Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT X.S., Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-2712 February 8, 2023 Appeal from the Circuit Court for Hillsborough County; Lawrence M. Lefler, Judge. Howard L. Dimmig, II, Public Defender, and Caroline Joan S. Picart, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee. LaROSE, Judge. X.S. appeals the disposition order adjudicating him a delinquent minor in possession of a firearm. See § 790.22(3), Fla. Stat. (2020). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A), 9.145(b)(1). Because the State failed to establish the corpus delicti of the offense, the trial court erred in denying X.S.'s motion for judgment of dismissal. Accordingly, we reverse.1 Background Late one evening, Tampa police officer Martin Pollak went to a hotel "in reference to a warrant investigation." X.S. was at the scene. He was arrested on an outstanding warrant. Thereafter, according to Officer Pollak, "[law enforcement] continued the investigation." While standing near a Toyota Camry, Officer Pollak saw a black pistol box under the rear passenger seat. He entered the car, opened the box, and discovered a Glock 23 .40 caliber semiautomatic pistol. Officer Toni Clark testified that she arrived at the scene "to pick up [X.S.]." She knew him to be sixteen years old. While Officer Clark detained X.S., she heard him tell his mother, who was standing nearby, "[t]hat the police found his gun. He also said that the gun was legal this time as it was not stolen." X.S. objected on corpus delicti grounds to Officer Clark's testimony. The trial court overruled the objection. At the close of the State's case, X.S. moved for a judgment of dismissal, again arguing that, absent his statements to his mother, the State failed to establish the corpus delicti of the crime. More specifically, X.S. argued that the State failed to present prima facie evidence that he possessed the gun. The trial court denied the motion and found X.S. delinquent. Analysis We review the denial of a motion for judgment of dismissal de novo. E.A.B. v. State, 851 So. 2d 308, 310 (Fla. 2d DCA 2003). "A conclusion that an act of delinquency was committed is to be sustained where, 1 Because our resolution of this issue is dispositive, we do not address X.S.'s other arguments raised in this appeal. 2 viewing the evidence in the light most favorable to the State, a rational trier of fact could find that the elements of the delinquent act have been established beyond a reasonable doubt." K.H. v. State, 265 So. 3d 684, 686-87 (Fla. 2d DCA 2019) (citing E.A.B., 851 So. 2d at 310). When the State fails to establish a prima facie case, dismissal is required. See Fla. R. Juv. P. 8.110(f). Also, "[w]e review for an abuse of discretion the [trial] court's determination that the evidence sufficiently established corpus delicti to admit [the juvenile]'s confession." T.C.C. v. State, 292 So. 3d 549, 551 (Fla. 2d DCA 2020); N.G.S. v. State, 272 So. 3d 830, 832 (Fla. 2d DCA 2019). As a fundamental legal principle, no person can be found guilty of a crime until the State establishes that a crime occurred. State v. Allen, 335 So. 2d 823, 825 (Fla. 1976). The corpus delicti2 rule ensures that criminal responsibility is properly assigned. See id. ("The judicial quest for truth requires that no person be convicted out of derangement, mistake or official fabrication."); S.H. v. State, 264 So. 3d 1042, 1045-46 (Fla. 3d DCA 2019) ("The corpus delicti rule is not one of constitutional magnitude, nor is it statutorily mandated. It is a common law, judicially created, rule of evidence, the purpose of which is to ensure that a person will not be convicted based solely on his own false confession to a crime that never occurred." (quoting Gonzales v. State, No. AP-75540, 2009 WL 1684699, at *7 (Tex. Crim. App. June 17, 2009))). Florida courts adhere[] to the traditional rule of corpus delicti. See, e.g., J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998); Burks v. State, 613 So. 2d 441, 443 (Fla. 1993); see also State v. Carwise, 2 "This Latin phrase means literally 'the body of the crime.' It is regularly used in appellate decisions to mean the legal elements necessary to show that a crime was committed." Allen, 335 So. 2d at 824 n.2. 3 846 So. 2d 1145, 1146 (Fla. 2003) (Cantero, J., dissenting). The rule provides that before an admission may be allowed into evidence, the State has the burden of offering direct or circumstantial evidence independent of the admission that establishes the corpus delicti of the crime charged. Allen[, 335 So. 2d at 825] ("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."). The State must "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. (footnote omitted) (quoting Tucker v. State, 59 So. 941, 941 (Fla. 1912)). A.P. v. State, 250 So. 3d 799, 801 (Fla. 2d DCA 2018). So then, "[w]hile the corpus delicti may not be established solely by a confession, 'confessions and admissions may be considered in connection with other evidence to establish it.' " Baxter v. State, 586 So. 2d 1196, 1200 (Fla. 1991) (quoting Hodges v. State, 176 So. 2d 91, 92 (Fla. 1965)). "It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify [the fact-finder's] inference of their truth." Id. (quoting Opper v. United States, 384 U.S. 84, 93 (1954)). The State petitioned to have X.S. declared delinquent for violating section 790.22(3), which prohibits a minor from possessing a firearm, subject to several enumerated exceptions not applicable here. Id. ("A minor under 18 years of age may not possess a firearm, other than an unloaded firearm at his or her home . . . ."). To establish the corpus delicti for this offense, the State had to adduce evidence, apart from X.S.'s statements, that he possessed the firearm recovered by Officer Pollak. Cf. M.P. v. State, 682 So. 2d 79, 82 (Fla. 1996) (observing that possession is an element of a possession of a firearm by a minor charge). 4 "All possession crimes may be either actual or constructive." Sundin v. State, 27 So. 3d 675, 676 (Fla. 2d DCA 2009) (citing Chicone v. State, 684 So. 2d 736, 738 n.2 (Fla. 1996), superseded by statute on other grounds, ch. 2002-258, § 1, Laws of Fla.); N.G.S., 272 So. 3d at 835 ("Possession of a firearm may be either actual or constructive."). We see no evidence that X.S. actually possessed the firearm. Thus, the State had to establish that X.S. constructively possessed the firearm. "[T]o prove constructive possession of a firearm the State must produce evidence establishing that 'the defendant had knowledge of the presence of the gun and the ability to exercise control over it.' " A.P., 250 So. 2d at 802 (quoting Creamer v. State, 605 So. 2d 541, 542 (Fla. 1st DCA 1992)). In A.P., 250 So. 2d at 802, "[t]he evidence . . . showed that A.P. and two passengers were together in the car, and A.P. was driving. The gun was hidden from sight under the floor mat of the front passenger seat." However, "proximity to contraband in a jointly occupied car is not sufficient to sustain a conviction based on constructive possession." Id. We reversed the order adjudicating A.P. delinquent, observing that "the only independent proof remaining to support any of the inferences necessary to establish constructive possession [wa]s A.P.'s admission." Id. Here, the State's evidence is no more compelling. For one thing, we know little about the car in which Officer Pollak found the firearm. The State presented no evidence that X.S. owned the car, or, at least, had control over it. In fact, we see no evidence that X.S. was ever in the car. Apparently, law enforcement officers arrested X.S. near the car. But this fact cannot establish the corpus delicti. See N.G.S., 272 So. 3d at 835 ("[T]he State's only proof of constructive possession independent of 5 proximity is N.G.S.'s confession, which cannot be used to establish the corpus delicti of the crime."). Quite simply, nothing links X.S. to the car. See Harrison v. State, 483 So. 2d 757, 758 (Fla. 2d DCA 1986) (holding that the corpus delicti doctrine prohibited the appellant's conviction for possession of a firearm where there was no proof of actual or constructive possession of the firearm apart from the appellant's confession). The State failed to show that any crime occurred. Cf. State v. Walton, 42 So. 3d 902, 906-07 (Fla. 2d DCA 2010) (explaining that in a DUI case the defendant's identity as the driver may become a necessary part of the corpus delicti where, absent proof that the defendant was the driver, the evidence does not establish a crime occurred). The State urges us to apply the corroboration rule. See United States v. Shunk, 881 F.2d 917, 919 (10th Cir. 1989) ("The rule requires 'the government to introduce substantial evidence which would tend to establish the trustworthiness of the statement. . . . It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth.' " (quoting Opper, 348 U.S. at 93)). We have previously avoided this route. A.P., 250 So. 3d at 802-03. Moreover, "we are not free to ignore the fact that the Florida Supreme Court has rejected th[is] option on more than one occasion." Id. The State argues further that X.S.'s statements are admissible as they "arose out of the res gestae, which are the 'circumstances, facts[,] and declarations which grow out of the main fact and serve to illustrate its character, and which are spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation or fabrication.' " State v. Adams, 683 So. 2d 517, 518-519 (Fla. 2d DCA 1996). "These [anachronistic common law] components are [now] embodied in section 90.80[3](1)-(3), Florida Statutes (2007)," Florida's spontaneous statement 6 and excited utterance hearsay exceptions. See Deparvine v. State, 995 So. 2d 351, 367 n.14 (Fla. 2008); see also State v. McDonald, 785 So. 2d 640, 647 (Fla. 2d DCA 2001) ("[T]he common law of crime has been supplanted in large part by statutory law . . . ."). Whether X.S.'s statements to his mother are spontaneous statements, excited utterances, statements against interest, or some other hearsay exception, they remain the only evidence of constructive firearm possession.3 See §§ 90.803(1), (2), .804(2)(c), Fla. Stat. (2020); see also Burks v. State, 613 So. 2d 441, 443-44 (Fla. 1993) (rejecting the distinction between admissions and confessions and holding that before an accused's statements is admissible all of the elements of the crime must first be established, irrespective of the accused's statement). The State must establish the corpus delicti of a crime, independent of X.S.'s statements falling under a hearsay exception. See J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998) ("[W]e reaffirm the requirement that an independent corpus delicti must be established when offering an admission against interest into evidence."). The State's arguments, were they to prevail, would eviscerate the corpus delicti requirement. See J.A.S. v. State, 920 So. 2d 759, 763 (Fla. 2d DCA 2006) ("[B]efore an accused's statements may be admitted in evidence against him, the State must prove the corpus delicti of the crime. To do so, it must show that (1) the victim suffered a harm of the type contemplated by the charges and (2) the criminal act of another caused the harm." (emphasis added) 3 The State contends that X.S.'s statements qualify under any of these several hearsay exceptions because they are trustworthy: "That he was speaking to his mother under these [excited, fraught] circumstances indicates the statements were trustworthy." Although unnecessary to resolve the issue before us, we are not persuaded that, under these circumstances, a teenager's statements to his parent are inherently trustworthy. 7 (citing State v. Colorado, 890 So. 2d 468, 470 (Fla. 2d DCA 2004))). We will not go where the State tries to lead us. Conclusion X.S.'s statements should not have been allowed into evidence. Without them, the State's evidence was insufficient to prove that X.S. possessed the firearm. Thus, we reverse the order adjudicating him delinquent and remand for entry of an order granting his motion for judgment of dismissal. Reversed and remanded with directions. CASANUEVA and SILBERMAN, JJ., Concur. Opinion subject to revision prior to official publication. 8