Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-4137 _____________________________ WILLIE ROBERTS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Alachua County. James M. Colaw, Judge. February 25, 2021 RAY, C.J. Willie Roberts appeals his convictions for witness tampering and possession of a controlled substance. He contends the trial court erred in denying his motion for judgment of acquittal on both charges and asserts a claim of ineffective assistance of counsel apparent on the face of the record. We find merit in his challenge to the sufficiency of the evidence on the possession charge and reverse his conviction and sentence on that count. We reject Roberts’ other claims without further discussion. Background A Gainesville police officer initiated a traffic stop after the officer determined that the vehicle’s tag was not registered to the vehicle. At the time of the stop, the driver immediately exited the vehicle and ran away. The officer stayed with the vehicle and its passenger and called for backup in apprehending the driver. In his search of the vehicle, the officer discovered several items, including cocaine and drug paraphernalia. Police later arrested Roberts after both the passenger and some of the items found in the vehicle identified him as the driver. At trial, the State presented evidence that Roberts fled the scene after being stopped by the officer. The officer who searched the vehicle described many of the objects seized and their location in the vehicle. But the officer did not testify about where in the vehicle he found the cocaine. Roberts moved for a judgment of acquittal, arguing that the State failed to prove possession. The motion was denied, and the jury returned a verdict of guilty. Analysis We review the denial of a motion for a judgment of acquittal de novo to determine if there is legally sufficient evidence to support a conviction. Taylor v. State, 13 So. 3d 77, 78 (Fla. 1st DCA 2009). In doing so, “we consider the evidence and all reasonable inferences in a light most favorable to the State as the non-moving party.” Id. In a constructive possession case, the State must establish that the defendant knew of the presence of the contraband and had the ability to maintain dominion and control over it. Smith v. State, 175 So. 3d 900, 903 (Fla. 1st DCA 2015). “Generally, if the place where contraband is located is jointly occupied, the State must establish the control element of possession through independent proof, such as fingerprints, an admission, or evidence of other incriminating statements or circumstances; a defendant’s mere proximity to the contraband is not sufficient.” Id. The State contends it met its burden here because the evidence showed that Roberts fled from the vehicle when law enforcement initiated the traffic stop, and the passenger identified Roberts as being the driver of the vehicle. The State also points to 2 other items found in the car that linked Roberts to the vehicle and portions of jail phone calls where he mentions clearing the “high rock.” Taken together, the State asserts that these circumstances reveal his consciousness of guilt. The State’s evidence may have been enough to raise a jury question as to Roberts’ knowledge of the cocaine in the vehicle. See Williams v. State, 110 So. 3d 59, 62 (Fla. 2d DCA 2013) (finding that defendant’s “extraordinary behavior” during a traffic stop, including being “anxious and nervous to an unheard of degree,” supported a reasonable inference that she knew there was contraband in the car). Even so, the evidence failed to show that Roberts could exercise dominion and control over the cocaine. This is not a case where Roberts was alone in the car. Cf. State v. Odom, 862 So. 2d 56, 59 (Fla. 2d DCA 2003) (“As the sole occupant and driver of the vehicle, Odom had exclusive possession of the vehicle creating an inference of his dominion and control over the contraband contained therein particularly since the contraband was found lodged between the driver’s seat and the console of the car.”). Nor is it a case where the contraband found in the jointly occupied vehicle was in plain view in an area where Roberts had exclusive control. Cf. Smith, 175 So. 3d at 903 (“[W]hen contraband is located in plain view, control over the item may be inferred from evidence that the defendant has exclusive control over the place where it was discovered.”). Rather, here, the State presented no evidence as to where in the vehicle the cocaine was found, who owned the vehicle, or how long Roberts had been inside the vehicle before the stop. Further, the State did not produce any independent proof tying the cocaine to Roberts as opposed to the passenger. See id.; Session v. State, 187 So. 3d 379, 380 (Fla. 5th DCA 2016); Martoral v. State, 946 So. 2d 1240, 1243 (Fla. 4th DCA 2007); Hargrove v. State, 928 So. 2d 1254, 1256 (Fla. 2d DCA 2006). Thus, it was error for the trial court to deny Roberts’ motion for judgment of acquittal on the possession charge, and we reverse his conviction and sentence on that count. AFFIRMED in part and REVERSED in part. 3 BILBREY and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee. 4