JACK DOWNARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jack Downard appeals four convictions stemming from a theft and drug possession incident. The court affirmed his trespass and felony petit theft convictions but reversed his convictions for cocaine and drug paraphernalia possession due to insufficient evidence of constructive possession in a jointly-occupied vehicle.
The court reversed the convictions for cocaine and drug paraphernalia possession. While proximity to contraband in a vehicle can contribute to a constructive possession case, proximity alone is insufficient, and in jointly-occupied vehicles, knowledge and ability to control the contraband must be established by independent proof, which the State failed to provide here.
[1] To prove constructive possession of contraband found in a vehicle, the state must establish that the accused had dominion and control over the contraband, knew of its pre…
[2] When contraband is found in a jointly occupied vehicle, knowledge of the contraband's presence and the ability to control it cannot be inferred solely from ownership or p…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A defendant will be deemed guilty of constructive possession of drugs when it can be shown that the defendant was able to exercise dominion and control over the drugs, knew of their presence, and knew of their illicit nature.”
Establishes the three-part test for constructive possession that the State must prove
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Join FLexlaw to unlock all legal intelligenceOn October 27, 1999, a Kash n' Karry store manager observed Downard enter the store, heard a theft alarm, and saw him run out and drive away with a fe…
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CASANUEVA, Judge.
Jack Downard appeals four convictions. We reject his challenges to his convictions for trespass and felony petit theft but reverse his convictions for possession of cocaine and possession of drug paraphernalia.
In the evening of October 27, 1999, a night manager of a Kash n’ Karry store in Hillsborough County observed Mr. Dow-nard enter the store. Later, immediately after he heard a sensormatic machine1 trigger and sound an alarm, the manager saw Mr. Downard run from the store, enter a Ford automobile, and leave the store parking lot along with a female passenger. The store manager then called the police and reported a theft of several packages of meat. An officer issued a BOLO2 and, within a short time and only a short distance from the store, Officer Scott Worton stopped the Ford carrying Mr. Downard and his female passenger. In response to Officer Worton’s request for identification, Mr. Downárd gave the false name of John Malcolm. When no driving record turned up on the computer for that name, the officer returned to the Ford and asked Mr. Downard to verify the information. At that time the officer noticed packages of meat on the passenger side of the floorboard. Meanwhile, the Kash n’ Karry manager had arrived at the scene and identified the meat as Kash n’ Karry merchandise and Mr. Downard as the suspected thief.
A subsequent search of the vehicle revealed two illegal items: a piece of crack cocaine in the front console area, only four inches from the driver’s seat in a location easily accessible to driver or passenger; and a small white bottle that had been converted into a crack pipe, in an unspecified location next to the driver’s seat. Mr. Downard was charged with possession of cocaine and of paraphernalia.
Where, as here, the State is unable to offer proof of actual possession, it must prove constructive possession of contraband. Isaac v. State, 730 So. 2d 757, 758 (Fla. 2d DCA 1999). “A defendant will be deemed guilty of constructive possession of drugs when it can be shown that the defendant was able to exercise dominion and control over the drugs, knew of their presence, and knew of their illicit nature.” Davis v. State, 761 So. 2d 1154, 1157 (Fla. 2d DCA 2000).
Although both the crack cocaine and the pipe were found relatively near Mr. Downard, proximity alone will not sustain a constructive possession conviction. Id.; Lopez v. State, 711 So. 2d 563 (Fla. 2d DCA 1997). No other evidence, including fingerprints, linked Mr. Downard to either the crack pipe or the cocaine. This court has held in numerous cases that “[i]n the case of a jointly-occupied vehicle, knowledge and ability to control the contraband may not be inferred, but must be established by independent proof.” E.A.M. v. State, 684 So. 2d 283, 284 (Fla. 2d DCA 1996); see also Cruz v. State, 744 So. 2d 568 (Fla. 2d DCA 1999); K.D.G. v. State, 720 So. 2d 281 (Fla. 2d DCA 1998); Green v. State, 667 So. 2d 208 (Fla. 2d DCA 1995). As in E.A.M., Cruz, K.D.G., and Green, the State failed to present independent proof that the defendant knew of the presence of the drugs or their illicit nature, or that he had the ability to control the drugs; as in all of those cases, the convictions cannot stand.
Affirmed in part; reversed in part; and remanded for new sentencing at which Mr. Downard should be present.
WHATLEY, A.C.J., and GREEN, J., Concur. . A sensormatic machine is a device that plays a recorded message indicating that merchandise bearing a sensor is being removed from a store.
. “Be on the lookout.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hargrove v. State, 928 So. 2d 1254 (Fla. 2d DCA 2006)…he pipe and residue or demonstrating his knowledge of their presence or illicit nature. Because Hargrove was not in actual possession of the pipe, the State had to establish his constructive possession of the pipe and residue. See Downard v. State, 793 So. 2d 83, 84 (Fla. 2d DCA 2001); Skelton v. State, 609 So. 2d 716, 716-17 (Fla. 2d DCA 1992). In a constructive possession case, it is the State’s burden to “prove beyond a reasonable doubt that the defendant knew of the presence of the illegal items, was ab…
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K.A.K. v. State, 885 So. 2d 405 (Fla. 2d DCA 2004)…s, was able to exercise dominion and control over them, and knew of their illicit nature. Smith v. State, 687 So. 2d 875 (Fla. 2d DCA 1997). A defendant’s mere proximity to the illegal items is insufficient to sustain a conviction. Downard v. State, 793 So. 2d 83 (Fla. 2d DCA 2001) (holding that in a jointly-occupied vehicle proximity to contraband alone cannot sustain a constructive possession conviction). We cannot distinguish K.A.K’s case from a very similar recent case in this court, D.M.C. v. State, 869…
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Watson v. State, 961 So. 2d 1116 (Fla. 2d DCA 2007)…. See Hargrove v. State, 928 So. 2d 1254, 1256 (Fla. 2d DCA 2006). To do so, the State had to show beyond a reasonable doubt that Watson knew of the presence of the illegal items and was able to exercise control over them. See id.; Downard v. State, 793 So. 2d 83, 84-85 (Fla. 2d DCA 2001). Because Watson was in a jointly occupied vehicle, those elements could not be inferred from his mere proximity to the contraband but had to be shown by independent proof. Hargrove, 928 So. 2d at 1256; K.A.K. v. State, 885…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 761 So. 2d 1154 (Fla. 2d DCA 2000)
- Isaac v. State, 730 So. 2d 757 (Fla. 2d DCA 1999)
- E.A.M. v. State, 684 So. 2d 283 (Fla. 2d DCA 1996)
- Chastity Anne Cruz v. State, 744 So. 2d 568 (Fla. 2d DCA 1999)
- Alton Hill v. State, 667 So. 2d 208 (Fla. 1st DCA 1995)
- Green v. State, 667 So. 2d 208 (Fla. 2d DCA 1995)
- Lopez v. State, 711 So. 2d 563 (Fla. 2d DCA 1997)
- K.D.G. v. State, 720 So. 2d 281 (Fla. 2d DCA 1998)