           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.
                  _____________________________


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.
     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.




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