County Criminal Court: CRIMINAL LAW – Jury Trial – Evidence – Conviction for possession of marijuana upheld where in a jointly occupied vehicle there was independent proof that the defendant was aware of the marijuana and had an ability to control it. Judgment and sentence affirmed. Green v. State, No. CRC 03-37 APANO, (Fla. 6th Cir.App.Ct. Jan. 20, 2005).









Appeal No. CRC 03-37 APANO









Opinion filed _______________.


Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Michael Andrews


Stacey Schroeder, Esq.

Assistant Public Defender


Christie Biggs, Esq.

Assistant State Attorney




            THIS MATTER is before the Court on the defendant’s appeal of a judgment and sentence entered by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the judgment and sentence.

            The defendant was convicted following a jury trial of possession of marijuana. The defendant contends that the trial court erred in not granting his motion for a Judgment of Acquittal (“JOA”).

            At approximately 9:45 in the evening, the police were responding to an alarm at a business when they noticed the suspect car traveling slowly at idle speed down the alley behind the business. The police elected to make an investigatory stop. The appellant does not challenge the stop in this appeal. One of the officers saw two occupants in the suspect car. While approaching the car the officer noticed the passenger, the defendant, bend over with his right hand towards the floorboard. The officer ordered the defendant to raise his hands. He had to ask the defendant three times before the defendant raised his hands. Another officer approached the passenger side of the car and found four zip log baggies. Two of the baggies were located on the passenger side floorboard where the passenger’s right foot would have been, and the other two were between the passenger seat and the passenger door. The baggies were determined to contain marijuana, and the defendant was charged with possession of marijuana. The defendant contends that his motion for JOA should have been granted because there was insufficient evidence to convict him of constructive possession. He argues that mere proximity to the contraband is insufficient because there was another individual in the car at the time --- the driver.    

The standard of review in this matter is de novo. Tibbs v. State, 397 So.2d 1120 (Fla. 1981). In moving for a JOA, the defendant admits not only the facts in evidence, but also every reasonable conclusion favorable to the State that the jury might infer from the evidence. State v. Odom, 862 So.2d 56 (Fla. 2d DCA 2003). The court must determine whether or not there was evidence from which the jury could infer guilt to the exclusion of all other inferences.

           A defendant will be found guilty of constructively possessing illegal drugs if the jury could find beyond a reasonable doubt: (1) the defendant’s knowledge that the contraband was within his or her presence; (2) the defendant’s dominion and control over the contraband.  See State v. Odom. In the case of a jointly occupied vehicle, knowledge and ability to control the contraband may not be inferred by mere proximity to the drugs, but must be established by independent proof. E.A.M. v. State, 684 So.2d 283 (Fla. 2d DCA 1996).

            In the case at bar, there was independent proof of these elements. First, there was evidence to show that the defendant behaved suspiciously when he became aware of the presence of the police. The testimony was that the defendant was reaching down with his right hand towards the floorboard of the car, and only stopped and showed his hands after the third instruction to do so. There was also evidence that some of the contraband was between the passenger door and the passenger seat. The jury could easily have inferred that while the defendant was reaching down he was attempting to hide the contraband from the police, succeeded in placing some of it away from the floorboard, and only stopped trying to hide the rest of the contraband when he had run out of time.  If the jury had taken this view of the facts, it would support the conclusion that the defendant knew the baggies were there and had dominion and control over them.

Second, this is not a situation where the contraband was found in a location in the vehicle that was easily accessible to everyone in the front of the vehicle, such as the console or ashtray, or in an area that was unseen by the occupants, such as the trunk or glove compartment. Instead, the contraband was found right in the area of the front passenger seat in plain view. The fact that the police used a flashlight at night while locating the packages does not negate the fact that some of the packages were right on the floorboard and in a spot where the passenger’s feet would have rested. See Arrendendo-Hernandez, 574 F.2d 1312 (5th Cir. 1978). The jury could have inferred that because the contraband was in plain view in the exact spot the defendant was seated just moments before it was found, the defendant knew of the existence of the drugs and had dominion and control over them.

In summary, the defendant’s suspicious and furtive behavior, and the fact that the contraband was in plain view in the exact spot where the defendant had just left, provides sufficient independent proof, apart from the proximity of the defendant to the contraband, to support the denial of the defendant’s JOA. The judgment and sentence are affirmed.

            IT IS THEREFORE ORDERED that the judgment and sentence are affirmed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of January, 2005.



                                                                                                James R. Case

                                                                                                Circuit Judge





                                                                                                Nancy Moate Ley

                                                                                                Circuit Judge





                                                                                                John A. Schaefer

                                                                                                Circuit Judge

cc:   State Attorney 

       Public Defender

       Judge Andrews