              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


TRAVIS MONTEZ EDWARDS,                       )
                                             )
             Appellant,                      )
                                             )
v.                                           )       Case No. 2D15-612
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed February 12, 2016.

Appeal from the Circuit Court for Manatee
County; Barbara Fleischer, Associate
Senior Judge.

Howard L. Dimmig, II, Public Defender, and
Robert D. Rosen, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Marilyn Muir Beccue,
Assistant Attorney General, Tampa, for
Appellee.



MORRIS, Judge.


             Travis Montez Edwards appeals his judgment and sentence for

possession of cocaine. Because we conclude that the State failed to prove that
Edwards was in constructive possession of the cocaine, the trial court erred by denying

Edwards's motion for judgment of acquittal. We therefore reverse and remand.

                                     I. Background

             In March 2014, Manatee County Sheriff's deputies were called to a motel

in Bradenton to investigate a possible robbery. When they arrived, they encountered

the victim who informed them she had been robbed by Edwards and his friend, Rachel

Simms. The officers located Edwards and Simms in a motel room and interviewed

them. During the investigation, the officers discovered a car key for a vehicle parked

outside. One of the officers had seen Edwards sitting in the driver's seat of the vehicle

a couple of hours prior to the robbery call. As a result, the officers asked Edwards for

consent to search the vehicle. Edwards notified the officers that he did not own the

vehicle but instead had borrowed it. The officers then obtained consent from the owner

of the vehicle, but the owner advised the officers that the key found in the motel room

would only work in the vehicle's ignition. It would not open the vehicle because the

vehicle was equipped with a combination lock. The owner gave the officers the

combination to unlock the vehicle, but the evidence reflected that Edwards knew the

combination as well.

             During the search of the vehicle, one of the officers located a gray canvas

bag under the driver's seat. Inside that bag was a wallet that contained Edwards's

identification card as well as a bail bond receipt bearing the name of "Joanne A.

Simms." The robbery victim's identification card was also found in the canvas bag

along with a few other items that contained no identifying information. The police report

reflected that there was a smaller purple bag inside the canvas bag and inside that




                                           -2-
smaller bag was a plastic baggie containing rock cocaine. The officer who found the

cocaine testified that there was indeed a purple bag inside the canvas bag despite the

fact that there was no purple bag submitted into evidence at the sheriff's office.

              Edwards was arrested and charged with robbery with a firearm and

possession of cocaine. At trial, Simms testified regarding the events leading up to and

including the alleged robbery. However, her testimony revealed some inconsistencies

regarding exactly when she had been inside the vehicle in question. She at first

admitted going with Edwards and the victim to get cigarettes, but she subsequently

denied being in the vehicle on the day of the alleged robbery. However, Edwards

testified that on the relevant date, he, Simms, and the victim all got into the vehicle and

went to a local convenience store to obtain cigarettes. He testified that Simms drove

the vehicle there. He denied possessing the cocaine, and there was no evidence

presented regarding ownership of the canvas bag or the purple bag within the canvas

bag. There was also no fingerprint evidence submitted.

              Edwards moved for judgment of acquittal arguing that the vehicle had

been jointly occupied and that the State had failed to present independent proof that

Edwards had knowledge of the cocaine and the ability to maintain dominion or control

over it. He proffered that it was possible that Simms or the victim placed the cocaine in

the bag. His motion was denied.

              Ultimately, the jury acquitted Edwards of the armed robbery charge but

found him guilty of the possession charge. He was sentenced to a suspended five-year

prison sentence and placed on one year of community control followed by two years of




                                            -3-
probation. His license was also suspended, and a community service requirement was

imposed.

                                        II. Analysis

              We employ de novo review over the denial of a motion for judgment of

acquittal. See Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). We will only reverse if

the conviction is not supported by competent, substantial evidence. See id. Yet

"[w]here, as here, the evidence of the defendant's guilt is entirely circumstantial, a

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

hypothesis of innocence." Bennett v. State, 46 So. 3d 1181, 1183 (Fla. 2d DCA 2010)

(citing State v. Law, 559 So. 2d 187, 188 (Fla. 1989)).

              Here, Edwards was not found in physical possession of the cocaine and

thus the State's case was predicated on constructive possession. The State was

required to prove, beyond a reasonable doubt, that Edwards knew of the presence of

the cocaine and had the ability to exercise dominion and control over it. Bennett, 46 So.

3d at 1184; Jackson v. State, 995 So. 2d 535, 539 (Fla. 2d DCA 2008). "The

surrounding circumstances must support the inference of a 'conscious and substantial

possession by the accused, as distinguished from a mere involuntary or superficial

possession.' " Jackson, 995 So. 2d at 539 (quoting Reynolds v. State, 111 So. 285, 286

(Fla. 1926)). "Mere proximity to contraband, without more, is legally insufficient to prove

possession." Id. (quoting Pena v. State, 465 So. 2d 1386, 1388 (Fla. 2d DCA 1985)).

              The evidence failed to show that Edwards had knowledge of the presence

of or had the ability to exercise dominion and control over the cocaine. Although he

admitted borrowing the car, knew the combination to unlock it, and had been seen




                                            -4-
sitting in the driver's seat a couple of hours prior to the alleged robbery, he was not with

the vehicle when the officers arrived. Further, there was evidence presented that

Simms and the victim had been in the vehicle with Edwards that day and that Simms

had actually driven the vehicle.

              Where the area in which drugs are found is in joint, rather than exclusive

possession, a defendant's "knowledge of the contraband's presence and the ability to

control it will not be inferred from the ownership but must be established by independent

proof." Jackson, 995 So. 2d at 539 (quoting Brown v. State, 428 So. 2d 250, 252 (Fla.

1983)). This can be done either "through 'evidence that the defendant had actual

knowledge of the presence of the contraband or evidence of incriminating statements or

circumstances, other than simple proximity to the contraband, from which the jury could

infer the defendant's knowledge' of the contraband." Id. (quoting Wagner v. State, 950

So. 2d 511, 513 (Fla. 2d DCA 2007)). "An 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." Id.

              However, in this case, the cocaine was found in an area that the evidence

reflected had been jointly occupied, and the cocaine was found near personal property

which was shown to be owned or controlled by at least three people including Edwards.

The victim's identification card was located inside the gray canvas bag, and a bail bond

receipt bearing the name of "Joanne A. Simms" was found inside Edwards's wallet.

Consequently, under these limited circumstances, we refuse to apply an inference of

Edwards's knowledge of the presence of and dominion and control over the cocaine.




                                            -5-
Cf. Jackson, 995 So. 2d at 540-41 (holding that surrounding circumstances were

sufficient for a rational jury to conclude that the drugs contained in a change purse

located near the defendant were known to him and were under his dominion and control

where the change purse appeared to have spilled from a larger purse, the defendant

was known to carry a purse and there were no other purses in the dwelling, the

defendant's identification was found inside a cigarette case that also appeared to have

spilled from the purse, and there was no evidence in or around the purse or the change

purse that they belonged to anyone other than defendant).

              This court has previously reversed a conviction based on constructive

possession where a defendant was in a jointly occupied vehicle and drugs were located

near his personal belongings but the items were in an area to which the other

passengers had equal access. 1 See, e.g., S.B. v. State, 657 So. 2d 1252, 1253 (Fla. 2d

DCA 1995) (holding that evidence was not inconsistent with the defendant's theory that


              1
                Similar dispositions have occurred where drugs were found concealed
near a defendant's personal property inside jointly occupied houses. See, e.g., Bennett,
46 So. 3d at 1183 (holding in relevant part that the State failed to prove constructive
possession of drugs found inside a cardboard box where defendant's shirt was found
because there was no evidence to prove who owned the other clothes in the box and
defendant had a reasonable hypothesis that he threw his shirt on top of the box without
knowing that the drugs were inside); 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); Evans v. State, 32 So. 3d 188, 189-90 (Fla. 1st DCA
2010) (holding that the State failed to prove constructive possession where drugs were
hidden in a pain reliever bottle inside a small toiletry bag, which was itself inside a duffel
bag that also contained the defendant's passport, but where no one was in actual
possession of the duffel bag at the time of the search, multiple people had access to the
room where the bag was found, no fingerprints were found on the duffel bag or pain
reliever bottle, and no one was asked about ownership of the pill bottle).



                                            -6-
someone put marijuana in his bag where the bag was located inside the trunk and the

marijuana was found inside another container that was inside the defendant's bag,

where multiple people had access to the bag, and where the defendant disclaimed

ownership of the container). This is such a case.

              The proximity of Edwards's identification to the purple bag in which the

cocaine was concealed might be consistent with his having knowledge of the cocaine

and dominion and control over it. Yet those facts are equally susceptible to the

reasonable hypothesis that the cocaine was in the possession and control of Simms or

the victim while they were in the vehicle and that Edwards simply threw his wallet into

the gray canvas bag without knowing that the cocaine was inside. See Bennett, 46 So.

3d at 1184. Indeed, there was no evidence presented as to when the cocaine was

placed in the purple bag or when the purple bag was placed inside the gray canvas bag.

See Evans v. State, 32 So. 3d 188, 191 (Fla. 1st DCA 2010) (noting that presence of

the defendant's passport in duffel bag suggests he placed it there, but explaining that

"[s]uch an inference . . . provides no time frame with regard to when the contraband

came to reside in the bag, nor any help as to appellant's present dominion over the

contraband" and, therefore, the "mere presence of the passport" was insufficient to

establish defendant's constructive possession). The lack of a time frame for placement

of the cocaine in either bag, combined with the lack of evidence regarding ownership of

either bag, the lack of fingerprint evidence, and the fact that items belonging to persons

other than Edwards were also located in the gray canvas bag lead us to conclude that

the State's circumstantial evidence failed to prove that Edwards was in constructive




                                           -7-
possession of the cocaine. 2 Accordingly, we hold that the trial court erred by denying

Edwards's motion for judgment of acquittal, and we reverse Edwards's conviction and

sentence for possession of cocaine and remand with instructions to discharge him.

             Reversed and remanded with instructions.



SILBERMAN and BADALAMENTI, JJ., Concur.




             2
               We emphasize that it was the combination of these factors that requires
us to reverse the judgment in this case. We do not intend for this opinion to be
interpreted as requiring reversal whenever drugs are located near a defendant's
personal items that are commingled with personal items belonging to someone else. As
our case law has made clear, a defendant's knowledge and control of contraband may
be inferred where there are incriminating circumstances beyond mere proximity from
which a jury could infer those elements. See Jackson, 995 So. 2d at 539. While this
case does present circumstances that could be interpreted as incriminating, those
circumstances can also be construed as being consistent with Edwards's hypothesis of
innocence.


                                           -8-
