Wilcox v. State, 86-2861

• Decision Date: 12 April 1988
• Docket Number: No. 86-2861,86-2861
• Citation: 13 Fla. L. Weekly 937,522 So.2d 1062
• Parties: 13 Fla. L. Weekly 937 Clevent D. WILCOX, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1062

522 So.2d 1062

13 Fla. L. Weekly 937

Clevent D. WILCOX, Appellant, v. The STATE of Florida, Appellee.

No. 86-2861.

District Court of Appeal of Florida Third District.

April 12, 1988.

Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Ralph Barreira, Asst. Atty. Gen., for appellee.

Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.

NESBITT, Judge.

Clevent D. Wilcox was convicted for the unlawful possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes (1985). At trial, the judge denied Wilcox's motions for judgment of acquittal at the conclusion of the state's evidence and at the close of all the evidence and his request to instruct the jury that knowledge of the gun's presence is an essential element of the crime involved. Wilcox appeals.

Wilcox was observed entering a Metrorail station accompanied by his girlfriend. After climbing over the turnstile without paying the fare, they ascended the stairs leading to the passenger-loading platform and seated themselves on a bench to wait for a train. Police officers pursued to apprehend them for fare evasion. As the officers approached the pair, they advised Wilcox that he was under arrest; Wilcox immediately grabbed the canvas tote bag which was on the seat between him and his girlfriend. Upon examining the contents of the bag, the police officer discovered a handgun. Wilcox was arrested and charged with the unlawful possession of a firearm by a convicted felon. At trial, Wilcox's girlfriend testified that she had placed the gun in his tote bag the night before the arrest without advising him.

To sustain a conviction for violation of section 790.23, there must be proof that the defendant is a convicted felon, that the object found was a firearm, and that the defendant was in possession of the weapon. § 790.23(1), Fla.Stat. (1985). After Wilcox stipulated to the first two elements, the only element remaining to be proved was that Wilcox was in possession of the gun. Possession may be either actual or constructive. See Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976); Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975). Actual possession exists where an accused has physical possession of the prohibited object and knowledge of such physical possession. Hively, 336 So.2d at 129. Constructive possession exists where the accused, while without physical possession of the prohibited object, knows of its presence on or about his premises and has the ability to maintain control over the prohibited object. Id. Because Wilcox did not have the gun on his person, there must be proof that he had constructive possession of the weapon.

Wilcox claims that he is entitled to a judgment of acquittal because the state failed to prove that the gun was in his possession. He contends that his girlfriend had complete and independent access to his tote bag which thereby constituted joint control over its contents. If there was joint control or access to the tote bag, as Wilcox contends, there must be direct evidence that he knew the gun existed and had the ability to maintain control over it. See Smith v. State, 279 So.2d 27 (Fla.1973); Coley v. State, 393 So.2d 60 (Fla. 3d DCA 1981); Clark v. State, 359 So.2d 458 (Fla. 3d DCA 1978), cert. denied, 366 So.2d 880 (Fla.1979). However, if he had exclusive possession and control of the bag, his knowledge of the gun may be inferred from the circumstances. Fedor v. State, 483 So.2d 42 (Fla. 2d DCA), review denied, 492 So.2d 1331 (Fla.1986); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967); Maloney v. State, 146 So.2d 581 (Fla. 2d DCA 1962).

When considering a motion for judgment of acquittal, the court construes all facts adduced in evidence as admitted by the defendant and draws every conclusion favorable to the state which is fairly and reasonably inferable from that evidence. Spinkellink v. State, 313 So.2d 666, 670 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). Although both Wilcox and his girlfriend testified that they had equal access to and use of the tote bag, the evidence shows that it belonged to Wilcox. Wilcox's girlfriend claims she did not advise Wilcox that she had placed the gun in the bag and he claims that he was not aware that it was there. However, when the police officers approached him, he immediately grabbed the bag. Viewing this evidence in the light most favorable to the state, the trier of fact might disbelieve the testimony of the defendant and his girlfriend and conclude that Wilcox had exclusive possession of the bag and knew about the weapon's existence. Thus, the trial court correctly denied the motions for judgment of acquittal.

Having concluded that Wilcox was properly denied judgment of acquittal, it is necessary to determine whether he had joint or exclusive possession of the tote bag and whether he had the requisite knowledge to establish possession. These issues were for the jury to decide.

Wilcox contends that the trial court erred in denying his request that the jury be instructed on the knowledge element necessary to convict him of the offense of unlawful possession of a firearm by a convicted felon. We agree. Just as in cases involving the possession of drugs, in order to prove...