possession." Hively v. State, 336 So.2d 127, 129 (Fla. 4th DCA 1976). "Constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance." Brown v. State, 428 So.2d 250, 252 (Fla.) (quoting Hively, 336 So.2d at 129), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983). To establish constructive possession, the state must show that the accused had dominion and control over the contraband, knew of the presence of the contraband, and was aware of the illicit nature of the contraband. Kuhn v. State, 439 So.2d 291 (Fla. 3d DCA 1983); Brown, 428 So.2d at 252. However, if the contraband is found on premises which are under joint rather than exclusive possession of a defendant, "knowledge of...