Wagner v. State

• Decision Date: 09 March 2007
• Docket Number: No. 2D05-1930.,2D05-1930.
• Citation: 950 So.2d 511
• Parties: Donald Ray WAGNER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

950 So.2d 511

Donald Ray WAGNER, Appellant, v. STATE of Florida, Appellee.

No. 2D05-1930.

District Court of Appeal of Florida, Second District.

March 9, 2007.

James Marion Moorman, Public Defender, and Jeffrey M. Hazen, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

Donald Ray Wagner appeals his convictions for possession of cocaine with intent to sell and for possession of paraphernalia. He argues that the State failed to prove that he was in constructive possession of the contraband. We agree and reverse.

The State's evidence at trial reflected that the police executed a search warrant at the home Wagner shared with his girlfriend, Celestine Mitchell. In the couple's bedroom the officers found cocaine, a small scale, baggies, and cash. Except for some of the money, all of the items were concealed from view. Drugs were found under a dresser and in the breast pockets of two men's suits and a shirt that were among the clothes hanging in the closet. The scale and baggies were in a cigar box. An officer testified that when reading the warrant to Wagner prior to the search, the police informed him that they were looking for cocaine on the premises, and they asked if he would cooperate by answering questions. According to the officer, Wagner declined and stated that the police had "planted shit."

Mitchell testified for the defense. She asserted that the drugs belonged to her and that she had concealed them in the house without Wagner's knowledge because he opposed her drug use. She explained that she considered Wagner's suits to be a safe hiding place because he worked in lawn service and never wore a suit unless there was a funeral.

Wagner contends, as he did below, that the State failed to prove that he was in constructive possession of the drugs and paraphernalia. In a constructive possession case, the State's burden is to show beyond a reasonable doubt that the defendant knew of the presence of the contraband and that he had the ability to exercise dominion and control over it. See Diaz v. State, 884 So.2d 387, 389 (Fla. 2d DCA 2004); see also Woods v. State, 765 So.2d 255, 257 (Fla. 2d DCA 2000). Moreover, a special standard applies in circumstantial evidence cases. State v. Law, 559 So.2d 187 (Fla.1989). "Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Id. at 188.

When, as in this case, contraband is found in a location that was accessible to more than one person, a defendant's knowledge of its presence and ability to exercise dominion and control will not be inferred; these elements must be established by independent proof. Woods, 765 So.2d at 257; Diaz, 884 So.2d at 389. This may consist of evidence that the defendant had actual knowledge of the presence of the contraband or evidence of incriminating statements or circumstances, other than simple proximity to the contraband, from which the jury could infer the defendant's knowledge. Woods, 765 So.2d at 257.

In Woods, the police observed a traffic violation and followed the car into a convenience store parking lot. The car was occupied by a driver and two passengers. When the driver exited, a cigar tube fell out of the car, and...