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


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT



MARCUS FRANKLIN SANDERS,                     )
DOC# 788118                                  )
                                             )
             Appellant,                      )
                                             )
v.                                           )        Case No. 2D15-2360
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed February 8, 2017.

Appeal from the Circuit Court for Lee
County; Margaret O. Steinbeck, Judge.

Rachael E. Bushey of O'Brien Hatfield,
P.A., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Dawn S. Tiffin, Assistant
Attorney General, Tampa, for Appellee.




BLACK, Judge.

             Marcus Sanders challenges his conviction and sentence for trafficking in

over 200 grams of methamphetamine. Sanders raises several issues on appeal, only

one of which has merit. Because the State failed to present sufficient evidence to
establish that Sanders was in constructive or actual possession of contraband, the

motion for judgment of acquittal should have been granted. Therefore, we reverse.

   I.     Background

              On March 28, 2014, Detective Torres was working with a surveillance

team watching a residence that was under suspicion for drug-related activity. Detective

Torres observed a man and woman come out of the residence and approach a van

parked in the driveway. From her vantage point at least 200 feet from the residence,

Detective Torres was only able to determine that the man was white and that he was

carrying a bag over his left shoulder. The woman entered the van on the driver's side.

The man entered the van through the rear sliding door on the passenger's side;

Detective Torres was unable to see if the man sat in the front or rear of the van after

entering. As the van pulled away from the residence, Detective Torres communicated

to area units what she had observed, including the van's direction of travel.

              Detective Tarsia responded and began to follow the van. He noted that

the window tint was very dark and that as a result of the dark tint, he could not see any

movement within the van. Detective Tarsia initiated a traffic stop due to the dark

window tint and upon observing the van fail to stop at a stop sign. As Detective Tarsia

approached the driver's side of the van, he observed five people inside: a woman in the

driver's seat, a white man in the front passenger's seat, a white man in the back seat on

the passenger's side, a child in the middle of the back seat, and a woman in the back

seat behind the driver. Detective Tarsia identified Sanders as the white man seated in

the back seat on the passenger's side. Detective Tarsia testified that Sanders was

acting "unusual" in that he avoided eye contact with the detective. He also observed




                                           -2-
two unzipped bags between Sanders' feet that looked like "cooler type bags" or duffle

bags.

             Detective Tarsia issued the driver two traffic warnings and then asked the

driver for consent to search the van. The driver consented to the search, and the

occupants were asked to exit the vehicle; the bags remained inside. While conducting

the search, Detective Tarsia observed a plastic bottle containing "a lot of substance

down at the bottom with some liquid," a hair dryer, liquid Drano, and salt inside one of

the bags. Based on Detective Tarsia's training and experience, he believed that the

contents of the bag were used in the manufacture of methamphetamine. Detective

Tarsia arrested Sanders and searched his person; nothing of evidentiary value was

found as a result of the search.

             Detective Gonzalez arrived at the scene and took custody of the bag. The

substance in the plastic bottle tested positive for the presence of methamphetamine. A

sample of the liquid that was seized was submitted to the Florida Department of Law

Enforcement (FDLE) for testing, and an FDLE laboratory analyst confirmed that the

liquid contained methamphetamine.

             At trial, after the State rested its case, Sanders moved for a judgment of

acquittal. Sanders argued that the State had failed to establish that he had been in

actual or constructive possession of the bag containing methamphetamine. The State

argued that Sanders had been in actual possession of the bag because it was within his

arm's reach and under his exclusive control. In the alternative, the State asserted that

Sanders had been in constructive possession of the bag. The court denied the motion,

finding that the State presented a prima facie case of actual possession due to the




                                           -3-
location of the bag and Sanders' unusual behavior. Sanders renewed his motion for

judgment of acquittal at the close of the evidence, and it was again denied. The jury

found Sanders guilty as charged.

   II.    Discussion

              "All possession crimes may be either actual or constructive." Sundin v.

State, 27 So. 3d 675, 676 (Fla. 2d DCA 2009) (citing Chicone v. State, 684 So. 2d 736,

738 n.2 (Fla. 1996)). "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 Harris v. State, 954 So. 2d 1260, 1262 (Fla. 5th DCA 2007)). To

establish constructive possession, the State must "prove beyond a reasonable doubt

that the defendant knew of the presence of the illegal items [and] was able to exercise

dominion and control over them." Hargrove v. State, 928 So. 2d 1254, 1256 (Fla. 2d

DCA 2006) (quoting K.A.K. v. State, 885 So. 2d 405, 407 (Fla. 2d DCA 2004)). "Under

either theory of possession, then, 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." G.G. v. State, 84 So. 3d 1162, 1164

(Fla. 2d DCA 2012) (citation omitted); accord Meme v. State, 72 So. 3d 254, 256 (Fla.

4th DCA 2011).

              The State's evidence established only that the contraband was within

Sanders' ready reach not that it was under his control. The State was unable to

establish that Sanders was the white man observed carrying a bag into the van.

Additionally, there were two open duffle bags between Sanders' feet, and there was no




                                           -4-
evidence establishing that the bag found to contain contraband was the same bag that

the man—even had it been Sanders—brought into the van.

             In short, the only evidence presented by the State to establish possession

was Sanders' close proximity to the bag containing contraband and his "unusual"

behavior. This court has repeatedly held that such evidence is insufficient. See Smith

v. State, 123 So. 3d 656, 658 (Fla. 2d DCA 2013); Rangel v. State, 110 So. 3d 41, 44

(Fla. 2d DCA 2013); Jiles v. State, 984 So. 2d 622, 623 (Fla. 2d DCA 2008); Hargrove,

928 So. 2d at 1256; Cruz v. State, 744 So. 2d 568, 569 (Fla. 2d DCA 1999); E.A.M. v.

State, 684 So. 2d 283, 284 (Fla. 2d DCA 1996); Skelton v. State, 609 So. 2d 716, 717

(Fla. 2d DCA 1992).

             Because the State failed to present sufficient proof of possession, the trial

court erred in denying Sanders' motion for judgment of acquittal. We therefore reverse

Sanders' judgment and sentence and remand for discharge.

             Reversed and remanded with directions.



WALLACE and LaROSE, JJ., Concur.




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