Constructive Possession

GIZAW v. STATE, 36 Fla. L. Weekly D2173b (Fla. 2nd DCA, Oct 5, 2011) – In order to prove the felony charges in this case, the State was required to establish that Gizaw knowingly possessed the cannabis. See §§ 893.135(1)(a)(1), 893.1351(2), 893.147(1)(a), Fla. Stat. (2008). Because Gizaw was not in actual possession of the cannabis, the State was required to prove her constructive possession of the suitcase containing the cannabis. See Culver v. State, 990 So. 2d 1206, 1208 (Fla. 2d DCA 2008). The State thus had to prove that Gizaw knew of the presence of the suitcase with the cannabis inside and was able to exercise dominion and control over it. Id.

If the area in which the drugs were found had been in Gizaw’s exclusive possession, then knowledge and control could have been inferred. See Earle v. State, 745 So. 2d 1087, 1089 (Fla. 4th DCA 1999). However, Gizaw and Nelson were traveling together in her car, and Nelson had access to the trunk during the visit to Miami. As a result, the State had to establish Gizaw’s knowledge of the cannabis and dominion and control over it by independent proof. See S.B. v. State, 657 So. 2d 1252, 1253 (Fla. 2d DCA 1995) (concluding that knowledge and dominion and control could not be inferred because the contraband was in a car trunk that was accessible to all of the occupants). This independent proof must establish more than a mere proximity to the drugs. Culver, 990 So. 2d at 1209. In cases relying on circumstantial evidence, such as this one, the evidence must also exclude any reasonable hypothesis of innocence propounded by the defense. See Pagan, 830 So. 2d at 803. The evidence must “lead ‘to a reasonable and moral certainty that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt. They must be inconsistent with innocence.’ ” Lindsey v. State, 14 So. 3d 211, 215 (Fla. 2009) (quoting Frank v. State, 163 So. 223, 223 (Fla. 1935)).

In summary, the State failed to present any evidence linking Gizaw to the cannabis other than her mere proximity to it. The State’s evidence failed to establish that Gizaw had knowledge of the presence of the cannabis or dominion and control over the suitcase containing the cannabis. Accordingly, the trial court erred in denying Gizaw’s motion for judgment of acquittal, and we reverse and remand with directions for the court to discharge Gizaw.

Eric J Dirga, PA

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