VALENTINE BAILEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1983-12-14
No. 83-582
BOARDMAN, A.C.J., and LEHAN, J., concur.
442 So. 2d 385 Florida District Court of Appeal, Second District (1983)

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Synopsis

Valentine Bailey was convicted of trafficking in marijuana and carrying a concealed firearm. The Florida appellate court affirmed the marijuana trafficking conviction but reversed the concealed firearm conviction, finding the circumstantial evidence insufficient to exclude the reasonable hypothesis that his companion placed the gun in the car.


Holding

The court reversed the conviction for carrying a concealed firearm because the circumstantial evidence was insufficient. While a reasonable jury issue existed regarding whether the firearm was concealed, the evidence could not exclude the reasonable hypothesis that Cassandra Taylor carried and placed the gun in the car after appellant entered the warehouse.


Headnotes

[1] Proof of concealment is an essential element of the crime of carrying a concealed firearm.

[2] Circumstantial evidence relied upon to prove an essential element of a crime must be of a conclusive nature and inconsistent with any other reasonable hypothesis but that…

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Key Quotes

“A firearm is on or about one's person if it is in close proximity to him within his easy reach.”

Establishes the legal standard for what constitutes a firearm being "on or about" a person under Florida law.

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Facts & Procedural History

During an undercover operation, police conducted surveillance of a warehouse where a detective had obtained marijuana for resale. Appellant arrived as…

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Opinion of the Court
GRIMES, Judge.

GRIMES, Judge.

Appellant was convicted of trafficking in marijuana and carrying a concealed firearm. He attacks only the latter conviction on this appeal.

In an undercover operation, a Clearwater detective obtained some marijuana for resale. Appellant met the detective at a warehouse for the purpose of purchasing a portion of the marijuana. Police, who had the warehouse under surveillance, testified that appellant arrived in a car driven by Cassandra Taylor. Appellant was seated on the passenger side of the front seat. Appellant went into the warehouse where he remained for approximately an hour and fifteen minutes. Taylor stayed outside with the car. She left the car on two occasions, once to go to some bushes near the warehouse and later to walk to the edge of the warehouse. No other persons approached the car. When appellant was arrested Taylor tried to drive away. The police stopped Taylor’s vehicle and found a gun lying on a towel on the floor of the passenger side. The gun was not visible from outside the car until the passenger door was opened.

Appellant concedes that under the rationale of Ensor v. State, 403 So. 2d 349 (Fla.1981), there was a jury issue as to whether the firearm was concealed. He argues, however, that the evidence was insufficient to prove that the firearm was “on or about his person” as required by section 790.-01(2), Florida Statutes (1981).

A firearm is on or about one’s person if it is in close proximity to him within his easy reach. Sutton v. State, 327 So. 2d 234 (Fla. 1st DCA), cert. denied, 334 So. 2d 608 (Fla.1976). The evidence tending to prove that the gun was on or about appellant’s person was entirely circumstantial, resting primarily upon the fact that when appellant arrived he was seated on the passenger side of the car. A conviction based solely upon circumstantial evidence cannot be sustained unless every reasonable hypothesis of innocence is excluded. McArthur v. State, 351 So. 2d 972 (Fla.1977). It is not enough that the facts create a strong probability of guilt. Owen v. State, 432 So. 2d 579 (Fla. 2d DCA 1983). Here, there was at least a reasonable hypothesis that Cassandra Taylor carried the gun and placed it on the floor of the passenger side of the automobile after appellant went into the warehouse. Hence, the proof by circumstantial evidence failed.

We affirm the judgment and sentence for trafficking in marijuana but reverse the conviction for carrying a concealed firearm.

BOARDMAN, A.C.J., and LEHAN, J., concur.


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