       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                            R.C.R., a Child,
                              Appellant,

                                   v.

                         STATE OF FLORIDA,
                              Appellee.

                            No. 4D13-4627

                           [August 12, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Ronald V. Alvarez, Judge; L.T. Case No. 13CJ002893AMB.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

   Appellant R.C.R., a child, appeals the final disposition order finding
him guilty of possession of cocaine and criminal mischief, adjudicating
him delinquent, and sentencing him to a commitment program and to
post-commitment probation. Appellant challenges the sufficiency of the
evidence to support a finding that he constructively possessed cocaine.
We agree the evidence was insufficient to show actual or constructive
possession under the circumstances and, therefore, reverse.

                              Background

   Appellant was arrested on a charge unrelated to the instant case. When
Appellant was on the ground during the arrest, an officer searched inside
his pockets, removing only a cell phone. During the arrest, Appellant was
uncooperative and kept trying to pull away from the deputy. The deputy
conducted a search of Appellant for weapons, which was primarily a pat-
down search of Appellant’s outer layers of clothing. Appellant then was
placed in the back of a patrol car. Appellant was screaming, kicking, and
thrashing around in the back of the car. Appellant’s thrashing caused
physical damage to the police vehicle. He was placed in handcuffs and a
hobble restraint.

   Appellant then was transported to a hospital to be medically cleared,
which he was, and he next was taken to a juvenile assessment center. The
deputy observed Appellant moving around from side to side or ducking
down during the drive.

   The deputy drove the patrol car back to the station to review the
damage. At the station, the deputy opened the back driver’s side door and
saw a plastic baggie with a white substance in between the seat and the
doorframe. The deputy testified that she did not see it earlier because of
the angle she was standing when she opened the door and because it was
dark outside. The deputy photographed the baggie and then field-tested
the substance in the bag, which tested positive for cocaine. She did not
test it for fingerprints or DNA.

   The deputy never saw Appellant with a baggie of cocaine, but she
testified that the baggie was not there when she checked her vehicle at the
beginning of her shift and Appellant was the only person in her patrol car
that day. No one had been in the back of the car for five days prior. The
deputy testified that the baggie did not belong to her. Appellant testified
he was never in possession of cocaine that night.

    Appellant was charged with possession of cocaine and criminal
mischief. The case proceeded to a bench trial. Testimony was taken as to
the above facts. Appellant moved for judgment of dismissal at the end of
his case as to the charge of possession of cocaine, arguing that the
circumstantial evidence is susceptible to an interpretation that Appellant
is innocent because someone else could have left the baggie in the vehicle
and this reasonable hypothesis was not rebutted. Appellant also argued
that, because the baggie was not in plain view, the State does not get the
benefit of the presumption that Appellant had knowledge of the cocaine in
the vehicle to establish constructive possession. The trial court did not
expressly deny the motion, but it found Appellant guilty as charged. This
appeal followed.

                            Standard of Review

    We review the sufficiency of the evidence for a judgment of dismissal in
delinquency proceedings de novo. F.Q. v. State, 98 So. 3d 783, 784 (Fla.
4th DCA 2012). “If, after viewing the evidence in the light most favorable
to the State, a rational trier of fact could find the existence of the elements
of the crime beyond a reasonable doubt, sufficient evidence exists to

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sustain a conviction.” Id. (quoting Fitzpatrick v. State, 900 So. 2d 495, 507
(Fla. 2005)).

                                 Analysis

   The crime of possession of cocaine requires a showing that (1) the
defendant possessed a substance, (2) that substance was cocaine, and (3)
the defendant had knowledge of the presence of the substance. Meme v.
State, 72 So. 3d 254, 256 (Fla. 4th DCA 2011) (referencing § 893.13(6)(a),
Fla. Stat.). In the instant case, the fact that the substance was cocaine is
not in dispute. The element in dispute is possession, which may be shown
by actual possession or constructive possession. Williams v. State, 154
So. 3d 426, 428 (Fla. 4th DCA 2014).

A. No Evidence of Actual Possession

    “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.” Meme, 72 So. 3d at 256 (internal quotations and
citation omitted) (emphasis in original).

   The State maintains that Appellant had actual possession of the
cocaine. However, there was no testimony that Appellant had the cocaine
in his hands or that the cocaine was found in a container that Appellant
was holding or otherwise on his person. In fact, the deputy said she never
saw Appellant with the cocaine and the baggie was not found when
Appellant’s pockets were searched or when he was patted down, before he
was placed in the patrol car.

   Additionally, the facts do not support that the cocaine was within
Appellant’s “ready reach” and was under his control. Id. Appellant was
handcuffed and hobbled in the back of the patrol car. As such, very little
was in his “ready reach,” and it is unlikely that he could have maneuvered
his handcuffed hands and control an object below the seat in the door
jamb. Even if the cocaine was physically within his reach, it does not
appear to have been in his ready reach where significant maneuvering
would have been required to get to that location. The testimony was only
that the deputy observed Appellant moving side-to-side a couple of times
and once or twice he ducked down a little bit. Cf. id. at 256-57 (finding
“ready reach” where the defendant was driving a car without any physical
restraints and was seen by the officer reaching down to the area where the
contraband was eventually found and no one else in the vehicle had
moved); McCoy v. State, 840 So. 2d 455, 456 (Fla. 4th DCA 2003) (finding

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“ready reach” where the defendant was sitting alone on a front porch and
the contraband was in a cup in arm’s reach of him); State v. Williams, 742
So. 2d 509, 510, 512-13 (Fla. 1st DCA 1999) (finding “ready reach” where
the defendant was driving a vehicle unrestrained and, after he exited the
vehicle, officers found a baggie of cocaine in between the driver’s seatbelt
connector and the center console).

B. No Evidence of Constructive Possession

   In regards to constructive possession, we have explained,

      Constructive possession exists where a defendant does not
      have actual physical possession of contraband but knows of
      its presence on or about his premises and has the ability to
      exercise dominion and control over it. Mere proximity to
      contraband, standing alone, is insufficient to establish
      constructive possession of the substance. The state must
      present independent proof of the defendant’s knowledge and
      ability to control the contraband.

Williams, 154 So. 3d at 428 (citations omitted). When the defendant has
exclusive possession of the area where the contraband is found, “the
defendant’s knowledge of the contraband and ability to maintain control
over it may be presumed” for purposes of constructive possession. Sinclair
v. State, 50 So. 3d 1223, 1225-26 (Fla. 4th DCA 2011). In the possession
context, we have construed the term “exclusive” to mean “vested in one
person alone.” Lee v. State, 835 So. 2d 1177, 1179 (Fla. 4th DCA 2002).

   In the case of jointly-occupied premises, the knowledge and ability to
control elements will not be inferred and must be established by
independent proof. Brown v. State, 428 So. 2d 250, 252 (Fla. 1983).

      Such proof may consist either of evidence establishing that
      the accused had actual knowledge of the presence of the
      contraband, or of evidence of incriminating statements and
      circumstances, other than the mere location of the substance,
      from which a jury might lawfully infer knowledge by the
      accused of the presence of the contraband on the premises.

In re E.H., 579 So. 2d 364, 365 (Fla. 4th DCA 1991) (quoting Murphy v.
State, 511 So. 2d 397, 399 (Fla. 4th DCA 1987)). Additionally, the
knowledge element “may be satisfied where the contraband is found in
plain view in a common area of the premises.” Williams, 154 So. 3d at
429.

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    In our instant case, the first issue is thus whether Appellant had
exclusive control of the area where the contraband was found. The facts
are not in favor of finding exclusive control under our definition. Control
of the backseat of the patrol car was not vested in Appellant alone. Lee,
835 So. 2d at 1179. While the deputy testified that she checked her vehicle
the morning of her shift and the contraband was not there, there is no
testimony as to when the baggie was placed in the car; and, even though
no other arrestees were in the backseat during Appellant’s arrest, multiple
officers had access to the backseat (and specifically the area between the
seat and the door jamb) during the range of potential time that the baggie
could have been placed there. Additionally, the deputy was in control of
her vehicle the entire time, further making Appellant’s control only jointly
held. Therefore, without exclusive control, the elements of knowledge and
control cannot be presumed to find constructive possession. Brown, 428
So. 2d at 252.

    From the evidence presented, there was no independent proof showing
that Appellant ever had knowledge of the presence of the contraband. See
In re E.H., 579 So. 2d at 365. There was no testimony that Appellant ever
possessed any cocaine or that he had seen the baggie in the door jamb or
that his statements otherwise indicated that he knew of its presence. To
the contrary, the deputy testified that she never saw Appellant with any
contraband, and Appellant testified that he was never in possession of
cocaine, nor did he see any cocaine that night.

    Nor do the testimony and the photographic evidence support that the
contraband was in plain view to establish knowledge in that sense. The
photograph of the baggie of cocaine admitted into evidence showed that
the baggie was found between the end of the backseat and the door,
making it only visible when the door was open. The deputy testified that
it could only be seen with the door open from certain angles, as she missed
it when she previously had opened the door for Appellant at the hospital
and then again at the detention center. Additionally, as in Culver v. State,
990 So. 2d 1206, 1209–10 (Fla. 2d DCA 2008), “the State did not present
any fingerprint evidence, admissions, eyewitness testimony, or other
evidence tending to establish . . . dominion and control.” Accordingly,
constructive possession was not established.

                               Conclusion

   Because the State did not present evidence to show Appellant’s actual
or constructive possession of cocaine, the State failed to present a prima
facie case to overcome a judgment of dismissal. Because the trial court

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erred in denying the motion for judgment of dismissal, we reverse and
remand for resentencing on the charge of criminal mischief alone.

   Reversed.

CIKLIN, C.J., and KLINGENSMITH, J., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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