Opinion
No. 4D11–4298.
2013-05-29
Erskine McKINLEY, Appellant, v. STATE of Florida, Appellee.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Nelson E. Bailey, Judge; L.T. Case Nos. 06CF014163AXXX and 06CF015415AXXX. Douglas Duncan of Roth & Duncan, P.A., West Palm Beach, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Nelson E. Bailey, Judge; L.T. Case Nos. 06CF014163AXXX and 06CF015415AXXX.
Douglas Duncan of Roth & Duncan, P.A., West Palm Beach, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
We reverse the circuit court's finding that the appellant violated his probation by possessing a firearm in Houston, Texas.
Law enforcement officers watched the appellant go in and out of an apartment in Houston with as many as “five other males” and two women. After the appellant left the premises, the officers searched the apartment, where they found a closed opaque pistol case in a bedroom, and the appellant's Florida ID within two to three feet of the case. Upon opening the case, the officers found a pistol inside.
At least four other men were staying in the bedroom with the appellant. One of the men, Kevrick Brown, told a detective that he, not the appellant, owned and possessed the gun. This admission was then corroborated after a detective learned that the gun had been stolen in Tampa, the city where Brown lived. Additionally, the trial judge found that the DNA evidence indicating that the appellant had handled the gun was “weak,” and a Palm Beach County detective interviewed three of the men who used the bedroom, all three of whom denied seeing the appellant in possession of the pistol.
Under such circumstances, the State failed to prove by a preponderance of the evidence that the appellant possessed a firearm in violation of his probation. “To sustain a violation of probation, the State must prove, by a preponderance of the evidence, that the defendant willfully and substantially violated the terms of his probation.” Mata v. State, 31 So.3d 257, 259 (Fla. 4th DCA 2010).
Although the parties agree that the appellant did not actually possess the firearm, they dispute whether he constructively possessed it. “In order to establish constructive possession, the State must prove that the defendant had knowledge of the presence of the [contraband] and the ability to exercise dominion and control over the same.” Ubiles v. State, 23 So.3d 1288, 1291 (Fla. 4th DCA 2010) (quoting Martoral v. State, 946 So.2d 1240, 1242–43 (Fla. 4th DCA 2007)). However, “the concepts of ‘dominion’ and ‘control’ involve more than the mere ability of the defendant to reach out and touch the item of contraband.” Martoral, 946 So.2d at 1243.
Here, the pistol was found in a closed pistol case in a room cohabitated by at least five men, including appellant. On the day of the search, officers observed four to five men and two women leaving the apartment. Consequently, since the pistol was not found in an area over which appellant had exclusive possession, his knowledge of the contraband and his ability to maintain control over it are not presumed. See Sinclair v. State, 50 So.3d 1223, 1225–26 (Fla. 4th DCA 2011).
As a result, the State was required to establish independent proof of the appellant's knowledge of the contraband's presence and his ability to control it. Blackshear v. State, 771 So.2d 1199, 1201 (Fla. 4th DCA 2000). “ ‘Such proof may consist either of evidence of actual knowledge of the contraband's presence or evidence of incriminating statements and circumstances from which [the fact finder] might lawfully infer the accused's actual knowledge of the presence of contraband.’ “ Ogle v. State, 820 So.2d 1054, 1056 (Fla. 4th DCA 2002) (quoting Moffatt v. State, 583 So.2d 779, 781 (Fla. 1st DCA 1991)). “It is conceivable that an accused might be well aware of the presence of the substance but have no ability to maintain control over it.” Jean v. State, 638 So.2d 995, 996 (Fla. 4th DCA 1994)).
The State failed to meet this burden. Although the appellant's Florida ID was in the bedroom along with his insulin, the presence of the multiple men in the bedroom overcomes this evidence of constructive possession. The pistol was concealed in a case at the time it was found. See Ubiles, 23 So.3d at 1291–92 (finding firearms not to be in the driver's constructive possession where they were found in a locked glove box on passenger's side of vehicle). The pistol was not in plain view. There was no evidence as to when the gun case was placed in the bedroom. Kevrick Brown of Tampa claimed ownership of the gun, and the gun was reported stolen in Tampa.
Evans v. State, 32 So.3d 188 (Fla. 1st DCA 2010), supports the conclusion that the State failed to establish constructive possession in this case. In Evans, the State presented evidence that it found the defendant's passport inside a duffel bag. Id. at 189. The duffel bag also contained a small toiletry bag, in which police discovered a glass smoking device and controlled substances. Id. The State relied “solely upon the presence of [the defendant's] passport in the outer duffel bag to argue that it made a satisfactory prima facie case of possession of the contraband secreted inside the travel toiletry bag.” Id. at 190.
In reversing the defendant's constructive possession conviction, the second district held that the State failed to meet its burden because several other individuals frequently visited and occupied the premises, the State did not identify the owner of the duffel bag, the State did not provide a time frame as to when the contraband was placed in the bag, and the State did not present any evidence showing the defendant had knowledge or dominion over the contraband. Id. at 190–91; see also, e.g., N.K.W. v. State, 788 So.2d 1036 (Fla. 2d DCA 2001); S.B. v. State, 657 So.2d 1252 (Fla. 2d DCA 1995).
We reverse that aspect of the violation of probation finding based on the appellant's possession of the firearm and remand to the circuit court for resentencing.