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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



DEMETRIUS NUGENT, DOC #Y62721,               )
                                             )
             Appellant,                      )
                                             )
v.                                           )
                                             )         Case No. 2D17-3169
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed June 7, 2019.

Appeal from the Circuit Court for Lee
County; Bruce E. Kyle, Judge.

Thomas Regnier of Thomas Regnier
Appeals, P.A., Sunrise, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and C. Todd Chapman,
Assistant Attorney General, Tampa, for
Appellee.


SLEET, Judge.

             Demetrius Nugent appeals his convictions and sentences for trafficking in

oxycodone, possession of a controlled substance (Alprazolam), and possession of drug

paraphernalia following a jury trial. Because the State failed to prove Nugent's

constructive possession of any of the contraband, we reverse.
              At trial, the State's evidence reflected that on May 31, 2016, the Lee

County Sheriff's Office conducted a drug investigation focused on a red Mustang that

officers had observed driving back and forth in a residential neighborhood. Detectives

followed the Mustang to a convenience store where they observed a passenger exit the

Mustang and stand on the store sidewalk. Moments later, Nugent, driving a dark

Nissan, arrived and parked in front of the store. The Mustang's passenger entered the

Nissan for a few minutes before going into the convenience store. When the passenger

exited the store, police observed an unidentified object in his hand as he reentered the

passenger side of the Nissan.

              A detective followed the Nissan away from the store and conducted a

traffic stop after observing the car fail to completely stop at a stop sign. Nugent handed

the officer a rental agreement, which reflected that the car had been rented by Nugent's

girlfriend. A few minutes later, a K-9 officer arrived and conducted an exterior sniff of

the vehicle. The dog alerted to the driver's door.

              Both Nugent and the passenger complied with the detective's request to

exit the vehicle while two additional detectives conducted a search. During the search,

the detectives discovered a white pill bottle labeled oxycodone lying sideways in the

bottom of the driver's door pocket beside a half-filled bottle of water. A search of the

center console revealed some cash and a man's watch on top of a baggie of white pills.

Underneath the watch, cash, and pills was paperwork belonging to Nugent. The

detectives also found an envelope addressed to Nugent in the glove compartment.

Prior to his arrest, Nugent's girlfriend arrived at the scene and confirmed that she had

rented the vehicle.




                                            -2-
              The detectives testified that they never saw Nugent make any furtive

movements or reach toward the center console or driver's door pocket. While they

believed that the water bottle belonged to Nugent, they admitted that the only evidence

connecting it to Nugent was the fact that it was cold and had condensation on it.

Although there was no evidence that the passenger purchased the bottle of water at the

store, the detectives suspected that he had given the bottle to Nugent. They admitted

that they did not request any video surveillance from the store cameras to confirm what

the passenger had purchased because the store employees "were not friendly with law

enforcement." Nugent did not make any incriminating statements, and the State did not

call the passenger to testify. The State did not produce any fingerprints or any DNA

evidence to connect Nugent to either the pill bottle or the baggie of pills. Nor did the

State introduce the car rental agreement or call Nugent's girlfriend to testify as to how

long and how often Nugent had used the rental car.

              After the State rested, Nugent moved for a judgment of acquittal, arguing

that the State failed to establish that Nugent was in constructive possession of the pill

bottle and baggie of pills and that mere proximity to the drugs was insufficient to

establish constructive possession in a jointly occupied vehicle. The State responded

that it had proven actual possession of the drugs in the driver's door pocket because

they were in plain view beside Nugent's water bottle and within Nugent's ready reach.

As to the drugs in the center console, the State argued it had proven constructive

possession because the watch, cash, and baggie of pills were in the same compartment

with the paperwork belonging to Nugent. The trial court denied the motion for judgment

of acquittal. This was error.




                                            -3-
             This court reviews the denial of a motion for judgment of acquittal de novo,

viewing the evidence in the light most favorable to the State. Gizaw v. State, 71 So. 3d

214, 217 (Fla. 2d DCA 2011). The State may prove possession as either actual or

constructive. Sanders v. State, 210 So. 3d 246, 248 (Fla. 2d DCA 2017). "Possession

is actual when the contraband is (1) in the defendant's hand or on his person, (2) in a

container in the defendant's hand or on his person, or (3) within the defendant's 'ready

reach' and the contraband is under his control." Id. (quoting Sundin v. State, 27 So. 3d

675, 676 (Fla. 2d DCA 2009)). To support a conviction based on a theory of

constructive possession, the State must "prove beyond a reasonable doubt (1) that [the

defendant] had knowledge of the contraband and (2) that [the defendant] had the ability

to exercise dominion and control over the contraband." Tucker v. State, 198 So. 3d

1011, 1014 (Fla. 2d DCA 2016). "Under either theory of possession . . . the State must

prove that the accused had control of the contraband. And . . . under either theory the

requisite control is not established by an accused's mere proximity to the contraband."

Sanders, 210 So. 3d at 248 (quoting G.G. v. State, 84 So. 3d 1162, 1164 (Fla. 2d DCA

2012)). Here, the State proceeded on a theory of constructive possession; however, it

failed to prove Nugent had dominion and control of the drugs found in the vehicle or to

refute his reasonable hypothesis of innocence.

             The State's evidence showed that Nugent was traveling in a jointly

occupied rental vehicle and that the drugs were recovered from areas of the vehicle

within his "ready reach." Because the rental car was in joint possession rather than

Nugent's exclusive possession, knowledge and ability to maintain dominion and control

could not be inferred from Nugent's mere proximity to the contraband. See Byers v.

State, 17 So. 3d 825, 827 (Fla. 2d DCA 2009) ("[W]hen the premises have not been in

                                           -4-
the exclusive possession of the defendant, . . . knowledge and control cannot be

inferred unless there are incriminating statements or other circumstances that would

support such an inference."). When knowledge or dominion and control cannot be

inferred, the State must prove each element by independent evidence; "[g]enerally,

such independent proof can be established by the admission into evidence of a pretrial

statement made by the accused, by witness testimony, or by scientific evidence."

Bennett v. State, 46 So. 3d 1181, 1184 (Fla. 2d DCA 2010); see also Culver v. State,

990 So. 2d 1206, 1209 (Fla. 2d DCA 2008) ("Such independent proof might have

consisted of evidence that [the defendant] had actual knowledge of the presence of the

contraband and the ability to control it or evidence of incriminating statements or

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

infer [the defendant]'s knowledge and control."); 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.' " (quoting Reynolds v. State, 111 So. 285, 286

(Fla. 1926))).

                 In this case, there was no independent proof connecting Nugent to the

drugs found in either compartment of the vehicle. The State did not submit scientific

evidence, such as Nugent's fingerprints or DNA on the contraband; eyewitness

testimony from the passenger; or inculpatory statements from Nugent. Even if we

accept the State's argument that the pill bottle containing oxycodone—which was found

inside the driver's side door pocket—was in plain view, this evidence is only sufficient to

prove Nugent's knowledge of the pill bottle, not his dominion and control over it. See

Smith v. State, 123 So. 3d 656, 658 (Fla. 2d DCA 2013) ("[T]he location of contraband

                                             -5-
in plain view of the defendant is sufficient to establish the knowledge element of

constructive possession." (alteration in original) (quoting Jiles v. State, 984 So. 2d 622,

623 (Fla. 2d DCA 2008))); Martoral v. State, 946 So. 2d 1240, 1243 (Fla. 4th DCA 2007)

("In the case law, the concepts of 'dominion' and 'control' involve more than the mere

ability of the defendant to reach out and touch the item of contraband.").

                At trial the State relied on the presence of Nugent's personal papers in the

center console and the chilled water bottle in the driver's side door pocket to establish

his constructive possession of the contraband found in each location. Even if we were

to agree with the State's position that it provided sufficient evidence to show that the

water bottle actually belonged to Nugent, the presence of some of a defendant's

personal items in the same area as contraband merely supports an inference that the

defendant had knowledge of and dominion and control over the substance. See

Bennett, 46 So. 3d at 1184–85. Because the evidence in this case was entirely

circumstantial, the State was required to produce evidence inconsistent with Nugent's

reasonable hypothesis of innocence. See Knight v. State, 186 So. 3d 1005, 1009 (Fla.

2016) ("[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." (second alteration in

original) (quoting Jaramillo v. State, 417 So. 2d 257, 257 (Fla. 1982))). It failed to do so

in this case.

                Nugent's defense theory at trial was that he or someone else had placed

his papers in the console before the contraband was thrown in on top and that he was

not aware of the pill bottle in the door when he borrowed the vehicle. This hypothesis

was consistent with evidence that the contraband in the console had been placed on top

                                             -6-
of the papers along with the watch and the money and evidence that the pill bottle was

at least partially concealed by the design of the vehicle door. None of the State's

evidence was inconsistent with the theory that the passenger or another prior occupant

placed the items on top of Nugent's personal papers in the console or that the pill bottle

was already in the vehicle when Nugent sat down. See K.A.K. v. State, 885 So. 2d 405,

407 (Fla. 2d DCA 2004) (holding that the State failed to disprove the defendant's

reasonable hypothesis of innocence that any of the other occupants of the vehicle could

have placed the contraband in the glove compartment when "[n]o evidence or

permissible inference presented at the adjudicatory hearing pointed to [the defendant]

as the one who put the items there"); see also Williams v. State, 110 So. 3d 59, 61 (Fla.

2d DCA 2013) (reversing conviction for possession when "[a]lthough the car was rented

in [the defendant's] name, she was driving it, and her personal belongings were in the

car, there was nothing on or in the black bag that tied it or the items inside it to her or

anyone else"); Bennett, 46 So. 3d at 1185 (concluding that the State failed to prove

dominion and control when drugs were found in a box that also contained the

defendant's clothes and a personal letter when the box was in a shared residence);

Evans v. State, 32 So. 3d 188, 191 (Fla. 1st DCA 2010) (reversing conviction for

possession when the evidence showed that the contraband was recovered from a jointly

occupied home in a duffel bag that also contained defendant's passport and explaining

that "[t]he presence of [the defendant's] passport in the duffel bag suggests he could

have placed the passport there. Such an inference, however, provides no time frame

with regard to when the contraband came to reside in the bag, nor any help as to [the

defendant's] present dominion over the contraband").




                                             -7-
             Because the State failed to provide independent proof that Nugent

constructively possessed the contraband discovered in the vehicle or any evidence

inconsistent with his reasonable hypothesis of innocence, the trial court erred in denying

the motion for judgment of acquittal. Accordingly, we reverse his convictions and

sentences and direct the trial court to discharge him on these three offenses.

             Reversed and remanded with directions.


BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                           -8-
