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


                                         IN THE DISTRICT COURT OF APPEAL
                                         OF FLORIDA
                                         SECOND DISTRICT



A.P.,                            )
                                 )
           Appellant,            )
                                 )
v.                               )                   Case No.    2D16-979
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed June 29, 2018.

Appeal from the Circuit Court for
Hillsborough County; Barbara Twine
Thomas, Judge.

Howard L. Dimmig, II, Public Defender,
and Matthew Overpeck, Assistant Public
Defender, Bartow for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Peter Koclanes,
Assistant Attorney General, Tampa,
for Appellee.


KELLY, Judge.

             A.P. appeals from the order finding him guilty of minor in possession of a

firearm and felon in possession of a firearm but declining to adjudicate him delinquent.

While he raises several issues in this appeal, we need not address each one because
we agree with A.P. that the State failed to prove the corpus delicti of the crimes charged

and therefore should not have been allowed to introduce his admission into evidence.

              The evidence at trial showed that A.P. was driving a car in which his two

brothers were passengers when police officers conducted a traffic stop because they

believed they smelled marijuana coming from the car. Once the car was stopped, an

officer approached A.P., told him why they had stopped the car, and then handcuffed

A.P. and placed him in the back seat of his patrol car. A second officer searched the

passengers and the car and found a marijuana blunt on one passenger and a holstered

firearm under the floor mat of the front passenger seat. Over objection, one of the

officers testified that when A.P. learned the officers had found a firearm in the car, A.P.

stated it belonged to him. Based on his admission, the officers arrested A.P. on the

firearm charges and released his brothers.

              At trial, A.P. objected on corpus delicti grounds when the State sought to

introduce his admission into evidence. The trial court overruled the objection. At the

close of the State's case and at the conclusion of the trial, A.P. moved for a judgment of

dismissal again arguing that the State had failed to establish the corpus delicti of the

crimes absent his admission. Specifically, A.P. argued that absent his admission, the

State had failed to present prima facie evidence that he actually or constructively

possessed the gun. He cited to this court's decision in Ras v. State, 610 So. 2d 24 (Fla.

2d DCA 1992), in support of his argument; however, the trial court rejected A.P.'s

argument stating that Ras had "no relevance" and that it was "inapplicable," that his

arguments regarding constructive possession had "no applicability" and were "not




                                            -2-
germane," and that it was "absolutely" possible to find A.P. guilty based on his

admission. The trial court was wrong.

             Florida adheres to the traditional rule of corpus delicti. See, e.g., J.B. v.

State, 705 So. 2d 1376, 1378 (Fla. 1998); Burks v. State, 613 So. 2d 441, 443 (Fla.

1993); see also State v. Carwise, 846 So. 2d 1145, 1146 (Fla. 2003) (Cantero, J.,

dissenting). The rule provides that before an admission may be allowed into evidence,

the State has the burden of offering direct or circumstantial evidence independent of the

admission that establishes the corpus delicti of the crime charged. State v. Allen, 335

So. 2d 823, 825 (Fla. 1976) ("A person's confession to a crime is not sufficient evidence

of a criminal act where no independent direct or circumstantial evidence exists to

substantiate the occurrence of a crime."). The State must "bring forth 'substantial

evidence' tending to show the commission of the charged crime. This standard does

not require the proof to be uncontradicted or overwhelming, but it must at least show the

existence of each element of the crime." Id. (footnote omitted) (quoting Tucker v. State,

59 So. 941, 941 (Fla. 1912)).

             A.P. was charged with violating section 790.22(3), Florida Statutes (2015),

which makes it a crime for a minor to possess a firearm except under certain

enumerated circumstances and section 790.23(1)(b), which makes it a crime for "any

person to own or to have in his or her care, custody" a firearm if they have been found

"to have committed a delinquent act that would be a felony if committed by an adult and

such person is under 24 years of age." To establish the corpus delicti—that is to show

that the charged crimes occurred—the State would have to show that a firearm was

possessed by an individual who is prohibited by the statute from possessing it. A.P.




                                           -3-
argues, and we agree, that without his statement, the State's evidence did not prove he

possessed the gun, and without that, there was no proof a crime occurred.

              This court's decision in Ras is instructive. There, Ras was convicted of

trafficking by possession. 610 So 2d at 25. This court reversed his conviction because

the sole evidence supporting the element of possession was his statement that he was

aware of the presence of the cocaine:

              In order to support the conviction for trafficking by
              possession, the evidence must show that Ras possessed
              the cocaine, either actually or constructively.

                      The evidence reflects that Griswold, not Ras, had
              actual possession of the cocaine. To prove constructive
              possession, the state was required to prove that Ras knew
              of the presence of the cocaine and had the ability to maintain
              control over it or reduce it to his physical possession. Ras
              certainly knew of the presence of the cocaine, so this case
              turns on whether he had dominion or control over the
              cocaine. Because Ras did not have exclusive control of the
              area, it may not be inferred that he had control of the
              cocaine without other incriminating statements or
              circumstances which tend to support that inference. The trial
              court relied on Ras's post-arrest statement that they
              intended to take the cocaine to the buyer in Sarasota in
              order to show that Ras at least constructively possessed the
              cocaine. That admission, however, cannot be the sole
              evidence to support the element of possession; the state
              was required to present prima facie evidence establishing all
              elements of trafficking by possession independent of Ras's
              statement. The state offered no prima facie evidence to
              show that Ras possessed the cocaine.

Id. at 25 (citations omitted).

              Similarly, to prove constructive possession of a firearm the State must

produce evidence establishing that "the defendant had knowledge of the presence of

the gun and the ability to exercise control over it." Creamer v. State, 605 So. 2d 541,

542 (Fla. 1st DCA 1992) (quoting Wilcox v. State, 522 So. 2d 1062, 1064 (Fla. 3d DCA



                                           -4-
1988)). In a car that is jointly occupied, knowledge and the ability to control the firearm

may not be inferred but must be established by independent proof. See K.A.K. v. State,

885 So. 2d 405, 407 (Fla. 2d DCA 2004). That proof can consist of incriminating

statements or circumstances which tend to support the inference. Ras, 610 So. 2d at

25.

               The evidence here showed that A.P. and two passengers were together in

the car, and A.P. was driving. The gun was hidden from sight under the floor mat of the

front passenger seat. We have repeatedly held that mere proximity to contraband in a

jointly occupied car is not sufficient to sustain a conviction based on constructive

possession. See K.A.K, 885 So. 2d at 407-08. Thus, the only independent proof

remaining to support any of the inferences necessary to establish constructive

possession is A.P.'s admission. This brings us full circle to Ras, which, as stated

above, teaches us that this will not do. See Ras, 610 So. 2d at 25; see also Harrison v.

State, 483 So. 2d 757, 758 (Fla. 2d DCA 1986) (holding that the corpus delicti doctrine

prohibited the appellant's conviction for possession of a firearm where there was no

proof of actual or constructive possession of the firearm apart from the appellant's

confession).

               We also note that although corpus delicti typically does not require proof

of the identity of the guilty party before a defendant's statement can be admitted,

sometimes the identity of the guilty party and the proof that a crime occurred "are so

intimately connected that the proof of the corpus delicti and the guilty agency are shown

at the same time." Spanish v. State, 45 So. 2d 753, 754 (Fla. 1950). That was the case

in State v. Allen, 335 So. 2d 823. There, Allen was charged with two counts of




                                            -5-
manslaughter, one by culpable negligence and one under a statute relating to driving

while intoxicated. The State alleged that Allen was the driver. Allen argued that his

confession should not have been admitted until the State proved he was driving the car

because if the victim had been the driver, there would have been no crime. Id. at 825-

26. Because the State offered circumstantial proof that put Allen behind the wheel of

the car, the court found that his confession was admissible. Id. Similarly, in this case,

absent proof that A.P. possessed the gun, the evidence offered by the State does not

establish that any crime occurred. Cf. State v. Walton, 42 So. 3d 902, 906-07 (Fla. 2d

DCA 2010) (explaining that in a DUI case the defendant's identity as the driver may

become a necessary part of the corpus delicti where, absent proof that the defendant

was the driver, the evidence does not establish a crime occurred).

              The State argues that we should reject the traditional corpus delicti rule in

favor of the corroboration rule applied in federal courts. We acknowledge that the

traditional doctrine of corpus delicti seems ill suited to crimes such as the ones charged

here. See United States v. Shunk, 881 F.2d 917, 920 (10th Cir. 1989) (holding that

corpus delicti was not relevant in a prosecution for felon in possession of a firearm

because in such crimes there is no tangible injury or loss and the crime cannot be found

to have been committed without reference to a specific defendant). However, we are

not free to ignore the fact that the Florida Supreme Court has rejected that option on

more than one occasion, although not as to these specific crimes. See J.B., 705 So. 2d

at 1378; Burks, 613 So. 2d at 442.

              A.P.'s admission should not have been allowed into evidence. Without his

admission, the State's evidence was insufficient to prove that A.P. possessed the gun.




                                           -6-
Accordingly, we reverse the order finding him guilty and remand for entry of an order

granting his motion for judgment of dismissal.

             Reversed and remanded with directions.


BLACK and SALARIO, JJ., Concur.




                                          -7-
