DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

R.C.R., a Child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-4627

[August 12, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Ronald V. Alvarez, Judge; L.T. Case No. 13CJ002893AMB.

Carey Haughwout, Public Defender, and Virginia Murphy, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, 

Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

Appellant R.C.R., a child, appeals the final disposition order finding 

him guilty of possession of cocaine and criminal mischief, adjudicating 

him delinquent, and sentencing him to a commitment program and to 

post-commitment probation. Appellant challenges the sufficiency of the 

evidence to support a finding that he constructively possessed cocaine. 

We agree the evidence was insufficient to show actual or constructive 

possession under the circumstances and, therefore, reverse.

Background

Appellant was arrested on a charge unrelated to the instant case. When 

Appellant was on the ground during the arrest, an officer searched inside 

his pockets, removing only a cell phone. During the arrest, Appellant was 

uncooperative and kept trying to pull away from the deputy. The deputy 

conducted a search of Appellant for weapons, which was primarily a patdown search of Appellant’s outer layers of clothing. Appellant then was 

placed in the back of a patrol car. Appellant was screaming, kicking, and 

thrashing around in the back of the car. Appellant’s thrashing caused 
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physical damage to the police vehicle. He was placed in handcuffs and a 

hobble restraint.

Appellant then was transported to a hospital to be medically cleared, 

which he was, and he next was taken to a juvenile assessment center. The 

deputy observed Appellant moving around from side to side or ducking 

down during the drive.

The deputy drove the patrol car back to the station to review the 

damage. At the station, the deputy opened the back driver’s side door and 

saw a plastic baggie with a white substance in between the seat and the 

doorframe. The deputy testified that she did not see it earlier because of 

the angle she was standing when she opened the door and because it was 

dark outside. The deputy photographed the baggie and then field-tested 

the substance in the bag, which tested positive for cocaine. She did not 

test it for fingerprints or DNA.

The deputy never saw Appellant with a baggie of cocaine, but she 

testified that the baggie was not there when she checked her vehicle at the 

beginning of her shift and Appellant was the only person in her patrol car 

that day. No one had been in the back of the car for five days prior. The 

deputy testified that the baggie did not belong to her. Appellant testified 

he was never in possession of cocaine that night.

Appellant was charged with possession of cocaine and criminal 

mischief. The case proceeded to a bench trial. Testimony was taken as to 

the above facts. Appellant moved for judgment of dismissal at the end of 

his case as to the charge of possession of cocaine, arguing that the 

circumstantial evidence is susceptible to an interpretation that Appellant 

is innocent because someone else could have left the baggie in the vehicle 

and this reasonable hypothesis was not rebutted. Appellant also argued 

that, because the baggie was not in plain view, the State does not get the 

benefit of the presumption that Appellant had knowledge of the cocaine in 

the vehicle to establish constructive possession. The trial court did not 

expressly deny the motion, but it found Appellant guilty as charged. This 

appeal followed.

Standard of Review

We review the sufficiency of the evidence for a judgment of dismissal in 

delinquency proceedings de novo. F.Q. v. State, 98 So. 3d 783, 784 (Fla. 

4th DCA 2012). “If, after viewing the evidence in the light most favorable 

to the State, a rational trier of fact could find the existence of the elements 

of the crime beyond a reasonable doubt, sufficient evidence exists to 
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sustain a conviction.” Id. (quoting Fitzpatrick v. State, 900 So. 2d 495, 507 

(Fla. 2005)).

Analysis

The crime of possession of cocaine requires a showing that (1) the 

defendant possessed a substance, (2) that substance was cocaine, and (3) 

the defendant had knowledge of the presence of the substance. Meme v. 

State, 72 So. 3d 254, 256 (Fla. 4th DCA 2011) (referencing § 893.13(6)(a), 

Fla. Stat.). In the instant case, the fact that the substance was cocaine is 

not in dispute. The element in dispute is possession, which may be shown 

by actual possession or constructive possession. Williams v. State, 154 

So. 3d 426, 428 (Fla. 4th DCA 2014).

A. No Evidence of Actual Possession

“Possession is actual when the contraband is (1) in the defendant’s 

hand or on his person, (2) in a container in the defendant’s hand or on his 

person, or (3) within the defendant’s ‘ready reach’ and the contraband is 

under his control.” Meme, 72 So. 3d at 256 (internal quotations and 

citation omitted) (emphasis in original).

The State maintains that Appellant had actual possession of the 

cocaine. However, there was no testimony that Appellant had the cocaine 

in his hands or that the cocaine was found in a container that Appellant

was holding or otherwise on his person. In fact, the deputy said she never 

saw Appellant with the cocaine and the baggie was not found when 

Appellant’s pockets were searched or when he was patted down, before he 

was placed in the patrol car. 

Additionally, the facts do not support that the cocaine was within 

Appellant’s “ready reach” and was under his control. Id. Appellant was 

handcuffed and hobbled in the back of the patrol car. As such, very little 

was in his “ready reach,” and it is unlikely that he could have maneuvered 

his handcuffed hands and control an object below the seat in the door 

jamb. Even if the cocaine was physically within his reach, it does not 

appear to have been in his ready reach where significant maneuvering 

would have been required to get to that location. The testimony was only 

that the deputy observed Appellant moving side-to-side a couple of times 

and once or twice he ducked down a little bit. Cf. id. at 256-57 (finding 

“ready reach” where the defendant was driving a car without any physical 

restraints and was seen by the officer reaching down to the area where the 

contraband was eventually found and no one else in the vehicle had 

moved); McCoy v. State, 840 So. 2d 455, 456 (Fla. 4th DCA 2003) (finding 
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“ready reach” where the defendant was sitting alone on a front porch and 

the contraband was in a cup in arm’s reach of him); State v. Williams, 742 

So. 2d 509, 510, 512-13 (Fla. 1st DCA 1999) (finding “ready reach” where 

the defendant was driving a vehicle unrestrained and, after he exited the 

vehicle, officers found a baggie of cocaine in between the driver’s seatbelt 

connector and the center console).

B. No Evidence of Constructive Possession

In regards to constructive possession, we have explained,

Constructive possession exists where a defendant does not 

have actual physical possession of contraband but knows of 

its presence on or about his premises and has the ability to 

exercise dominion and control over it. Mere proximity to 

contraband, standing alone, is insufficient to establish 

constructive possession of the substance. The state must 

present independent proof of the defendant’s knowledge and 

ability to control the contraband. 

Williams, 154 So. 3d at 428 (citations omitted). When the defendant has 

exclusive possession of the area where the contraband is found, “the 

defendant’s knowledge of the contraband and ability to maintain control 

over it may be presumed” for purposes of constructive possession. Sinclair 

v. State, 50 So. 3d 1223, 1225-26 (Fla. 4th DCA 2011). In the possession 

context, we have construed the term “exclusive” to mean “vested in one 

person alone.” Lee v. State, 835 So. 2d 1177, 1179 (Fla. 4th DCA 2002).

In the case of jointly-occupied premises, the knowledge and ability to 

control elements will not be inferred and must be established by 

independent proof. Brown v. State, 428 So. 2d 250, 252 (Fla. 1983).

Such proof may consist either of evidence establishing that 

the accused had actual knowledge of the presence of the 

contraband, or of evidence of incriminating statements and 

circumstances, other than the mere location of the substance, 

from which a jury might lawfully infer knowledge by the 

accused of the presence of the contraband on the premises.

In re E.H., 579 So. 2d 364, 365 (Fla. 4th DCA 1991) (quoting Murphy v. 

State, 511 So. 2d 397, 399 (Fla. 4th DCA 1987)). Additionally, the 

knowledge element “may be satisfied where the contraband is found in 

plain view in a common area of the premises.” Williams, 154 So. 3d at 

429.
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In our instant case, the first issue is thus whether Appellant had 

exclusive control of the area where the contraband was found. The facts 

are not in favor of finding exclusive control under our definition. Control 

of the backseat of the patrol car was not vested in Appellant alone. Lee, 

835 So. 2d at 1179. While the deputy testified that she checked her vehicle 

the morning of her shift and the contraband was not there, there is no 

testimony as to when the baggie was placed in the car; and, even though 

no other arrestees were in the backseat during Appellant’s arrest, multiple 

officers had access to the backseat (and specifically the area between the 

seat and the door jamb) during the range of potential time that the baggie 

could have been placed there. Additionally, the deputy was in control of 

her vehicle the entire time, further making Appellant’s control only jointly 

held. Therefore, without exclusive control, the elements of knowledge and 

control cannot be presumed to find constructive possession. Brown, 428 

So. 2d at 252.

From the evidence presented, there was no independent proof showing 

that Appellant ever had knowledge of the presence of the contraband. See 

In re E.H., 579 So. 2d at 365. There was no testimony that Appellant ever 

possessed any cocaine or that he had seen the baggie in the door jamb or 

that his statements otherwise indicated that he knew of its presence. To 

the contrary, the deputy testified that she never saw Appellant with any 

contraband, and Appellant testified that he was never in possession of 

cocaine, nor did he see any cocaine that night. 

Nor do the testimony and the photographic evidence support that the 

contraband was in plain view to establish knowledge in that sense. The 

photograph of the baggie of cocaine admitted into evidence showed that 

the baggie was found between the end of the backseat and the door, 

making it only visible when the door was open. The deputy testified that 

it could only be seen with the door open from certain angles, as she missed 

it when she previously had opened the door for Appellant at the hospital 

and then again at the detention center. Additionally, as in Culver v. State,

990 So. 2d 1206, 1209–10 (Fla. 2d DCA 2008), “the State did not present 

any fingerprint evidence, admissions, eyewitness testimony, or other 

evidence tending to establish . . . dominion and control.” Accordingly, 

constructive possession was not established.

Conclusion

Because the State did not present evidence to show Appellant’s actual 

or constructive possession of cocaine, the State failed to present a prima 

facie case to overcome a judgment of dismissal. Because the trial court 
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erred in denying the motion for judgment of dismissal, we reverse and 

remand for resentencing on the charge of criminal mischief alone.

Reversed.

CIKLIN, C.J., and KLINGENSMITH, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.