Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-5083 _____________________________ BRIAN BRADWELL, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Jennie Kinsey, Judge. June 26, 2020 LEWIS, J. Brian Bradwell appeals his convictions and sentences for trafficking in illegal drugs (Count 1), possession of heroin (Count 2), possession of methamphetamine (Count 3), driving while license revoked pursuant to the habitual offender statute (Count 6), and possession of drug paraphernalia (Count 7), * raising two issues. He argues that the trial court erred by denying his motion for judgment of acquittal because the State failed to prove the * Bradwell entered an open plea of no contest on Count 6 and proceeded to trial on the remaining offenses. The State nolle prossed Counts 4 and 5, wherein he was charged with possession of controlled substances. elements of constructive possession. For the reasons that follow, we disagree. We reject on the merits and without further comment Bradwell’s second argument regarding the legality of his sentences. We, therefore, affirm Bradwell’s convictions and sentences. BACKGROUND On April 3, 2018, deputies with the Escambia County Sheriff’s Office conducted a traffic stop on Bradwell after receiving information that he was driving with a suspended driver’s license. Bradwell was the driver of the vehicle and had a passenger, Mr. Malinosky, in the front seat. Bradwell was also the owner of the vehicle. A canine alerted by the rear passenger door to the presence of narcotics. Bradwell and his passenger had been placed into patrol cars for their safety. During the ensuing search of Bradwell’s vehicle, the deputies found on the folded down back seat a pile of clothes, and underneath those clothes, there was a safe. One of the deputies described the safe as “not just like a little personal safe. It was a decent-sized safe,” about three feet in size. The safe was locked, and after being unable to obtain the combination code from Bradwell or the passenger, the deputies forced entry into it. Inside the safe, there was a box that contained several different kinds of suspected controlled substances, including prescription pills, heroin, and methamphetamine. The safe also contained spoons and syringes commonly used for heroin; small clear plastic baggies, some of which had methamphetamine residue in them; and various plastic containers that held the baggies of narcotics. In the safe, next to the box, there were also six receipts from Hope Counseling Services for substance abuse counseling with Bradwell’s name on them as the client, an insurance bill addressed to and paid by Bradwell, and a scanned copy of a driver’s license, social security card, and birth certificate bearing the name Weaver. Weaver was not in the vehicle or near the safe. The substances in the safe were tested and were determined to be over four grams of hydromorphone tablets, methamphetamine, and heroin. At trial, Bradwell moved for a judgment of acquittal “on the issue of constructive possession.” The trial court denied the 2 motion, and the jury found him guilty as charged. Bradwell was adjudicated guilty and sentenced on Count 1 to twenty years of imprisonment with a three-year mandatory minimum term, on Counts 2 and 3 to five years of imprisonment, on Count 6 to two years of imprisonment, and on Count 7 to one year in jail, all to run concurrently with Count 1. This appeal followed. ANALYSIS We review the trial court’s denial of a motion for judgment of acquittal de novo to determine whether the evidence is legally sufficient to sustain a conviction. Kemp v. State, 166 So. 3d 213, 216 (Fla. 1st DCA 2015). In doing so, we must consider the evidence and all reasonable inferences therefrom in a light most favorable to the State. Id. Bradwell contends that this is a wholly circumstantial evidence case, requiring the application of a special standard of review whereby a conviction cannot be sustained unless there is competent, substantial evidence inconsistent with any reasonable hypothesis of innocence. See McWatters v. State, 36 So. 3d 613, 631 (Fla. 2010) (explaining the application of a special standard of review when the State’s evidence is wholly circumstantial as opposed to the general standard of review when the State presents some direct evidence). However, the circumstantial evidence standard does not apply for two reasons. First, the Florida Supreme Court recently abandoned the circumstantial evidence standard of review and held that the standard to be applied in all cases when analyzing the sufficiency of the evidence is whether the State presented competent, substantial evidence to support the verdict. See Bush v. State, 45 Fla. L. Weekly S145 (Fla. May 14, 2020) (holding that “in all cases where the sufficiency of the evidence is analyzed,” “an appellate court must view[] the evidence in the light most favorable to the State” and determine whether “a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt” (internal citation omitted)); see also Jones v. State, 1D18–4885, 2020 WL 3042033, at *2 (Fla. 1st DCA June 8, 2020) (applying the direct evidence standard in part because the supreme court has discontinued the circumstantial evidence standard of review). 3 Second, even if the circumstantial evidence standard had not been abandoned, it would not apply here because the argument was not raised below. We have explained that there are two legally distinct issues that can be raised in a motion for judgment of acquittal: (1) whether the State presented legally sufficient evidence to establish each element of the charged crime, and (2) whether, in a wholly circumstantial evidence case, the State’s evidence is inconsistent with any reasonable hypothesis of innocence. Newsome v. State, 199 So. 3d 510, 512 (Fla. 1st DCA 2016). To preserve either issue, a defendant moving for a judgment of acquittal must identify the element(s) of a crime for which he contends the evidence is lacking and, if the evidence is purely circumstantial, must outline his theory of defense and explain why it is not inconsistent with the circumstantial evidence. Id. (concluding in part that the appellant failed to preserve his argument that it was a wholly circumstantial evidence case because he did not argue that it was a wholly circumstantial evidence case and he did not outline a theory of defense and argue that the circumstantial evidence was consistent with that theory); see also Charles v. State, 253 So. 3d 1230, 1232–33 (Fla. 1st DCA 2018) (finding that the appellant failed to preserve his argument that the evidence was wholly circumstantial where he raised it for the first time on appeal; thus, the special circumstantial evidence standard of review was not triggered). As such, we apply the general standard of review and determine whether competent, substantial evidence supports Bradwell’s convictions. Where, as here, the convictions are based on a theory of constructive possession, the State is required to prove that the defendant knew of the presence of the contraband and had the ability to maintain dominion and control over it. Nolley v. State, 237 So. 3d 469, 474 (Fla. 1st DCA 2018). Additionally, when, as here, the premises where the contraband is found are in joint possession, the State must establish the knowledge and ability to maintain control elements by independent proof. Id. (noting that “[t]he independent proof may be evidence establishing that the defendant had actual knowledge of the presence of the contraband in the place where it was found or circumstantial evidence from which a jury might properly infer that the defendant had knowledge of the presence of the contraband”). 4 The Florida Supreme Court’s decision in Knight v. State, 186 So. 3d 1005 (Fla. 2016), is instructive. There, the police conducted a traffic stop of a vehicle that was driven by the appellant, but was owned by his friend, Miller. Id. at 1007. Miller was riding in the front passenger seat and another friend, Harris, was sitting in the back seat. Id. When the car parked at a convenience store, the officer ordered the appellant out—while leaving the passengers in the car—and, minutes later, issued him a citation. Id. After being released, the appellant walked into the store, at which time another officer ran his dog around the car and was alerted to the passenger side door. Id. Upon exiting the store, the appellant was re-detained. Id. The police found a small bag of cannabis in a suitcase that was sitting on the back seat of the car and had a tag that identified the appellant as the owner. Id. After the trial court denied the appellant’s motion for judgment of acquittal, Miller testified that the cannabis did not belong to him, he did not see the appellant with the cannabis or hear him discuss it, and Harris was left in the back seat next to the suitcase after the appellant was removed from the car. Id. at 1008. The appellant also testified that Harris was seated in the back seat until the search occurred, the cannabis was not his, and the suitcase was not his and the tag did not identify him as the owner. Id. The Florida Supreme Court, applying the direct evidence standard of review, upheld the appellant’s conviction for possession of cannabis and reasoned as follows: The State demonstrated Knight’s dominion and control over the cannabis by introducing evidence that Knight owned the suitcase containing it. Although Knight did not testify that he owned the luggage, the jury could have instead accepted Deputy Murphy’s testimony that the suitcase contained a luggage tag identifying Knight as its owner. As to the knowledge element, the jury could have also rejected Knight’s testimony about his friend Chad Harris having the opportunity to place the drugs into the suitcase. Knight’s case may present a close call as to the elements of constructive possession being established, but this Court is not at liberty to reweigh the evidence. That is the jury’s role, and here, the State has produced sufficient evidence, when viewed in the light 5 most favorable to the State, that a rational jury could find these two elements established beyond a reasonable doubt. Id. at 1012. Similarly, here, the State presented independent proof of Bradwell’s knowledge of and ability to maintain control over the contraband. The State met its burden with regard to the control element because the contraband was in a locked safe inside a car that was owned and driven by Bradwell and was among papers belonging to him. While copies of documents bearing Weaver’s name were also in the safe, Weaver was not in the car or near the safe. Nothing in the safe was linked to the passenger, Malinosky. Furthermore, the jury could properly infer Bradwell’s knowledge of the presence of the contraband in light of all the evidence presented. The contraband was found in a large, locked safe on the folded down back seat of the car Bradwell owned and was driving. In addition to the drugs and drug paraphernalia, the safe contained several pieces of documents bearing Bradwell’s name, including payment receipts for substance abuse counseling he had undergone. As in Knight, here the direct evidence standard applies. The evidence of constructive possession is even stronger in this case than it was in Knight in several respects. Unlike Knight, Bradwell was both the owner and the driver of the car where the contraband was located. Unlike the contraband in Knight, the contraband here was in a container that was outside of the reach of the passenger and was locked. Although the safe did not contain a label identifying Bradwell as its owner, it contained papers belonging to him and, as we noted, was in a car that was both owned and controlled by him. Our decision in Jones v. State, 282 So. 3d 882 (Fla. 1st DCA 2018), a case upon which Bradwell relies, is distinguishable. Jones was the driver and Lyles was the passenger of a car that was pulled over for a traffic violation. Id. at 883. Jones was asked to exit the vehicle, and he gave the police a false name and said the car had been rented by his sister. Id. Lyles did not exit the vehicle until the K9 unit arrived about nine minutes later. Id. The canine alerted to the rental car and the troopers found Jones’s identification in the driver’s door pocket, a paper CD case 6 containing marijuana in the driver’s seat, and a baggie of cocaine and a box of Swisher cigars in the closed center console. Id. Lyles had a marijuana grinder in her purse. Id. At trial, Jones admitted to all charges except possession of cocaine. Id. Following the denial of his motion for judgment of acquittal, Jones was convicted as charged. Id. We held that the trial court erred by denying Jones’s motion for judgment of acquittal because the State failed to present independent proof that he had knowledge of and control over the cocaine in the closed center console of the jointly occupied vehicle. Id. at 884. We rejected the State’s reliance on Jones’s requests to smoke a Black and Mild, noting there was no evidence that a Black and Mild cigarette is the same as a Swisher cigar. Id. We added: And, while it is true that “[a]n inference of knowledge and dominion and control may arise where the contraband located in a jointly occupied area is found in or about other personal property which is shown to be owned or controlled by the defendant[,]” such an inference cannot be made in this case because the State failed to establish that the “Swisher cigars” found in the center console belonged to Jones. Id. at 884–85 (citation omitted). Even assuming the Swisher cigars belonged to Jones, we found that the evidence would not be sufficient to establish Jones’s knowledge of the cocaine or to rebut his hypothesis of innocence. Id. at 885 (applying the circumstantial evidence standard of review). The State did not establish a time frame with regard to when the cocaine came to reside in the center console and there was no indication of Jones’s present dominion over the cocaine. Id. “The car was a rental vehicle, and the State never presented evidence of the timeline of when Jones gained access to the vehicle and for how long the vehicle was in Jones’s possession before he was stopped.” Id. “Moreover, while the proximity of the ‘Swisher cigars’ to the cocaine might be consistent with Jones having knowledge and control over the cocaine, those facts are equally susceptible to the reasonable hypothesis argued at trial that it was Lyles who placed the cocaine in the center console while Jones and the trooper were talking outside.” Id. Having concluded that the State failed to 7 rebut Jones’s reasonable hypothesis of innocence or provide independent proof of his knowledge of and control over the cocaine, we reversed his conviction. Id. at 886. Given such, Bradwell’s reliance on Jones is misplaced. Unlike Jones, Bradwell was the owner of the car he was driving. Jones’s passenger remained in the car alone for at least nine minutes, whereas here the record does not suggest that Bradwell’s passenger stayed in the car by himself. Regardless, in Jones, the contraband was found in the center console that was readily accessible to the passenger, while here the contraband was found in a locked safe underneath a pile of clothing on the folded down back seat. As such, unlike Jones’s passenger, and even unlike Knight’s back seat passenger, both of whom remained in the car after the defendant exited and could have placed the contraband where it was found, here there is no record support for a finding that Bradwell’s passenger could have hidden the contraband in the safe after the police initiated a traffic stop. Nor was there any evidence suggesting that the safe or its contents belonged to Bradwell’s passenger. Additionally, unlike in Jones, here we are applying the direct evidence standard. Moreover, as we reiterated in Jones, an inference of knowledge and control may arise where the contraband in a jointly occupied area is found in or about other personal property that is shown to be owned or controlled by the defendant. As discussed above, in addition to the undisputed evidence that Bradwell owned and controlled the car, the State presented evidence that the safe itself belonged to him or, at the very least, that he had control over it. Therefore, the trial court did not err by denying Bradwell’s motion for judgment of acquittal. CONCLUSION For the foregoing reasons, we affirm Bradwell’s convictions and sentences. AFFIRMED. WINOKUR and M.K. THOMAS, JJ., concur. 8 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Keith W. Upson of The Upson Law Firm, Naples, for Appellant. Ashley Moody, Attorney General, and Trisha Meggs Pate, Bureau Chief - Criminal Appeals, Tallahassee, for Appellee. 9