Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT T.C.C., ) ) Appellant, ) ) v. ) Case No. 2D18-4664 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed March 27, 2020. Appeal from the Circuit Court for Hillsborough County; Michael S. Williams, Judge. Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Laurie Marie Benoit- Knox, Assistant Attorney General, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. On this appeal from his adjudication of delinquency for carrying a concealed firearm without a license, see § 790.01(2), Fla. Stat. (2018), and for possessing a firearm as a minor, see § 790.22(3), T.C.C. argues that the trial court erred in admitting his confession that he had possessed the firearm because the State had failed to prove the corpus delicti of either delinquent act. We agree, and because without the confession, the evidence was insufficient on both counts, we reverse the adjudications and remand for entry of judgments of dismissal. In August 2018, a group of Tampa Police Department officers were eating dinner at a restaurant at University Mall when T.C.C. approached and said that three males had just robbed, chased, and followed him into the restaurant. Corporal William McKendree took T.C.C. outside to talk with him while other officers detained three boys who had come into the restaurant after T.C.C. The officers found a bag of ammunition on the boys, who claimed that they had been the victims. Because the restaurant was noisy, the officers also took the three boys outside. When T.C.C. saw them, he broke into a run through the mall parking lot, with Corporal McKendree in pursuit. T.C.C. rounded a corner, and Corporal McKendree lost sight of him for "about three seconds." T.C.C. continued to run, and Corporal McKendree continued to chase him until he again lost sight of him around another corner. When Corporal McKendree caught up with T.C.C., he found T.C.C. stuck in some bushes that T.C.C. had apparently tried to jump over. After freeing T.C.C. from the bushes and handing him off to another officer, Corporal McKendree searched the bushes and found a live .38-caliber round in them. Another officer searched some bushes at the corner where Corporal McKendree first lost sight of T.C.C. and recovered a .38-caliber revolver. These bushes were fifty to one hundred yards from where T.C.C. was apprehended. The mall was closed at that -2- time, and there was no civilian traffic in that area. In a postarrest interview, T.C.C. admitted that he had possessed the revolver. At trial, T.C.C. objected to the introduction of his confession, arguing that the State had failed to establish the corpus delicti of either delinquent act. Wrestling with our decision in A.P. v. State, 250 So. 3d 799 (Fla. 2d DCA 2018), the trial court ultimately overruled the objection. We review for an abuse of discretion the court's determination that the evidence sufficiently established corpus delicti to admit T.C.C.'s confession. See N.G.S. v. State, 272 So. 3d 830, 832 (Fla. 2d DCA 2019). The requirement of proof of corpus delicti arises out of "a fundamental principle of law that no person be adjudged guilty of a crime until the state has shown that a crime has been committed." State v. Allen, 335 So. 2d 823, 825 (Fla. 1976). Consistent with that principle, "A person's confession to a crime is not sufficient evidence of a criminal act where no independent direct or circumstantial evidence exists to substantiate the occurrence of a crime." Id. Generally: The corpus delicti rule does not require that the State prove the identity of the person who committed the crime, except in those uncommon circumstances where proof of identity is necessary to show that a crime was committed at all. Nor does it require that the body of the crime be proved beyond a reasonable doubt. Rather, it requires that the State produce "substantial evidence," which need not be "uncontradicted or overwhelming," to prove that a crime has in fact happened. N.G.S., 272 So. 3d at 832-33 (citations omitted). This case presents one of those "uncommon circumstances where proof of identity is necessary to show that a crime was committed at all" because it is legal for an adult to possess a firearm (except under specific circumstances) and for a properly -3- licensed person to carry a concealed firearm. See N.G.S., 272 So. 3d at 832; cf. K.T.B. v. State, 284 So. 3d 1171, 1174-75 (Fla. 2d DCA 2019) (explaining that proving the corpus delicti of possessing a controlled substance in violation of section 893.13(6)(a), Florida Statutes (2018), did not require proof of identity because "[i]t was illegal for anyone to possess the baggie of cocaine that was found on the ground near where K.T.B. was taken into custody").1 To establish corpus delicti, therefore, the evidence, independent of T.C.C.'s confession, had to establish that someone who was a minor and who did not have a concealed-firearm permit—that is, T.C.C.—had possessed a firearm and had carried a concealed firearm. Both charges turn on whether T.C.C. had possessed the firearm that the officers found after apprehending him. As noted above, this does not mean that the evidence had to establish his possession of the firearm beyond a reasonable doubt before his confession could be admitted. See Allen, 335 So. 2d at 825. Rather: "The state has a burden to bring forth 'substantial evidence' tending to show the commission of the charged crime. This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime." Id. (footnotes omitted). "Possession of a firearm may be either actual or constructive," N.G.S., 272 So. 3d at 835, but both require that the defendant have control over the firearm. See G.G. v. State, 84 So. 3d 1162, 1164 (Fla. 2d DCA 2012) ("Under either [i.e., actual 1The trial court's confusion over A.P. appears to spring from not recognizing that that case also presented one of those "uncommon circumstances." See A.P., 250 So. 3d at 802 ("[I]n this case, absent proof that A.P. [(who was both a minor and a felon)] possessed the gun, the evidence offered by the State does not establish that any crime occurred." (emphasis added)). -4- or constructive] theory of possession, . . . the State must prove that the accused had control of the contraband." (citing McCoy v. State, 840 So. 2d 455, 456 (Fla. 4th DCA 2003))). To prove corpus delicti, therefore, substantial evidence independent of T.C.C.'s confession had to establish T.C.C.'s control of the firearm found in the bushes. There was no such evidence. Instead, the evidence established that officers had found a .38-caliber bullet in the bushes in which T.C.C. had been apprehended and a .38-caliber firearm in some bushes fifty to one hundred yards away from there. While running from the officers, T.C.C. had briefly passed through the area where the firearm was found, but that area was accessible to the public and no one testified regarding the condition of the firearm or the ammunition; consequently, there was no evidence suggesting how long they may have been in those locations before being found. Moreover, none of the officers who had seen or spoken with T.C.C. before he fled testified that they had had reason to believe that he had possessed the firearm; nor did the boys who identified T.C.C. as their antagonist say anything about a firearm. There was no evidence that T.C.C.'s fingerprints had been found on the firearm, and we are unable to infer consciousness of guilt solely from T.C.C.'s flight upon seeing the other boys outside the restaurant. See Powell v. State, 908 So. 2d 1185, 1187 (Fla. 2d DCA 2005) ("Evidence of flight is relevant to infer consciousness of guilt where there is a sufficient nexus between flight and the crime with which a defendant is charged." (emphasis added) (citing Escobar v. State, 699 So. 2d 988, 995 (Fla. 1997))). Thus, although the evidence established T.C.C.'s proximity to the firearm found in the bushes, mere proximity is insufficient to establish control and no evidence apart from T.C.C.'s confession supplied the missing piece. See G.G., 84 So. 3d at 1164 -5- ("[U]nder either theory [of possession] the requisite control is not established by an accused's mere proximity to the contraband." (citing Sundin v. State, 27 So. 3d 675, 676-77 (Fla. 2d DCA 2009))). As we stated in A.P., 250 So. 3d at 802, "this will not do." Although the trial court distinguished A.P. on the ground that the firearm in that case was found in a jointly occupied vehicle while the firearm in this case was found in an area where only T.C.C. was present, we cannot say that the absence of anyone else in that public area at that moment evidenced T.C.C.'s control of the firearm. The other evidence, therefore, failed to establish the corpus delicti of the charged offenses so as to render T.C.C.'s confession admissible. Accordingly, we reverse the adjudications of delinquency and remand for discharge on both counts. Reversed and remanded with instructions. NORTHCUTT and BLACK, JJ., Concur. -6-