NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

TIMOTHY LEE DOBBINS, )

)

Appellant, )

)

v. ) Case No. 2D18-401

)

STATE OF FLORIDA, )

)

Appellee. )

)

Opinion filed July 24, 2019. 

Appeal from the Circuit Court for Pinellas 

County; Chris Helinger, Judge.

Howard L. Dimmig, II, Public Defender, and 

Brett S. Chase, Special Assistant Public 

Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, 

Tallahassee, and Katie Salemi Ashby, 

Assistant Attorney General, Tampa, for 

Appellee.

VILLANTI, Judge.

Timothy Dobbins appeals his conviction for burglary of a structure causing 

damage greater than $1000. Because the evidence in this case was entirely 

circumstantial and because the State failed to rebut, by competent substantial evidence, 

Dobbins' reasonable hypothesis of innocence, we must reverse.
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The evidence presented at trial showed that the structure at issue was a 

school that had been vacant for two years. The school's property manager testified he 

was notified on November 25, 2014, that the school's gate was open. Because it was 

raining, he waited until the following morning to inspect the school. He then discovered 

that the school had been ransacked and had suffered extensive damage, including the 

theft of thousands of dollars' worth of computer equipment and large amounts of copper 

wiring. The property manager testified that he had not seen any damage when he 

visited the school five days prior. During the ensuing investigation, the police collected 

a number of cigarette butts that were found in the school's kitchen.

A few weeks later, on December 20, 2014, an officer pulled over a white 

Ford F-150 truck occupied by Dobbins and one Clinton Ingram because its tags were 

expired. The detective who searched the truck found bolt cutters, audio/video cables, 

and a compass from the school in the bed of the truck. Numerous cigarette butts were 

also found in the vehicle. The State introduced evidence that the truck had been 

previously registered to Dobbins; however, there was also evidence that Ingram 

frequently drove the truck and would sell tools from it. Neither Dobbins nor Ingram were 

arrested for the school burglary at the time of the stop, and the State offered no 

evidence from the stop to indicate that either Dobbins or Ingram knew the property in 

the bed of the truck had been stolen from the school several weeks previously. 

However, on December 25, 2014, an officer was dispatched to the school 

after a silent alarm was triggered. The responding officer saw two people running away 

from the school, one of whom was caught and identified as Ingram. Ingram was 

subsequently released on bail, failed to appear, and was still at large at the time of 
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Dobbins' trial. A few months later, a forensic expert determined that DNA from one of 

the cigarette butts found at the school matched Dobbins' DNA; he was subsequently 

arrested for the burglary of the school. 

After the State rested its case, Dobbins' moved for a judgment of acquittal, 

arguing that the State's evidence was solely circumstantial and did not contradict his 

reasonable hypothesis of innocence, i.e., that while the cigarette may have proven his 

presence at the school at some point in time, it was insufficient to prove that he 

committed the charged burglary. Furthermore, Dobbins argued that his mere presence 

near the stolen property did not prove possession. The trial court denied the motion, 

and the jury convicted Dobbins as charged. Dobbins now appeals his conviction and 

sentence, contending that the trial court erred by denying his motion for judgment of 

acquittal.

The denial of a motion for a judgment of acquittal is subject to de novo 

review. See State v. Platt, 154 So. 3d 1200, 1201 (Fla. 2d DCA 2015) (citing Pagan v. 

State, 830 So. 2d 792, 803 (Fla. 2002)). "[W]here the only proof of guilt is 

circumstantial, no matter how strongly the evidence may suggest guilt, a conviction 

cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis 

of innocence." Knight v. State, 186 So. 3d 1005, 1009 (Fla. 2016) (quoting Jaramillo v. 

State, 417 So. 2d 257, 257 (Fla. 1982)). Circumstantial evidence that fails to exclude a 

defendant's reasonable hypothesis of innocence requires an acquittal "no matter how 

strongly the evidence may suggest guilt." Singleton v. State, 105 So. 3d 542, 544 (Fla. 

2d DCA 2012) (quoting State v. Law, 559 So. 2d 187, 188 (Fla. 1989)). 
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In this appeal, Dobbins relies on this court's opinion in Singleton to support 

his contention that the State's evidence was legally insufficient to support his conviction. 

In Singleton, the evidence showed that the day before the burglary at issue, Singleton 

and his friend were helping someone move. Id. at 543. The person who rented the 

moving truck had the only key and was due to pick up the truck the next day. The 

morning after the move, the police received a report that items had been stolen from the 

house next door. Id. While searching the area, police smelled a tobacco odor 

emanating from inside the rental truck. When the officer opened the door of the truck, 

he found the stolen items along with a burning cigar near the rear edge of the truck. 

Singleton's DNA was later detected on the cigar. Id. The State also presented 

evidence that Singleton smoked that type of cigar and had been seen in the area earlier 

that morning walking his dog. Id. at 542-43. The State contended that this evidence 

was sufficient to support Singleton's convictions for burglary and grand theft, the trial 

court denied Singleton's motion for judgment of acquittal, and the jury convicted him of 

these offenses. Id. at 544. 

On appeal, this court held that the "State's proof was woefully lacking." 

Id. at 545. Quoting Professor Ehrhardt's classic example, this court reiterated the 

difference between direct and circumstantial evidence: 

Direct evidence is evidence which requires only the 

inference that what the witness said is true to prove a 

material fact; e.g., "I saw A shoot B" is direct evidence that A 

shot B. Circumstantial evidence is evidence which involves 

an additional inference to prove the material fact; e.g., "I saw 

A flee the scene" is circumstantial evidence of A's guilt and 

direct evidence of flight.
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Id. at 544 (quoting Charles W. Ehrhardt, Florida Evidence § 401.1 (2011 ed.)). And 

because the only evidence presented by the State to connect Singleton to the burglary 

and theft was circumstantial, that evidence was legally insufficient to support his 

convictions. Id. at 545. 

In this case, as in Singleton, the DNA evidence presented by the State 

failed to establish that Dobbins committed the burglary at the school. At most, the DNA 

on the cigarette established that Dobbins was present at the school sometime around 

the time a burglary was committed. However, as we held in Singleton, "an accused's 

mere presence at the scene does not eliminate a reasonable hypothesis that someone 

other than the accused committed the crime." Id. at 545 (citing Valdez v. State, 504 So. 

2d 9, 10 (Fla. 2d DCA 1986) ("Mere knowledge that an offense is being committed is not 

the same as participation with criminal intent."), and Owen v. State, 432 So. 2d 579, 581 

(Fla. 2d DCA 1983) ("[W]hen the state relies on circumstantial evidence, the 

circumstances, when taken together, must be of a conclusive nature and tendency, 

leading on the whole to a reasonable and moral certainty that the accused and no one 

else committed the offense charged.")). Hence, the fact that the DNA on the cigarette 

could place Dobbins in the school at some point in time was insufficient to establish 

either that he was there on the date the crime was committed or that he participated in 

committing it.

The State contends that Singleton does not control the outcome of this 

case because, in this case, both Dobbins and Ingram were found in possession of 

property stolen from the school. The State argues that the evidence of possession can 

support Dobbins' conviction because possession of recently stolen property gives rise to 
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an inference that the one in possession committed the burglary or theft. See 

§ 812.022(2), Fla. Stat. (2014) (providing that proof of possession of property recently 

stolen, unless satisfactorily explained, gives rise to an inference that the person in 

possession of the property knew or should have known that the property had been 

stolen); see also Walker v. State, 896 So. 2d 712, 720 n.5 (Fla. 2005) (applying the 

inference regarding possession of recently stolen property to a case involving 

constructive possession). However, this argument is not supported by the record. 

"To establish constructive possession, the State must 'prove beyond a 

reasonable doubt that the defendant knew of the presence of the illegal items [and] was 

able to exercise dominion and control over them.' " Sanders v. State, 210 So. 3d 246, 

248 (Fla. 2d DCA 2017) (alteration in original) (quoting Hargrove v. State, 928 So. 2d 

1254, 1256 (Fla. 2d DCA 2006)). "[T]he requisite control is not established by an 

accused's mere proximity to the contraband." Id. (quoting G.G. v. State, 84 So. 3d 

1162, 1164 (Fla. 2d DCA 2012)). And this is particularly true in a jointly occupied 

vehicle. See K.A.K. v. State, 885 So. 2d 405, 407 (Fla. 2d DCA 2004) (" 'In a case of a 

jointly-occupied vehicle, knowledge and ability to control the contraband may not be 

inferred, but must be established by independent proof.' E.A.M. v. State, 684 So. 2d 

283, 284 (Fla. 2d DCA 1996). 'This proof must consist either of actual knowledge of the 

contraband's presence or evidence of incriminating statements and circumstances from 

which the jury reasonably might infer the accused's actual knowledge of the presence of 

the contraband.' A.C. v. State, 658 So. 2d 1173, 1174 (Fla. 2d DCA 1995)."). Cf. 

Meme v. State, 72 So. 3d 254, 256-57 (Fla. 4th DCA 2011) (holding that the State 

presented sufficient evidence to withstand a motion for judgment of acquittal where an 
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officer saw the defendant in the jointly occupied vehicle reaching to the place where the 

contraband was later found). 

In this case, the State did not present evidence to prove that Dobbins had 

constructive possession of any of the school's property. The officer who pulled over 

Dobbins and Ingram did not testify; thus, it is unknown who was driving the truck or 

whether the stolen goods were within anyone's ready reach. And although there was 

testimony that the truck was previously registered to Dobbins, there was also testimony 

that Ingram frequently used the truck. Thus, there was insufficient evidence to prove 

that Dobbins knew of the presence of the stolen items in the truck or was able to 

exercise dominion and control over them. In the absence of such evidence, the State 

failed to prove that Dobbins had possession—either actual or constructive—of the 

stolen property so as to support his conviction for burglary. 

In summary, the sole cigarette butt found at the school with Dobbins' DNA 

on it proved, at most, that Dobbins had trespassed at some time in the past. It did not 

prove that he committed a burglary that caused damage in excess of $1000. Therefore, 

because the State's evidence was legally insufficient, the trial court erred in denying 

Dobbins' motion for judgment of acquittal. We therefore reverse Dobbins' judgment and 

sentence and remand for discharge. 

Reversed and remanded with directions.

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.