           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D17-1894
                  _____________________________

S. S., a child,

     Appellant,

     v.

STATE OF FLORIDA,

     Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Robert E. Long, Judge.

                          May 17, 2018


PER CURIAM.

    AFFIRMED. See Brown v. State, 428 So. 2d 250, 252 (Fla. 1983);
Bradshaw v. State, 509 So. 2d 1306 (Fla. 1st DCA 1987).

LEWIS and OSTERHAUS, JJ., concur; MAKAR, J., concurs with
opinion.
               _____________________________

     Not final until disposition of any timely and
     authorized motion under Fla. R. App. P. 9.330 or
     9.331.
                _____________________________
MAKAR, J., concurring.

      The biblical injunction to flee from, and not keep company
with, bad influences applies to college dormitories, where the close
proximity of ne’er-do-well roommates and after-hours verboten
jollities meld, raising the question: who possessed the marijuana
and mason jar on the anteroom table in the downstairs “common
area” in a compact four-bedroom townhouse located in Edith
McCollum Hall 1 on the Florida State University campus at 4:10
a.m. on October 23, 2016?

     When FSU Officer Cherry Martina responded to a complaint
from dorm staff of loud music and marijuana fumes wafting from
the townhouse (staff had intervened earlier, but their requests to
tone it down were ignored), she immediately smelled the pungent
aroma in the hallway leading to the townhouse. It grew much
stronger when a resident of the townhouse opened the downstairs
entry door. Just inside, the officer saw a table, couch, chairs, and
video screen in the “common area,” which was strewn with beer
bottles, beer cans, marijuana “shake” in a mason jar, 2 cigarette
wrapper casings (from which tobacco had been removed), and a
bottle cut and shaped into a smoking apparatus. 3 Five young

    1      See       McCollum       Hall,       HOUSING.FSU.EDU,
https://housing.fsu.edu/_commonContent/residence-
halls/mccollum-hall.html (last visited Mar. 26, 2018) (“Edith
McCollum served as the Director of Housing at the Florida State
College for Women/Florida State University from 1941-1970.
McCollum Hall was completed and occupied before receiving its
name, simply known as ‘Hall X’ until given its namesake.”).

    2        See        Shake,        URBAN           DICTIONARY,
https://www.urbandictionary.com/define.php?term=shake        (last
visited Mar. 23, 2018) (defining “shake” as “[t]he cruddy end bits
of a large bag of weed” or “loose marijuana in the bottom of any
bag”). The mason jar had so few remnants that the defense
asserted they could not find any, but the prosecutor was able to
locate some.

    3 The apparatus was not retained as evidence. A “grinder” was
also present, but it was never in S.S.’s presence in the common
                                 2
men—four playing videogames and all appearing to be “under the
influence” of drugs or alcohol—were present in the “common area,”
each disclaiming use or ownership of the contraband (one had a
“grinder” in his pocket, which he claimed was not his). As citations
for possession of marijuana were being written, an offer was made
by the group that they play “rock, paper, scissors to see who could
take the charge.”

     S.S., a seventeen-year-old co-resident of the townhouse, was
charged with possession of cannabis and paraphernalia. 4 S.S., who
the arresting officer said had bloodshot eyes and delayed speech
and movement (though she couldn’t say precisely from what
substance), denied that the marijuana or mason jar were his. At
trial, a roommate—who was playing videogames with his friends
before the officer arrived—testified that S.S. neither used nor
possessed the marijuana and mason jar; instead it was the
roommate and his three buddies who did so (they’d been toking all
day). The roommate avowed that he’d never seen S.S. possess
marijuana or drug paraphernalia at any time and that S.S. was
never present when the marijuana’s use occurred in the
townhouse. On the evening in question, S.S. was “probably like
getting ready for bed, like eating or something. Like the dorm is
two stories, so like he could have been there but not been like
downstairs . . . .” Consistent with his testimony on this point, the
officer who entered the townhouse said that S.S. was downstairs
but towards the back of the room by the stairwell that led to the
second floor bedrooms.

    At the close of evidence in the bench trial, S.S. moved for a
judgment of dismissal, his attorney arguing:




area; instead, one of the visitors had secreted it in his pocket (when
Officer Martina arrived), where it was found later.
    4 S.S. pled no contest to a third charge, criminal mischief,
arising from damage he caused to university property after he
learned he was being cited for possession and spoke to his father
on the phone.

                                  3
    [S.S.] was not at any time in possession of these items. He
    was not aware of these items. And he did not have the
    ability to exercise dominion and control over them.
    Simply because he’s a resident of the home occupied by
    four different people, and clearly with the number of
    visitors, does not indicate that he had knowledge or the
    ability to exercise dominion and control. And an inference
    is not necessary where direct evidence to the contrary has
    been presented.

The trial court denied the motion (but made no factual findings),
found S.S. guilty of possession of cannabis and paraphernalia,
withheld adjudication of delinquency, and sentenced S.S. to three
months of probation.

     On appeal, S.S. claims that denial of his motion for judgment
of dismissal was error, urging that nothing—other than S.S.’s
physical presence in the townhouse at the time of the officer’s
entry—establishes a basis for S.S.’s constructive possession of the
contraband (actual possession is not an issue, there being no
evidence of such). He positions the case as a purely circumstantial
one for which he provided a reasonable hypothesis of innocence
(lack of knowledge and control over the contraband). The State
counters that someone who jointly occupies a townhouse and is
physically present in its common area where drugs and
paraphernalia are in plain sight and smell can be deemed to have
constructive possession of the contraband. (“Because the
contraband was in [S.S.’s] presence, in plain view, in a common
area of his own dorm, emitting a strong and distinct odor, and
causing [S.S.] to exhibit indications of impairment,[5] there was

    5  Despite this statement in the State’s answer brief and its
similar statement during closing argument, no evidence supports
that S.S. smoked marijuana, reeked of its odor, or was inebriated
by it. No one testified that S.S. smoked marijuana; his roommate
testified to the contrary. S.S. appeared to be “under the influence”
but the arresting officer said she couldn’t make a judgment
whether it was due to alcohol, marijuana, or something else. She
testified that the smell of marijuana was present at all times,
including when she interviewed S.S. She never said, however, that
the odor emanated directly from S.S. Given the State’s claim that
                                 4
sufficient evidence to create a question for the trier of fact about
constructive possession.”).

     Our review of the denial of S.S.’s motion for judgment of
dismissal is de novo with evidence viewed “in a light most
favorable to the State, drawing all reasonable inferences in its
favor.” Ramos v. State, 89 So. 3d 1119, 1122 (Fla. 1st DCA 2012).
Viewed in this way, the evidence showed that S.S. was a resident
of the four-bedroom townhouse and was near the stairwell into the
common area 6 where the marijuana and mason jar were in


S.S. smoked and was inebriated by marijuana, it is unclear why
the trial judge refused to allow reference to test results from the
Juvenile Probation Office, which reflected that S.S. tested
“negative for all substances,” the record not providing an
unequivocal explanation.
    6  S.S. does not dispute that the small living space, where
occupants of the four-bedroom townhouse have communal rights
of use, is a “common area” for purposes of a constructive possession
theory. Evidence could show that access, use, or control of a
“common area” might, in actuality, be off-limits to a roommate
whose co-tenants have excluded him; but that is not the case here.
Indeed, this case is similar to Bradshaw v. State, 509 So. 2d 1306
(Fla. 1st DCA 1987), where Bradshaw lived in the house along with
her siblings. Five people, including Bradshaw, were present in the
house when a search warrant was executed. Officers found a
plastic baggie containing cocaine on the top of the kitchen counter,
although Bradshaw was not in the kitchen when the officers
entered the house. Id. at 1308. Citing Brown v. State, 428 So. 2d
250, 252 (Fla. 1983), this Court found “that the evidence that
cocaine in a plastic baggie was in plain view on the counter top in
the kitchen, a common area of appellant’s house over which she
had control, was sufficient to create a question for the trier of fact
as to constructive possession of the cocaine.” Id. at 1309 (emphasis
added). That a “common area” is involved distinguishes S.S.’s
situation from the juvenile in D.K.W. v. State, 398 So. 2d 885, 886
(Fla. 1st DCA 1981), which reversed a charge of constructive
possession of marijuana. In D.K.W., two juveniles were found near
marijuana, one claimed it was his alone, and both were found by
police in the presence of a nearby “roach.” Id. at 885. The
                                  5
conspicuous view on a table. The lingering vapors of marijuana
smoke were easily detectable, and the detritus of loud, late-night
merrymaking was strewn about; S.S. also had signs of being
“under the influence,” though the influencer wasn’t clear.

     A constructive possession theory required the State “to prove
two elements: that [S.S.] had (1) dominion and control over the
contraband and (2) knowledge that the contraband was within his
presence.” Knight v. State, 186 So. 3d 1005, 1012 (Fla. 2016). 7 This
type of claim can be proven by circumstantial evidence, but it is
subject to the “circumstantial evidence standard,” which requires
that “[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.” Id. at 1009 (quoting
Jaramillo v. State, 417 So. 2d 257, 257 (Fla. 1982)). A major
limitation, however, is that the “circumstantial evidence standard
of review applies only where all of the evidence of a defendant’s
guilt—i.e., the evidence tending to show that the defendant
committed or participated in the crime—is circumstantial, not
where any particular element of a crime is demonstrated
exclusively by circumstantial evidence.” Knight, 186 So. 3d at 1010
(emphasis added).

     To begin, the case against S.S. is not based entirely on
circumstantial evidence. Like the situation in Knight, which
involved a traffic stop where marijuana was found in a suitcase in


marijuana in D.K.W. was located “in a public place, behind a wall
at a school, in spacial proximity equally near both boys,” rather
than in a townhouse units’ common area. Id. at 886. As such, that
case—upon which S.S. relies heavily—is inapplicable.
    7   Knowledge of the illicit nature of the contraband was
eliminated legislatively in 2002. See Ch. 2002-258, § 1, at 1848,
Laws of Fla; § 893.101(2), Fla. Stat. (2018) (“[K]nowledge of the
illicit nature of a controlled substance is not an element of any
offense under this chapter. Lack of knowledge of the illicit nature
of a controlled substance is an affirmative defense to the offenses
of this chapter.”).

                                 6
the back seat of a car occupied by three acquaintances, Officer
Martina’s “testimony about the location of the cannabis [is] direct
evidence of dominion and control” as to S.S., who was located by
the townhouse’s internal stairwell adjoining the common area
when the officer discovered the contraband. Id. at 1012 (emphasis
added). The same is true as to her testimony about the intensity of
the smell of marijuana inside the townhouse where S.S. resides
and S.S.’s lack of sobriety. As such, the “circumstantial evidence
standard” does not apply because some of the evidence tending to
show S.S.’s constructive possession of the contraband is direct
evidence. For this reason, appellate review of the denial of S.S.’s
motion for judgment of dismissal is de novo, and his conviction will
be reversed if “not supported by competent, substantial evidence.”
Id. at 1012. A “conviction is supported by sufficient evidence where
a rational trier of fact could find the existence of the elements of
the crime beyond a reasonable doubt after viewing the evidence in
the light most favorable to the State.” Id.

     Turning to the elements of constructive possession, and going
in reverse order, the second element—knowledge of the
contraband’s presence—is met. No question exists that a rational
judge could conclude that S.S. saw the marijuana (and smelled its
burnt odor) in the common area of the townhouse based on the
officer’s testimony. Perhaps S.S. didn’t see or smell it, but a
conclusion that he did is reasonable under the circumstances.

     The first element—dominion and control over the
contraband—is more knotty because the only supporting evidence
is that S.S. was a joint resident in the four-bedroom townhouse,
and that the marijuana and mason jar were openly displayed on
the table in the common area during the early morning hours when
Officer Martina paid a visit. That S.S. resided in the townhouse,
and was not just a visitor or guest that evening, results in a more
stringent legal standard because a resident is presumed by law to
have a degree of dominion and control over the property that a
visitor or guest lacks. See, e.g., J.S.M. v. State, 944 So. 2d 1143,
1144 (Fla. 2d DCA 2006) (Because no evidence existed that the
minor “was an occupant of the room rather than a guest, the court
could not infer that he had the ability to control the contraband
simply because it was in plain view.”). To implement this
presumption, the standard legal test for a joint possessor of a

                                 7
home, townhouse, or other similar property states: “If the premises
where contraband is found is in joint, rather than exclusive,
possession of a defendant, . . . knowledge of the contraband’s
presence and the ability to control it will not be inferred from the
ownership but must be established by independent proof.” Brown,
428 So. 2d at 252; see Bradshaw v. State, 509 So. 2d 1306, 1308-09
(Fla. 1st DCA 1987) (same). To establish the “control element of
possession” the “independent proof” may consist of “fingerprints,
an admission, or evidence of other incriminating statements or
circumstances; a defendant’s mere proximity to the contraband is
not sufficient.” Smith v. State, 175 So. 3d 900, 903 (Fla. 1st DCA
2015). So, for example, if the marijuana and mason jar had been
found hidden from view in the back of a kitchen cupboard,
independent proof—such as S.S.’s fingerprints on the jar—would
be required to show control.

     One form of independent proof of control, however, is “when
contraband is located in plain view, control over the item may be
inferred from evidence that the defendant has exclusive control
over the place where it was discovered.” Id. (emphasis added). If
S.S. were the only resident in the townhouse, this principle would
apply. But a related principle applies under the supreme court’s
decision in Brown, which addressed the following certified
question: “Does ownership and joint occupancy of a premises
where illegal drugs are discovered in plain view, in the presence of
the owner, constitute sufficient evidence to support a conviction for
constructive possession as to the owner or as to a lessee under the
same circumstances?” 428 So. 2d at 251. Brown, who owned a home
where he and two co-tenants resided, was found to have
constructive possession of drugs strewn throughout the residence
due to his “superior possessory rights.” 8 In answering the certified
question affirmatively, the supreme court said:

    Brown claims that he could be convicted of constructive
    possession on the instant facts only if the jury
    impermissibly piled inference upon inference. We do not

    8  Brown v. State, 412 So. 2d 420, 422 (Fla. 4th DCA
1982), approved, 428 So. 2d 250 (Fla. 1983).


                                 8
    find, however, that the jury would have to have drawn an
    impermissible inference. In the instant case the
    knowledge element is met because the contraband was in
    plain view in common areas throughout the house. The
    dominion and control element is met because Brown, as
    resident owner of his home, had control over the
    common areas. Therefore, the elements of knowledge and
    control have been satisfied, and, as the district court
    found, the facts presented at trial were sufficient to create
    a jury question as to constructive possession.

Brown, 428 So. 2d at 252 (emphasis added) (footnote omitted). The
highlighted sentence establishes that a “resident owner” has
“dominion and control” over the “common areas” of his home,
which, in combination with the resident owner being present when
contraband is found, amounts to constructive possession. The
supreme court in Brown went further, however, issuing the same
pronouncement as to co-tenants, answering affirmatively the
following certified question: “Where two or more persons jointly
occupy premises and illegal drugs are discovered in plain view, in
their presence, is such proof, without more, sufficient to support a
conviction for constructive possession as to each person?” 428 So.
2d at 251. It viewed this question as “virtually identical to the first
question” except as to the issue of ownership, which it found to be
immaterial. Id. at 252. In sum, the court held that “joint
occupancy, with or without ownership of the premises, where
contraband is discovered in plain view in the presence of the owner
or occupant is sufficient to support a conviction for constructive
possession.” Id. (emphasis added).

     By its holding, the supreme court effectively did away with
the distinction between whether a conviction can be “based upon
evidence of knowledge and control over the place where the
contraband is located, in this case a residence, as opposed to
evidence of control over the contraband itself.” Brown, 412 So. 2d
at 423 (Anstead, J., concurring) (emphasis added). Instead,
physical presence in a jointly-occupied space where contraband is
in plain view is legally sufficient to convict. 9

    9 The Florida Supreme Court recently said that the two
elements of construction possession theory are “(1) dominion and
                                  9
    Brown has many ramifications, a few applicable to this case.
The first is a practical one. It is possible, if not likely, that a college
student living in a multi-bedroom townhouse on a college campus
may have a roommate at some point who possesses or uses illegal
drugs openly (or, as is pertinent to minors such as S.S., lawfully
possesses and uses alcohol) and leaves them in “plain view” in a
“common area” of the townhouse from time to time. 10 Under

control over the contraband and (2) knowledge that the contraband
was within his presence.” Knight, 186 So. 3d at 1012 (emphasis
added). But the italicized statement appears to be shorthand for
control over the place where contraband was located, not the
contraband itself. In Knight, at issue was whether a suitcase with
a luggage tag bearing Knight’s name, found in the back seat of a
vehicle driven by Knight, was within his control. The supreme
court    concluded     that    it   was,    saying   the    “State
demonstrated Knight’s dominion and control over the cannabis by
introducing evidence that Knight owned the suitcase containing it.
Although Knight did not testify that he owned the luggage, the
jury could have instead accepted [the arresting deputy’s]
testimony that the suitcase contained a luggage tag
identifying Knight as its owner.” Id.

     10 Soon after Brown was decided, a commentator said the
“effect of the Florida Supreme Court’s holding is that a joint
occupant living with others who insist on using illegal drugs must
either vacate the premises or report the violation.” Robert J.
Surrette, Constructive Possession of Illegal Drugs: The Inferential
Leap from Joint Occupancy to Joint Control, 12 STETSON L. REV.
512, 524 (1983). In the higher education context, immediately
vacating a dormitory may be difficult, but not impossible; reporting
the situation, though the admirable and upstanding choice, may
cause ostracism, retaliation, or worse, but reporting does not
forestall a constructive possession charge, it merely presents the
reporter in a better light if charged. Another option is to insist that
roommates keep common areas drug-free, which presents its own
challenge—known in economics as the “tragedy of the commons”—
where everyone has an equal right to use a common resource,
resulting in over-utilization because no one can be excluded;
attempts to self-regulate a “common area” in a multi-bedroom
townhouse or dormitory presents a similar challenge, particularly
                                    10
Brown, evidence of actual control of the contraband itself is
unnecessary; all that is required to sustain a conviction based on
a constructive possession theory is that the defendant be a resident
of a jointly-occupied apartment, townhouse, or condominium and
that contraband be found in plain view in his presence. Brown
effectively held that a jury is not legally compelled to find any
independent evidence linking the joint occupant to the particular
drug seized under these circumstances. “On the contrary, the jury
is permitted to infer that the joint occupant ‘controlled’ the illegal
drugs based merely on evidence that the illegal drugs were
discovered in plain view and in his presence.” Robert J. Surrette,
Constructive Possession of Illegal Drugs, 12 STETSON L. REV. at
522.

     An otherwise blameless dormmate—whose only transgression
is being present when contraband is found in a common area of a
living room, dining area, or kitchen—can be swept into the same
category as those actually using or possessing the illegal items,
leaving the fact-finder much discretion to decide guilt versus
innocence. Applied here, a fact-finder could conclude that S.S. was
present during the marijuana festivities in the common area of the
townhouse, but lacked control over the situation and the raucous
partiers in his midst; he was in the wrong place at the wrong time,
having nothing to do with those raising Cain. See Wade v. State,
558 So. 2d 107, 108 (Fla. 1st DCA 1990) (“After thoroughly
reviewing the record, we have concluded that the State proved only
that appellant was in the room at the same time four other people
were there.”). A fact-finder could just as readily find S.S. to have
constructive possession of the contraband, as the trial judge did,
notwithstanding the testimony to the contrary by S.S.’s roommate,
which may have been disbelieved. Either outcome would be
permissible on this record, even if one more closely approximates
the truth.

where group quarters are shared with strangers. See ROBERT C.
ELLICKSON, INFORMAL ORDER AROUND THE HEARTH, 112-13 (2008)
(“Some colleges and universities encourage students who are
roommates to negotiate detailed written contracts to govern
behavior in shared space. These contracts make sense, if they ever
do, when roommates are total strangers, such as entering
freshman.”).
                                 11
    Another ramification is the breadth of Brown‘s holding. Years
ago, before Brown was decided, our Court in a constructive
possession case said:

    We decline to presume that all inhabitants and guests in
    a private home are in control and constructive possession
    of marijuana being smoked by one or merely some of them.
    [Defendant’s] movement to close the door once opened
    [after police had knocked] betrayed his consciousness
    that marijuana was in the place, but hardly was
    additional evidence of his possession of it. The officers’
    sense of smell reliably told them that marijuana was
    being consumed within, but it could not and did not
    identify [Defendant] or any other occupant as a
    misdemeanant or felon.

Britton v. State, 336 So. 2d 663, 665 (Fla. 1st DCA 1976) (emphasis
added). Brown effectively weakened the italicized language, such
that any occupant who is physically present in a common area of a
jointly-occupied dwelling where contraband is in plain view is
subject to a constructive possession charge. By this prevailing legal
standard, the record contains competent, substantial evidence by
which the trial judge could conclude that S.S. had constructive
possession of the marijuana and mason jar. For this reason, it was
proper to deny S.S.’s motion for judgment of dismissal.
                   _____________________________

Andy Thomas, Public Defender, and Justin F. Karpf, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Thomas H. Duffy,
Assistant Attorney General, Tallahassee, for Appellee.




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