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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



K.T.B.,                                      )
                                             )
             Appellant,                      )
                                             )
v.                                           )          Case No. 2D19-59
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed November 22, 2019.

Appeal from the Circuit Court for
Pinellas County; Kathleen Hessinger,
Judge.

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

Ashley Moody, Attorney General,
Tallahassee, and Lara E. Breslow,
Assistant Attorney General, Tampa,
for Appellee.


LUCAS, Judge.

             A juvenile we will refer to as K.T.B. appeals the circuit court's order

adjudicating him delinquent and placing him on probation for one count of possession of

a controlled substance in violation of section 893.13(6)(a), Florida Statutes (2018). On

appeal, he argues that the circuit court erred when it admitted his statement of
confession without establishing the corpus delicti of the crime. In its answer brief, the

State concedes error based upon its reading of our court's decision in N.G.S. v. State,

272 So. 3d 830 (Fla. 2d DCA 2019). However, it appears to us that K.T.B. and the

State have misconstrued N.G.S.'s holding. We therefore reject the State's concession

of error and affirm the circuit court's order for the reasons we explain below.

              An officer of the Saint Petersburg Police Department was on patrol when

he observed K.T.B. riding a bicycle at night without front or rear lights. The officer

attempted to initiate a traffic stop. K.T.B. fled, eventually abandoned his bike, and ran

between several houses. The officer ultimately caught up to K.T.B. and took him into

custody for obstructing an officer. After reading K.T.B. his Miranda1 warnings and

placing him in a police vehicle, the officer asked K.T.B. why he had run. K.T.B. initially

stated that "he was scared" but later confessed that he ran because he had "crumbs" or

"clumps" on his person, which the officer interpreted as referring to cocaine.

              When the officer searched the area between the houses where K.T.B. had

been running, he found a small baggie containing a substance that was later identified

as cocaine. The baggie was directly on the path of K.T.B.'s flight; however, the officer

admitted that he did not see K.T.B. possess the baggie at any time, nor did he see

K.T.B. "get rid of" any contraband at any point during their interactions. K.T.B. was

charged by delinquency petition with one count of possession of a controlled substance

and one count of obstructing or resisting an officer without violence. After an

adjudicatory hearing, the court found that K.T.B. committed a delinquent act, withheld

adjudication, and placed him on six months of juvenile probation. K.T.B. now appeals



              1Miranda   v. Arizona, 384 U.S. 436 (1966).


                                            -2-
the order, arguing that the State failed to establish a corpus delicti of an offense under

section 893.13(6)(a).2

              "It is a longstanding tenet of common law that a defendant's confession is

inadmissible to prove his guilt unless the State separately proves the corpus delicti, i.e.,

the 'body of the crime.' " J.J.J. v. State, 235 So. 3d 1014, 1017 (Fla. 2d DCA 2017)

(quoting Shelden v. State, 38 So. 3d 214, 216 (Fla. 2d DCA 2010)). In order for a

defendant's confession to be admissible, "the State must establish '(1) that a crime of

the type charged was committed; and (2) that the crime was committed through the

criminal agency of another.' " N.G.S., 272 So. 3d at 832 (quoting Franqui v. State, 699

So. 2d 1312, 1317 (Fla. 1997)).

              As K.T.B. points out, under section 893.13(6)(a) the State would need to

prove that K.T.B. actually or constructively possessed the contraband in question. Id. at

835. "To prove constructive possession, 'the [S]tate must show that a defendant had

knowledge of the contraband's presence and the ability to exercise dominion and

control over it.' " McCray v. State, 256 So. 3d 878, 881 (Fla. 4th DCA 2018) (quoting

Duncan v. State, 986 So. 2d 653, 655 (Fla. 4th DCA 2008)) (reversing conviction and

remanding for entry of judgment of acquittal). This court has long held—for purposes of

a motion for judgment of acquittal—that evidence of a defendant's flight, even when

coupled with the location and proximity of contraband along the flight path, without

more, is insufficient to prove constructive possession. See, e.g., Davis v. State, 761 So.

2d 1154, 1158-59 (Fla. 2d DCA 2000); see also Agee v. State, 522 So. 2d 1044, 1046



              2K.T.B.'s appeal raises no issue concerning the separate withhold of
adjudication of obstructing or resisting an officer without violence under section 843.02,
Fla. Stat. (2018). It appears he has abandoned that argument in this appeal.


                                            -3-
(Fla. 2d DCA 1988) (holding that defendant's proximity to heroin and his flight from

police constituted insufficient circumstantial evidence to establish constructive

possession of heroin).

              K.T.B. would take these judgment of acquittal decisions one step further.

According to K.T.B., without his confession, there would not have been legally sufficient

proof of K.T.B.'s possession of the cocaine to withstand a motion for judgment of

acquittal; therefore, he concludes, the State failed to establish a corpus delicti of this

crime, and his confession should have been excluded. Or, as K.T.B. puts it: "There was

no proof of actual or constructive possession without his statement. Therefore, the

statement was inadmissible under the doctrine of corpus delicti." We think K.T.B.'s

argument goes a step too far.

              Whether a corpus delicti has been established is a different inquiry from

whether the evidence adduced would legally withstand a motion for judgment of

acquittal. The former is a rule of evidentiary admission; the latter is one of evidentiary

consideration. A motion for judgment of acquittal tests whether the State has "prove[n]

every element of an offense." Poczatek v. State, 213 So. 3d 1065, 1071 (Fla. 2d DCA

2017). Identity of the defendant is often an issue in motions for judgment of acquittal

because the State must show that the defendant on trial was indeed the party

responsible for the criminal offense that is being prosecuted. See Akridge v. State, 970

So. 2d 917, 918 (Fla. 2d DCA 2007) ("The burden is upon the State to prove beyond a

reasonable doubt all of the elements of the alleged crime including the identity of the

defendant." (citing State v. Freeman, 380 So. 2d 1288 (Fla. 1980))). Corpus delicti, on

the other hand, generally asks the broader question whether there was some evidence,




                                             -4-
apart from a confession, that a crime had been committed. Cf. S.H. v. State, 264 So. 3d

1042, 1045-46 (Fla. 3d DCA 2019) (stating corpus delicti rule "is a common law,

judicially created, rule of evidence, the purpose of which is to ensure that a person will

not be convicted based solely on his own false confession to a crime that never

occurred" (quoting Gonzales v. State, No. AP75540, 2009 WL 1684699, at *7 (Tex.

Crim. App. June 17, 2009) (Cochran, J., concurring))). With limited exceptions, to

establish a corpus delicti the State need only show that a crime has been committed,

not that the defendant committed that particular crime. See State v. Allen, 335 So. 2d

823, 825 (Fla. 1976) ("We also reject the implication . . . that identification of the

defendant as the guilty party is a necessary predicate for the admission of a

confession.").

              We explained the extent of the limited exceptions in N.G.S., where we

stated, "The corpus delicti rule does not require that the State prove the identity of the

person who committed the crime, except in those uncommon circumstances where

proof of identity is necessary to show that a crime was committed at all." 272 So. 3d at

832 (emphasis added). Ultimately, N.G.S. concluded that the offense of a delinquent

carrying a concealed weapon under section 790.23(1), Florida Statutes (2016), was one

such "uncommon circumstance" because identifying the accused's status as a juvenile

delinquent was a requisite element of that criminal offense. Id. at 833-34; see also A.P.

v. State, 250 So. 3d 799, 802 (Fla. 2d DCA 2018) (observing that occasionally "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' " (quoting Spanish v. State, 45 So. 2d 753, 754 (Fla. 1950))).




                                             -5-
             That is plainly not the case here. Section 893.13(6)(a)'s proscriptions do

not depend on the identity of the defendant at all. It was illegal for anyone to possess

the baggie of cocaine that was found on the ground near where K.T.B. was taken into

custody. As such, this contraband's presence in the proximity of K.T.B.'s flight and

arrest established a sufficient corpus delicti of the possession offense with which he

was subsequently charged. See State v. Wallace, 734 So. 2d 1126, 1129 (Fla. 3d DCA

1999) ("In this case, the mere presence of the contraband in the closet established that

a crime had been committed and that someone was criminally liable."). K.T.B.'s

confession was properly admitted, and the circuit court correctly denied his motion for

judgment of dismissal.

             Affirmed.


SILBERMAN and BLACK, JJ., Concur.




                                           -6-
