J.G., A CHILD, APPELLANT,
v.
STATE OF FLORIDA APPELLEE
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A minor (J.G.) was adjudicated delinquent for marijuana possession based on a white paper containing marijuana found on the ground near where he had been sitting on a bicycle. The appellate court reversed, finding the evidence established only proximity to the drug rather than constructive possession.
The court reversed the adjudication of delinquency because the state failed to prove constructive possession beyond a reasonable doubt. Mere proximity to contraband is insufficient to establish possession, and the circumstantial evidence did not exclude J.G.'s reasonable hypothesis of innocence that the marijuana belonged to the other bicycle rider.
[1] To prove constructive possession of contraband, the State must show the defendant had dominion and control over the contraband, was aware of its presence, and knew of its…
[2] Mere proximity to contraband is insufficient to establish dominion and control for purposes of constructive possession.
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Join FLexlaw to unlock all legal intelligence“mere proximity to contraband does not create probable cause of constructive possession”
Establishes the key legal principle that being near drugs is insufficient for a possession conviction
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Join FLexlaw to unlock all legal intelligenceOfficer Hoeflinger stopped a bicycle ridden by J.G. and another boy for lacking required lights. As J.G. jumped off the handlebars, Hoeflinger observe…
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WARNER, J.
J.G. appeals the trial court’s judgment of delinquency based upon his possession of marijuana. He claims the evidence showed only proximity to the drug and not possession. We agree and reverse.
At the adjudicatory hearing, Officer Francis Hoeflinger stated that he stopped a person for riding a bicycle without required lights one evening. While he wa.s interviewing that person, J.G. drove by riding on the handlebars of another bicycle while a boy pedaled. The bicycle had no lights, so they were stopped, as well. J.G. jumped off the front of the bicycle and Hoeflinger observed a white piece of paper fall to the ground underneath where J.G. had been sitting on the bike, about two or three feet from J.G. once he was off the bicycle. Hoeflinger admitted, however, that he was not exactly sure where the paper fell from. He picked up the paper, unfolded it, and found a green leafy substance which was later tested and determined to be marijuana. Both J.G. and his friend appeared to be nervous when the officer picked up the paper. Another officer at the scene saw Hoeflinger walk over and retrieve the paper from the ground, but did not see any individual drop the paper because he was not looking at the bicycle occupants at the time.
J.G. argues the evidence of possession of marijuana was insufficient to sustain the finding of guilt. In reviewing a motion for judgment of acquittal, a de novo standard of review applies. See Pagan v. State, 830 So. 2d-792, 803 (Fla.2002) (citing Tibbs v. State, 397 So. 2d 1120 (Fla.1981)).
Since J.G. was not in physical control of the marijuana when it was found, the state had to prove constructive possession. When pursuing a theory of constructive possession, the state must prove beyond a reasonable doubt that the accused had (1) dominion and control over the contraband, (2) knowledge that the contraband was within his presence, and (3) knowledge of the illicit nature of the contraband. See Lee v. State, 835 So. 2d 1177, 1178 (Fla. 4th DCA 2002) (citing Williams v. State, 573 So. 2d 124, 125 (Fla. 4th DCA 1991)). While the question of whether a defendant had dominion or control over contraband is generally a factual question for the jury, a judgment of acquittal is proper where there is no evidence from which dominion or control can be inferred. See Campbell v. State, 577 So. 2d 932, 935 (Fla.1991) (citations omitted).
J.G. points out that Hoeflinger saw the paper fall to the ground, but was not sure where the paper fell from, and the other officer did not see the individuals drop anything. The paper was found on the ground underneath where J.G. had been sitting, but mere proximity to contraband does not create probable cause' of constructive possession. See Walker v. State, 741 So. 2d 1144, 1146 (Fla. 4th DCA 1999) (citing Rennard v. State, 675 So. 2d 1006, 1008 (Fla. 2d DCA 1996)).
Instead, the state suggests that the circumstantial evidence is sufficient to imply possession by J.G. If the state’s evidence, is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence. See State v. Law, 559 So. 2d 187, 188 (Fla.1989) (citations omitted). J.G. contends the marijuana did not belong to him. Here, the state infers that the marijuana fell from J.G. because he had just vacated the handlebars of the bicycle, but it omits the possibility that it could have also been dropped or fallen from the hand of the boy who was steering the bicycle.
The state did not prove actual possession, and there was no evidence of control of the contraband. The circumstantial evidence did not exclude J.G.’s reasonable hypothesis of innocence that he was not in control of the drugs.
We therefore reverse the adjudication of delinquency and sentence.
KLEIN and TAYLOR, JJ., concur.
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Tarver v. State, 961 So. 2d 1094 (Fla. 2d DCA 2007)…had probable cause to believe that the person or persons closest to the contraband possessed it. [*1097] See Edwards v. State, 532 So. 2d 1311, 1314 (Fla. 1st DCA 1988); see also Isaac v. State, 730 So. 2d 757, 758 (Fla. 2d DCA 1999); J.G. v. State, 881 So. 2d 25, 26 (Fla. 4th DCA 2004). The trial court erred in ruling that Tarver was in constructive possession of the cannabis found at Mr. Williams’ feet, five or more feet away from where Tarver was standing. Conflicting evidence was presented concerning th…
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E.E. v. State, 980 So. 2d 623 (Fla. 4th DCA 2008)…, who was driving his family’s car with a passenger in the front seat, had knowledge of the presence of the small baggie of marijuana found under the driver’s seat of the car and or that he had dominion and control over the drugs. See J.G. v. State, 881 So. 2d 25, 26 (Fla. 4th DCA 2004); J.M. v. State, 839 So. 2d 832, 834 (Fla. 4th DCA 2003); Earle v. State, 745 So. 2d 1087 (Fla. 4th DCA 1999); In the Interest of E.H., 579 So. 2d 364 (Fla. 4th DCA 1991); McClain v. State, 559 So. 2d 425 (Fla. 4th DCA 1990);…
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M.D. v. State, 30 So. 3d 650 (Fla. 4th DCA 2010)…not necessarily indicate that he was there to smoke marijuana. We begin by noting that, because M.D. was not in actual possession of any of the marijuana, the State must prove that he had constructive possession of the marijuana. See J.G. v. State, 881 So. 2d 25, 26 (Fla. 4th DCA 2004). “In order to establish constructive possession, the State must prove that the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over the same.” Martoral v. State, 946 So. 2d…
Authorities Cited
- State v. Ronnie S. LAW, 559 So. 2d 187 (Fla. 1989)
- Delbert Lee Tibbs v. State, 397 So. 2d 1120 (Fla. 1981)
- Campbell v. State, 577 So. 2d 932 (Fla. 1991)
- LEE v. State, 835 So. 2d 1177 (Fla. 4th DCA 2002)
- Williams v. State, 573 So. 2d 124 (Fla. 4th DCA 1991)
- Rennard v. State, 675 So. 2d 1006 (Fla. 2d DCA 1996)
- Walker v. State, 741 So. 2d 1144 (Fla. 4th DCA 1999)