FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-2808

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CHRISTOPHER ANTIAWN JONES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Alachua County.

James M. Colaw, Judge.

October 16, 2018

ROWE, J.

Christopher Antiawn Jones appeals his judgment and 

sentence for possession of cocaine, arguing that his motion for 

judgment of acquittal should have been granted because the State 

failed to prove the elements of constructive possession. We agree 

and reverse.

Jones and passenger Namre’h Lyles were pulled over by a 

state trooper on the interstate for following too closely to the car in 

front of them. Jones told the trooper he did not have his license, 

and Jones was instructed to exit the vehicle. Jones and the trooper 

walked behind Jones’s vehicle and stood at the front of the 

trooper’s vehicle where Jones was questioned. Lyles remained 

inside the vehicle.
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Jones told the trooper that his name was Brandon Tremaine 

Bennett and that the car he was driving had been rented by his 

sister. After discovering that Jones had provided a false name, the 

trooper called a K9 unit to the scene. Jones and the trooper 

continued talking by the patrol car. Lyles remained in the rental 

car.

When the K9 unit arrived approximately nine minutes later, 

Lyles exited the vehicle. The canine “Mako” alerted and the 

troopers searched the rental car. They found Jones’s identification 

in the driver’s door pocket and a paper CD case containing

marijuana on the driver’s seat. Lyles had a marijuana grinder in 

her purse. Inside the closed center console, the troopers found a 

baggie of cocaine and a box of “Swisher cigars.” After waiving his 

Miranda rights, Jones admitted his real name was Christopher 

Jones and that the marijuana found on the driver’s seat belonged 

to him. But he denied knowledge of the cocaine found in the center 

console.

Jones was charged with providing false identification to a law 

enforcement officer, possession of less than 20 grams of marijuana, 

possession of drug paraphernalia, and possession of cocaine.

At trial, Jones’s defense counsel admitted to all charges except 

possession of cocaine. The defense moved for judgment of 

acquittal, arguing that the State was required to provide 

independent proof that Jones had knowledge of the cocaine and the 

ability to maintain dominion and control over it because the rental 

vehicle was jointly occupied. Defense counsel also argued that the 

cocaine could have been in the rental car before Jones took control 

over it or Lyles could have placed it in the center console during 

the approximately nine minutes she was left alone in the vehicle

while Jones was outside the vehicle being questioned by the 

troopers. The trial court denied the motion, and Jones was 

convicted as charged.

The evidence against Jones at trial was circumstantial. The 

cocaine was not found on his person and he was not seen placing 

the cocaine in the center console. Thus, in reviewing the trial 

court’s denial of the motion for judgment of acquittal, we “must 

determine whether the State presented competent evidence from 

which the jury could exclude every reasonable hypothesis except 
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guilt.” State v. Burrows, 940 So. 2d 1259, 1262 (Fla. 1st DCA 2006) 

(emphasis in original).

The State’s case was based on a theory that Jones was in 

constructive possession of the cocaine. Constructive possession 

exists where the defendant does not have physical possession of 

the contraband but knows of its presence and can maintain 

dominion and control over it. See Knight v. State, 186 So. 3d 1005, 

1012 (Fla. 2016); Julian v. State, 545 So. 2d 347, 348 (Fla. 1st DCA 

1989). But because the rental car in which the troopers found the 

cocaine was in joint possession, rather than in Jones’s exclusive 

possession, “knowledge” and “ability to maintain dominion and 

control” could not be inferred from Jones’s mere proximity to the 

contraband. See Evans v. State, 32 So. 3d 188, 189-90 (Fla. 1st 

DCA 2010). Rather, the State was required to establish

independent proof of Jones’s knowledge and ability to maintain 

control over the cocaine, such as evidence of incriminating 

statements or actions or circumstantial evidence from which a jury 

might properly infer that Jones had knowledge of the presence of 

the cocaine. Kemp v. State, 166 So. 3d 213, 217 (Fla. 1st DCA 2015) 

(quoting Julian, 545 So. 2d at 348); Robinson v. State, 936 So. 2d

1164, 1167 (Fla. 1st DCA 2006); Brown v. State, 8 So. 3d 1187, 1189 

(Fla. 4th DCA 2009).

This Court’s decision in Kemp is instructive. 166 So. 3d at 

213. There, officers executed a search warrant at a residence and 

searched a vehicle parked in the fenced-in area adjacent to the 

home. Id. at 214. Inside the vehicle’s glove compartment, officers 

found a car rental agreement bearing Kemp’s name. Id. In the 

closed center console, officers found a handgun and a receipt for 

payment of a T-Mobile cell phone bill, also bearing Kemp’s name. 

Id. at 215. The phone bill was dated two days before the search. 

Id. Officers did not perform any DNA or fingerprint testing on the 

firearm or any other items, and none of the occupants of the 

residence, including Kemp, claimed ownership of the gun. Id. 

Kemp was arrested and charged based on the fact that his name 

was on both the rental agreement of the vehicle and on the receipt 

inside the center console with the gun. Id. Kemp moved for 

judgment of acquittal, arguing that the State failed to prove a 

prima facie case of possession of a firearm. Id. The trial court 

denied the motion based on the presence of the T-Mobile receipt 
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bearing Kemp’s name in the same container that was holding the 

gun. Id.

We reversed Kemp’s conviction, finding that the State 

presented no evidence to rebut Kemp’s hypothesis that other 

individuals either drove or occupied the car in the intervening two 

days between the date on the receipt and the search. Id. We noted 

that “although the presence of the T-Mobile receipt bearing 

Appellant’s name suggests Appellant may have placed the receipt 

there, ‘[s]uch an inference, however, provides no time frame with 

regard to when the [gun] came to reside’ in the console, ‘nor any 

help as to appellant’s present dominion over the [gun].’” Id.

(quoting Evans, 32 So. 3d at 191).

Similarly, here, the State failed to present independent proof

that Jones had knowledge and control over the cocaine found in 

the closed center console of a jointly occupied vehicle. In arguing

that Jones had knowledge and control over the cocaine, the State 

relied heavily on Jones’s multiple requests to the troopers during 

the time he was questioned outside the vehicle to smoke a “Black

and Mild,” along with evidence that “Swisher cigars” were found 

in the closed center console where the cocaine was found. 

However, there was no testimony or evidence that a “Black and 

Mild” cigarette is the same as a “Swisher cigar.” 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. 

Edwards v. State, 186 So. 3d 1069, 1072 (Fla. 2d DCA 2016)

Even viewing the evidence in a light most favorable to the 

State and assuming the “Swisher cigars” found in the center 

console belonged to Jones, such evidence would not be sufficient to 

establish Jones’s knowledge of the cocaine or rebut Jones’s 

hypothesis of innocence. Although the cigars were present in the

center console at the time of the search, no time frame was 

established with regard to when the cocaine came to reside in the 

center console, nor was there any indication of Jones’s present 

dominion over the cocaine. See Kemp, 166 So. 3d at 215; Evans, 32 
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So. 3d at 191. The trooper took Jones’s fingerprints, but the baggie 

of cocaine was never tested for fingerprints or DNA. 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. 

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. The dash cam footage played at trial showed that 

Lyles was alone in the vehicle for at least nine minutes while Jones 

and the trooper were behind the vehicle and out of view. The State 

failed to present sufficient evidence or testimony to rebut Jones’s 

hypothesis that Lyles placed the baggie of cocaine in the center 

console during that time. See Kemp, 166 So. 3d at 215; see also 

N.K.W., Jr. v. State, 788 So. 2d 1036, 1038 (Fla. 2d DCA 2001) 

(holding evidence was insufficient to establish constructive 

possession where, although drugs were found in a plastic bag 

inside defendant’s wallet, defendant was never asked if the bag 

belonged to him, no fingerprints were lifted from the bag, 

defendant denied ownership of the bag, and multiple people had 

access to the room where his wallet was located).

The State also argued that while Jones and Lyles were in the 

back of the trooper’s vehicle, Jones apologized to Lyles “about the 

process that this is” and indicated his intention to “let them know 

that, too.” The State contends that these statements support an 

inference that “that” refers to the cocaine found in the center 

console and that Jones had knowledge of it. After careful review 

of the record, we find that Jones’s statements to Lyles are far too 

vague to support an inference that he had knowledge of the 

cocaine. Nor do the statements by Jones to Lyles rebut Jones’s

reasonable hypothesis that it was Lyles who placed the cocaine in 

the center console.

Finally, the State argues that Jones’s nervousness and 

conduct during questioning by the troopers is independent proof of 

his knowledge of the cocaine found in the vehicle. But Jones’s 

nervousness and failure to perceptibly react when he heard about 
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the discovery of the cocaine in the vehicle does not constitute 

independent proof of Jones’s dominion or control of the cocaine 

because Jones’s nervousness could equally be attributable to the 

fact that Jones had been stopped or that he was found with 

marijuana on the driver’s seat and driving without a license. See 

Smith v. State, 123 So. 3d 656, 658 (Fla. 2d DCA 2013).

Because the State failed to rebut Jones’s reasonable 

hypothesis of innocence or provide independent proof that he had 

knowledge and control over the cocaine found in the center console, 

the trial court erred in denying the motion for judgment of 

acquittal. Jones’s conviction and sentence for possession of cocaine 

are REVERSED.

B.L. THOMAS, C.J., and M.K. THOMAS, J., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Andy Thomas, Public Defender, and Glenna Joyce Reeves, 

Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Steven E. Woods, 

Assistant Attorney General, Tallahassee, for Appellee.