DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DONTE AHMAD MCCRAY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-2006

[ September 5, 2018 ]

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

Beach County; Charles E. Burton, Judge; L.T. Case No. 

562016CF007705A.

Carey Haughwout, Public Defender, and Erika Follmer, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. 

Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Donte McCray appeals his conviction and sentence for possession of 

heroin. Because appellant was not in actual possession of the heroin and 

the state failed to prove constructive possession, we reverse appellant’s 

conviction and sentence for possession of heroin and remand for entry of 

a judgment of acquittal on this charge.

On August 2, 2016, a Boynton Beach Police officer conducted a traffic 

stop of the vehicle appellant was driving. As the officer exited his marked 

police car, appellant got out of his vehicle. Instead of following the officer’s 

instructions to get back in his vehicle, appellant started running, and the 

officer chased him on foot. While appellant was running, the officer 

observed appellant “aggressively reaching in his waistband” and looking 

over his shoulder at the officer. The officer thought appellant was reaching 

for a weapon, so he drew his firearm and told appellant to stop running, 

remove his hands from his waistband, and show his hands. Appellant 

continued running but ended up falling to the ground. He appeared to 

have lost his balance.
2

The officer moved in and jumped on top of appellant, holding him down 

until backup officers arrived. When the officer searched appellant’s 

waistband area, he did not find anything. The officer believed that 

whatever appellant had been reaching for inside his waistband had fallen, 

but he testified that he did not see appellant drop or throw anything.

After appellant was handcuffed, officers searched him but did not find 

a firearm or weapon. Appellant did not have a driver’s license on his 

person or in his vehicle. Later, a driver’s record search revealed that 

appellant’s license was revoked and appellant was notified of the 

revocation. Over objection, the trial court allowed testimony that the police 

found $880 cash on appellant’s person.

An officer who arrived on the scene when appellant was handcuffed and 

lying on the ground testified that she did not see appellant holding 

anything, but the officer who conducted the traffic stop told her something 

may have been thrown. She followed in the direction where the officer 

pointed, and within thirty seconds she found a clear plastic bag about ten 

feet from where appellant had been stopped. The bag was filled with clear 

capsules that contained a brown substance later identified as heroin. The 

police did not test the bag or capsules for fingerprints.

The state charged appellant with possession of heroin, resisting an 

officer without violence, and driving while his license was canceled, 

suspended, or revoked. The trial court denied appellant’s motion for 

judgment of acquittal on the drug possession charge. The jury found 

appellant guilty on all counts as charged.

At sentencing, appellant moved for a downward departure sentence, 

based on his need for specialized treatment for a mental disorder 

(unrelated to substance abuse or addiction) and his amenability to 

treatment, pursuant to section 921.0026(2)(d), Florida Statutes. The state 

responded that it did not oppose appellant’s request for mental health and 

drug treatment, but argued that such treatment could be provided while 

appellant is in the custody of the Department of Corrections (“DOC”). The 

trial court declined to impose a downward departure sentence, finding that

all the services about which appellant’s witnesses testified were available 

in the DOC, if appellant chose to avail himself of them. The court then 

sentenced appellant to sixty months in prison for possession of heroin, one 

year for resisting an officer without violence, and sixty days for driving 

while his license was canceled, suspended or revoked. Appellant received

credit for 105 days served.
3

Appellant argues on appeal that the trial court erred by: (1) allowing 

the state to elicit testimony about common drug practices and that 

appellant had a significant sum of cash on his person; (2) reading an 

inapplicable, incomplete, and confusing jury instruction regarding the 

presumption of knowledge of the illicit nature of the substance; (3) denying 

appellant’s motion for judgment of acquittal; and (4) finding no reason to 

depart from the sentencing guidelines because the Department of 

Corrections could provide the necessary treatment for appellant’s 

condition. Because we are reversing appellant’s conviction for possession 

of heroin and remanding for entry of a judgment of acquittal on this 

charge, we need address only the judgment of acquittal issue.

The denial of a motion for judgment of acquittal is reviewed de novo. 

R.H. v. State, 56 So. 3d 156, 157 (Fla. 4th DCA 2011). A judgment of 

acquittal should not be granted unless no reasonable view favorable to the 

state exists. Santiago v. State, 70 So. 3d 720, 723 (Fla. 4th DCA 2011). 

An appellate court ordinarily will not reverse a conviction that is supported 

by competent, substantial evidence. Harris v. State, 72 So. 3d 804, 806 

(Fla. 4th DCA 2011).

To prove constructive possession, “the state must show that the 

defendant had knowledge of the contraband’s presence and the ability to 

exercise dominion and control over it.” Duncan v. State, 986 So. 2d 653, 

655 (Fla. 4th DCA 2008) (citing Edmond v. State, 963 So. 2d 344, 345-46 

(Fla. 4th DCA 2007)). Moreover:

[i]f the premises on which the contraband is found is in joint, 

rather than exclusive, possession of a defendant, knowledge 

of the presence of the contraband on the premises and the 

accused’s ability to maintain control over it will not be 

inferred, but must be established by independent proof. 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. 

Mere proximity to contraband is not sufficient to establish 

constructive possession.

J.M. v. State, 839 So. 2d 832, 834 (Fla. 4th DCA 2003) (quoting Dupree v. 

State, 705 So. 2d 90, 94 (Fla. 4th DCA 1998)).

Here, the state failed to carry its burden of proving constructive 
4

possession. The state’s evidence consisted almost entirely of testimony 

about appellant’s flight and proximity to the contraband. No witnesses 

testified that they saw drugs on appellant’s person or saw him drop or toss 

the drugs to the ground while he fled or was detained. No evidence was 

presented that appellant’s fingerprints were found on the contraband. 

Moreover, the area where the heroin was found was a public area with 

heavy foot traffic and thus was not in appellant’s exclusive control. The 

state needed to present independent proof of knowledge and control. See 

Duncan, 986 So. 2d at 655 (“Where the premises are in joint possession, 

knowledge of the contraband’s presence and the defendant’s ability to 

control the same will not be inferred and must be established by 

independent evidence.”).

This case is factually similar to Agee v. State, 522 So. 2d 1044, 1045 

(Fla. 2d DCA 1988). There, the Second District held that evidence of mere 

proximity to a match box containing heroin and flight from the police was 

insufficient to prove constructive possession of the heroin. Id. at 1045-46. 

The defendant in Agee had walked hurriedly away from police and was 

crouched behind a large oak tree. Id. at 1045. An officer approached the 

defendant, told him to stand up, and looked down to see a match box 

containing heroin on the grass about one foot from where the defendant 

had been crouching. Id. The court noted that the heroin was found in a 

public place where others were on the premises and that there was no 

evidence that the defendant ever touched the match box containing the 

heroin. The appellate court held that the trial court erred in denying Agee’s 

motion for judgment of acquittal. Id. at 1046.

We similarly conclude that the trial court erred in denying appellant’s 

motion for judgment of acquittal, because the state failed to prove by 

competent, substantial evidence that appellant was in constructive 

possession of heroin. Accordingly, we reverse appellant’s conviction for 

possession of heroin and remand for entry of a judgment of acquittal on 

that charge.

Reversed and Remanded for Entry of Judgment of Acquittal on the 

charge of possession of heroin.

LEVINE and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.