OSVALDO MARTINEZ DIAZ, A/K/A OSWALDO MARTINEZ DIAZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Osvaldo Martinez Diaz was convicted of marijuana possession after police found bags of marijuana on a porch near where he was squatting. The Florida Third District Court of Appeal reversed, holding that evidence of uncharged collateral crimes was inadmissible and that the state failed to prove constructive possession because the defendant merely had proximity to the contraband without dominion or control.
The court reversed the conviction on two grounds: (1) the trial court erred in admitting evidence of an uncharged collateral criminal act because it was inadmissible character evidence lacking relevance to the charged offense, and (2) the evidence was insufficient to establish constructive possession because the defendant's mere proximity to the contraband, without proof of dominion or control, joint occupancy, or a relationship with the premises owner, was legally insufficient.
[1] Evidence of an uncharged criminal act is inadmissible when it merely shows the bad character or propensity of the accused.
[2] Collateral crime evidence that is irrelevant and prejudicial should not be admitted.
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Join FLexlaw to unlock all legal intelligence“Evidence of an uncharged criminal act is inadmissible when it merely shows the bad character or propensity of the accused.”
Establishes the legal principle prohibiting collateral crime evidence absent proper relevance
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Join FLexlaw to unlock all legal intelligencePolice observed appellant squatting on a front porch of an apartment building with a companion near several bags of marijuana. A small amount of marij…
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PER CURIAM.
Appellant Osvaldo Martinez Diaz seeks reversal of a judgment of conviction entered upon a jury verdict finding him guilty of possession of more than twenty grams of marijuana in violation of section 893.13, Florida Statutes (1983). Sentencing was withheld and a three year probationary term was imposed with the special condition that appellant serve three months in the Monroe County Jail.
It is urged by appellant that reversal is required on the grounds that: (1) the trial court erred in permitting the admission into evidence of a collateral criminal act which was not charged in the information, and (2) the court erred in denying appellant’s motion for judgment of acquittal where the evidence failed to show he had the ability to exercise dominion or control over the marijuana which was found on a porch near him.
We find merit in both contentions and reverse with directions that appellant be adjudicated not guilty and discharged.
First, the court erred in admitting testimony that a small amount of marijuana and appellant’s shirt were found in a car belonging to his brother and parked in front of the apartment building where appellant was seen “squatting” down on a front porch, with a companion, near several bags of marijuana. Evidence of an uncharged criminal act is inadmissible when it merely shows the bad character or propensity of the accused. Williams v. State, 110 So. 2d 654 (Fla.1959); § 90.404(2)(a), Fla.Stat. (1983).
In view of the insufficiency of the evidence to connect appellant with the car and the marijuana found therein, this collateral crime evidence was irrelevant as well as prejudicial, and should not have been admitted. See Williams v. State; Chapman v. State, 417 So. 2d 1028 (Fla. 3d DCA 1982); Malcolm v. State, 415 So. 2d 891 (Fla. 3d DCA 1982).
Moreover, the evidence adduced was insufficient to establish appellant’s constructive possession of the contraband. It was not shown that appellant had dominion or control over the marijuana that he was seen looking at and “squatting” down nearby on the porch. There were two others with appellant on the porch when the police officer first observed them; the third quickly went inside the apartment when he saw the officer; other persons were also found to be sleeping inside. Further, there was no proof that appellant owned or jointly occupied the premises. Cf. Brown v. State, 428 So. 2d 250 (Fla.), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983) (constructive possession shown by joint occupancy of premises where contraband is discovered in plain view of owner or occupant).
Since the state failed to prove that appellant regularly occupied the apartment or had a relationship with its owner or renter, appellant’s mere proximity to the contraband, without more, was legally insufficient to prove possession. Johnson v. State, 456 So. 2d 923 (Fla. 3d DCA 1984).
For the reasons stated, the judgment of conviction is reversed and the case remanded with directions to discharge the appellant.
Reversed and remanded.
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Agee v. State, 522 So. 2d 1044 (Fla. 2d DCA 1988)…e not sufficient circumstantial evidence to establish the requisite knowledge. Under the peculiar circumstances in Tanksley the defendant’s fingerprint on the envelope was also insufficient evidence of his awareness of the heroin. In Diaz v. State, 467 So. 2d 1061 (Fla. 3d DCA 1985), a man was squatting on a porch and appeared to be looking at bags of marijuana. This was found to be insufficient to establish the defendant’s constructive possession of the marijuana or that he had dominion or control over the c…
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Roberts v. State, 505 So. 2d 547 (Fla. 3d DCA 1987)…the contraband, knew the contraband was within his presence, and knew of the illicit nature of the contraband.” Brown v. State, 428 So. 2d 250, 252 (Fla.1983) (quoting Hively v. State, 336 So. 2d at 129) (citations omitted). Accord Diaz v. State, 467 So. 2d 1061 (Fla. 3d DCA 1985); Muwwakil v. State, 435 So. 2d 304 (Fla. 3d DCA 1983); Kickasola v. State, 405 So. 2d 200 (Fla. 3d DCA 1981); Winchell v. State, 362 So. 2d 992 (Fla. 3d DCA 1978); Harris v. State, 307 So. 2d 218 (Fla. 3d DCA 1974). As to the oth…
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Edwards v. State, 532 So. 2d 1311 (Fla. 1st DCA 1988)…. The court noted the box was found in a public place, there were others present, and there was no evidence Agee had touched the box. The court also discussed two similar cases, Tanksley v. State, 332 So. 2d 76 (Fla. 2d DCA 1976), and Diaz v. State, 467 So. 2d 1061 (Fla. 3d DCA 1985). . Collier was arrested while sitting on a concrete wall in a drug trafficking area. A package on the ground near him was later found to contain cocaine. The court held there was no evidence that Collier had ever possessed the pa…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Brown v. State, 428 So. 2d 250 (Fla. 1983)
- Strickland v. Roosevelt Cnty. Rural Elec. Coop., 463 U.S. 1209 (U.S. 1983)
- Sena v. United States, 463 U.S. 1209 (U.S. 1983)
- Westley Johnson v. State, 456 So. 2d 923 (Fla. 3d DCA 1984)
- Anderson Beck v. State, 415 So. 2d 891 (Fla. 3d DCA 1982)
- Chapman v. State, 417 So. 2d 1028 (Fla. 3d DCA 1982)