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


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


N.G.S.,                                      )
                                             )
             Appellant,                      )
                                             )
v.                                           )        Case No. 2D17-4650
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed May 17, 2019.

Appeal from the Circuit Court for Pinellas
County; Patrice W. Moore, Judge.

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

Ashley Moody, Attorney General,
Tallahassee, and Johnny T. Salgado,
Assistant Attorney General, Tampa, for
Appellee.



SALARIO, Judge.

             N.G.S. appeals from a juvenile disposition order finding that he committed

the delinquent acts of being a delinquent in possession of a firearm and being a

delinquent carrying a concealed weapon. The order withheld adjudication and required

N.G.S. to serve fifteen days in a juvenile detention center and twelve months of
probation. He argues that the trial court erred in admitting his confession that the gun

belonged to him without independent evidence of the corpus delicti of either delinquent

act and that the court's finding of delinquency and withheld adjudication on both counts

violated double jeopardy. We find the corpus delicti issue dispositive and reverse.

                                             I.

              On June 16, 2017, around 10:00 p.m., Clearwater Police Detective Harry

Dodson was in his car behind N.G.S.'s residence when he saw N.G.S. sitting in a car

nearby with three other young men. Detective Dodson knew N.G.S. was on probation

and had an 8:00 p.m. curfew. He approached the car. N.G.S., who was sitting in one of

the back seats, opened the door and told the detective: "I'm sorry. I'm sorry. I'm sorry."

The smell of marijuana smoke emanated from the car. Detective Dodson and another

detective began getting everyone out. As Detective Dodson was about to take N.G.S.

from the back seat, he noticed "just the edge" of a pistol grip—what he also described

as "just the very back of the backstrap" of a gun—sticking out underneath the seat in

front of N.G.S. Detective Dodson reached down and removed what turned out to be a

Smith & Wesson 9 mm handgun from under the seat in front of N.G.S.

              Detective Dodson removed N.G.S from the car and read him the standard

Miranda1 warnings. N.G.S. said he understood. N.G.S. then confessed that he got the

gun in St. Petersburg and brought it into the car with him that night. The State later filed

a delinquency petition alleging that N.G.S. committed two delinquent acts: (1)

delinquent in possession of a firearm, see § 790.23(1)(b), Fla. Stat. (2016), and (2)

delinquent carrying a concealed weapon, see id.



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

                                            -2-
              At the adjudicatory hearing, the State asked Detective Dodson to testify

about N.G.S.'s admission that the gun was his. N.G.S. objected, arguing that because

the State had failed to prove the corpus delicti of either delinquent act, the confession

was not admissible. The nub of N.G.S.'s argument was that the State was required but

failed to prove, independent of N.G.S.'s admission, either (1) that all of the young men

in the car had been adjudicated delinquent of felony offenses and were under the age of

twenty-four, such that no matter who possessed or carried the gun, the delinquent acts

had been committed or (2) that N.G.S. himself possessed and carried the firearm. See

§ 790.23(1)(b). The court overruled the objection and admitted N.G.S.'s statements into

evidence. Detective Dodson later testified that the other young men in the vehicle were

ages fourteen, seventeen, and eighteen. There was no evidence, however, that any of

them had ever been found to have committed a felony delinquent act.

              N.G.S. moved for a judgment of dismissal again raising the corpus-delicti

issue and arguing, in part, that without his confession the evidence was insufficient to

support a finding of delinquency for either offense. The trial court denied that motion

and entered a disposition order finding N.G.S. delinquent and withholding adjudication

on both counts. This timely appeal follows.

                                              II.

              N.G.S. argues that the trial court erred by allowing his admission that the

gun was his into evidence in the absence of sufficient evidence proving the corpus

delicti of either delinquent act with which he is charged. Our review is for abuse of

discretion. See Tanzi v. State, 964 So. 2d 106, 116 (Fla. 2007) (reviewing ruling on

corpus delicti determination for abuse of discretion); J.B. v. State, 166 So. 3d 813, 816




                                           -3-
(Fla. 4th DCA 2014) ("The trial court's admission of a confession over a corpus delicti

objection is reviewed for an abuse of discretion.").

                                             A.

              Corpus delicti is an old common law rule still followed in Florida that,

simply stated, holds that a defendant's confession is not admissible to prove his or her

guilt unless the State also introduces direct or circumstantial evidence independent of

the confession to prove the corpus delicti or, in English, the body of the crime. Shelden

v. State, 38 So. 3d 214, 216 (Fla. 2d DCA 2010); see also J.B. v. State, 705 So. 2d

1376, 1378 (Fla. 1998) (rejecting argument that the rule should be abolished in Florida).

The gist of the rule is that before it can have the defendant's confession admitted, 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." Franqui v. State, 699

So. 2d 1312, 1317 (Fla. 1997) (citing State v. Allen, 335 So. 2d 823, 825 (Fla. 1976)).

The stated reason for the rule is that no one should be convicted when a confession is

all there is to prove that a crime actually took place. See Shelden, 38 So. 3d at 216

("[T]he State is [obligated] to demonstrate, by evidence other than the defendant's

admission, that the crime was in fact committed."); see also Allen, 335 So. 2d at 825

(requiring proof "that a crime has been committed" to ensure that "no person be

convicted out of derangement, mistake or official fabrication").

              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. See A.P. v.

State, 250 So. 3d 799, 802 (Fla. 2d DCA 2018) (describing circumstances in which "the

identity of the guilty party and the proof that a crime occurred" are so intertwined that

                                            -4-
proof of corpus delicti and guilty agency are the same (quoting Spanish v. State, 45 So.

2d 753, 754 (Fla. 1950))); State v. Walton, 42 So. 3d 902, 906-07 (Fla. 2d DCA 2010)

(stating that the defendant's identity as the driver may become a part of the corpus

delicti where the evidence does not establish a crime without it). Nor does it require that

the body of the crime be proved beyond a reasonable doubt. Shelden, 38 So. 3d at

216. Rather, it requires that the State produce "substantial evidence," which need not

be "uncontradicted or overwhelming," to prove that a crime has in fact happened. Allen,

335 So. 2d at 825 (quoting Tucker v. State, 59 So. 941, 941 (Fla. 1912)).

              So what is the corpus delicti in this case? Both offenses of which N.G.S.

was found delinquent were based on section 790.23(1)(b), which provides in relevant

part as follows:

              (1) It is unlawful for any person to own or to have in
              his or her care, custody, possession, or control any
              firearm, ammunition, or electric weapon or device, or
              to carry a concealed weapon, including a tear gas gun
              or chemical weapon or device, if that person has
              been:

                     ....

              (b) Found, in the courts of this state, to have
              committed a delinquent act that would be a felony if
              committed by an adult and such person is under 24
              years of age.

              As to the count for delinquent carrying a concealed weapon, the statute

makes it unlawful for a delinquent to "carry a concealed weapon, including a tear gas

gun or chemical weapon or device." Id. For the purposes of chapter 790, "concealed

weapon" is defined as "any dirk, metallic knuckles, billie, tear gas gun, chemical weapon

or device, or other deadly weapon carried on or about a person in such a manner as to

conceal the weapon from the ordinary sight of another person." § 790.001(3)(a). We

                                           -5-
have previously held that a firearm does not meet the definition of a "concealed

weapon" under chapter 790. See Baldwin v. State, 857 So. 2d 249, 251 (Fla. 2d DCA

2003). But see Wiggins v. State, 253 So. 3d 1196 (Fla. 1st DCA 2018).

              The corpus delicti for this offense, then, would at least include some

evidence, separate from N.G.S.'s admission, that someone covered by the statute (i.e.,

a delinquent with the requisite prior delinquency finding) carried something that met the

definition of concealed weapon. The State's evidence in this case, however, showed

that the only potentially-unlawful item Detective Dodson recovered during his interaction

with N.G.S. was a gun. Because a gun cannot be a "concealed weapon" under chapter

790, it follows that the State's evidence does not establish the corpus delicti for

delinquent carrying a concealed weapon.

              We turn now to the possession charge. As concerns a delinquent's

unlawful possession of a firearm, our court has held that the body of the crime is "that a

firearm was possessed by an individual who is prohibited by the statute from

possessing it"—as relevant here, an individual under twenty-four who has been found to

have committed a delinquent act that would be a felony if committed by an adult. See

A.P., 250 So. 3d at 801; see also J.J.J. v. State, 235 So. 3d 1014, 1016-17 (Fla. 2d

DCA 2017) (holding that the State failed to establish the corpus delicti of minor in

possession of a firearm where the only evidence that a minor possessed a firearm was

inadmissible).

              In determining whether the State actually proved the corpus delicti of the

possession count, this much is not in dispute: there was no evidence that all of the

occupants of the car in which the gun was found had previously been found to have

committed delinquent acts that would have been felonies had they been committed by

                                            -6-
adults. If these were the facts and the State had sufficiently proved them, this would be

a no-brainer affirmance. It is entirely logical to infer from the facts that someone in the

car possessed the gun Detective Dodson found under the seat. And if everyone in the

car was a delinquent described by section 790.23(1)(b), then it is equally logical to infer

that an individual described by the statute possessed a firearm. See, e.g., State v.

Holzbacher, 948 So. 2d 935, 937 (Fla. 2d DCA 2007) (holding that the State showed the

corpus delicti for possession of a controlled substance where it "established the

presence of a controlled substance in the car with no signs of authorization for

possession of said substance" and "[t]he fact that the substance was found in an

automobile shows that it was possessed by someone"). N.G.S.'s confession would then

have been admissible to show that he was that individual. See, e.g., State v. Walton,

42 So. 3d 902, 909-10 (Fla. 2d DCA 2010) (holding that the defendant's confession was

admissible to establish identity in a prosecution for driving under the influence with

serious bodily injury where independent evidence showed that all of the occupants of

the vehicle that caused the crash had been drinking and were impaired).

              Here, however, the only occupant of the car the State showed to have

been covered by section 790.23(1)(b) was N.G.S. Thus, the only way for the State to

have proved the corpus delicti of the possession offense was to have shown that N.G.S.

himself possessed a firearm.2 See, e.g., A.P., 250 So. 3d at 802 (dealing with minor in


              2Detective  Dodson's testimony—given after N.G.S.'s confession was
admitted—that each of the occupants of the car was eighteen or younger would enable
us to say that the State proved the corpus delicti of unlicensed carrying of a concealed
firearm, a delinquent act with which N.G.S. was not charged but that is related by
subject matter to those with which he was charged. See §§ 790.01(2) (making it a third-
degree felony to carry a concealed firearm without a license), .06(2)(b) (restricting
concealed firearm licensure to persons twenty-one and older); see also Garmon v.
State, 772 So. 2d 43, 46 (Fla. 4th DCA 2000) (holding that while the corpus delicti

                                            -7-
possession); J.J.J., 235 So. 3d at 1016 (same). Put differently, this is one of those

uncommon cases where, on the evidence the State presented, proof of the identity of

the person who committed the offense was necessary to prove that a crime was

committed at all.

                                            B.

              To determine whether the State proved the corpus delicti of the delinquent

act of being a delinquent in possession of a firearm, we must ask whether N.G.S.

possessed the gun Detective Dodson found. Possession of a firearm may be either

actual or constructive. See Harrison v. State, 483 So. 2d 757, 758 (Fla. 2d DCA 1986)

(holding that there must be proof of actual or constructive possession of a firearm to

prove the corpus delicti of felon in possession). A person actually possesses an item

when it is in his hand, on his person, or within his reach and under his control. Sasser

v. State, 67 So. 3d 1150, 1152 (Fla. 2d DCA 2011). Under our analogous precedents, it

seems quite clear that N.G.S. did not actually possess the gun. See, e.g., Smith v.



should be proved before a defendant's confession is admitted, a subsequent showing
can cure that defect). And there is some supreme court dictum to suggest that this
proof of a substantively related but uncharged offense might be enough to get the State
home. See Burks v. State, 613 So. 2d 441, 444 n.4 (Fla. 1993) (stating that "[t]he crime
of which the elements must be proven need not be the exact crime charged" and that "it
is sufficient if the elements of the underlying crime are proven rather than those of the
particular degree or variation of that crime which may be charged" (first citing Allen, 335
So. 2d at 825; and then citing Hart v. State, 783 S.W.2d 40, 42 (Ark. 1990))). The State
has not, however, made such an argument either in the trial court or in ours. And we
have not found a case in which a Florida court has actually held that proof of a crime
different from but related by subject matter to the crime charged suffices as proof of the
corpus delicti of the crime charged. The correct resolution of this issue is sufficiently
unclear that we decline to reach it without the benefit of briefing here. See Meyers v.
State, 704 So. 2d 1368, 1369 (Fla. 1997) ("The phrase 'corpus delicti' refers to proof
independent of a confession that the crime charged was in fact committed." (emphasis
added)); see also Powell v. State, 120 So. 3d 577, 591 (Fla. 1st DCA 2013) (explaining
that appellate courts may, but are not required to, address tipsy coachman grounds for
affirmance that have not been briefed by the parties).

                                           -8-
State, 123 So. 3d 656, 657 (Fla. 2d DCA 2013) (holding that evidence was legally

insufficient to prove that the driver of a jointly occupied vehicle actually possessed drug

paraphernalia in the driver's side visor, even where the driver was fumbling behind the

visor at the time); Skelton v. State, 609 So. 2d 716, 716 (Fla. 2d DCA 1992) (holding

that evidence was legally insufficient to prove that the passenger in a jointly occupied

vehicle actually possessed a bag of cocaine located under the passenger seat near

where his feet had been). The State has not argued otherwise.

              To prove the corpus delicti of the possession offense, then, the State had

to prove that N.G.S. constructively possessed the gun independently of his confession.

To establish that, the State needed to show that N.G.S. "knew of the presence of the

[gun] and was able to exercise control over [it]." See Watson v. State, 961 So. 2d 1116,

1117 (Fla. 2d DCA 2007). The State's only argument on this score is that it provided

such proof because the evidence showed that the gun was found "in N.G.S.'[s] vicinity."

But that argument is meritless because there were three other people in the car right

before Detective Dodson found the gun, and our court has "repeatedly held that mere

proximity to contraband in a jointly occupied car is not sufficient to sustain a conviction

based on constructive possession." See A.P., 250 So. 3d at 802 (applying this principle

to determine whether the State had proved the corpus delicti of a firearm-possession

offense); see also K.A.K. v. State, 885 So. 2d 405, 407 (Fla. 2d DCA 2004) ("A

defendant's mere proximity to the illegal items is insufficient to sustain a conviction.").

In those circumstances, knowledge and the ability to exercise control must be

established by independent proof. Watson, 961 So. 2d at 1117; accord Hargrove v.

State, 928 So. 2d 1254, 1256 (Fla. 2d DCA 2006).




                                             -9-
              Here, the State's only proof of constructive possession independent of

proximity is N.G.S.'s confession, which cannot be used to establish the corpus delicti of

the crime. So absent some other evidence—a statement from one of the other young

men in the car or N.G.S.'s fingerprints on the gun, for instance—the State is stuck. It

has failed to prove the corpus delicti of the offense of delinquent in possession of a

firearm so as to make his statement that the gun was his admissible evidence of his

guilt of that delinquent act. See A.P., 250 So. 3d at 802 (holding that the State failed to

prove the corpus delicti of minor in possession of a firearm found in a jointly occupied

vehicle where "the only independent proof . . . to establish constructive possession is

A.P.'s admission"); Powell v. State, 969 So. 2d 1060, 1064 n.7 (Fla. 2d DCA 2007)

(noting, in dictum, in a case involving constructive possession of cocaine in a jointly

occupied home, a "possible corpus delicti issue" where "there was no evidence other

than the unwarned statements Mr. Powell made to establish that a crime had been

committed"), quashed on other grounds by State v. Powell, 66 So. 3d 905 (Fla. 2011);

Ras v. State, 610 So. 2d 24, 25 (Fla. 2d DCA 1992) (reversing conviction for trafficking

by possession of cocaine where the State's only evidence of the ability to control the

cocaine was the defendant's admission).

                                            III.

              Because the State failed to prove the corpus delicti of the delinquent acts

with which N.G.S. was charged, we are required to reverse. We remand with

instructions to enter an order granting N.G.S.'s motion for a judgment of dismissal on

both counts. See A.P., 250 So. 3d at 803; J.J.J., 235 So. 3d at 1017. This disposition

renders it unnecessary for us to reach his double-jeopardy argument, and we therefore

decline to do so.

                                           - 10 -
              Reversed and remanded with instructions.


BLACK, J., Concurs.
SILBERMAN, J., Concurs specially with opinion.


SILBERMAN, Judge, Concurring specially.

              Based on the evidence and arguments presented, I agree with the

majority's conclusion that N.G.S. is entitled to a judgment of dismissal. As to the charge

of delinquent in possession of a firearm, the State failed to establish the corpus delicti

as it failed to adduce evidence that N.G.S. possessed a firearm. See A.P. v. State, 250

So. 3d 799, 801-02 (Fla. 2d DCA 2018). As to the concealed weapon charge, I

recognize that this court is bound to follow its holding in Baldwin v. State, 857 So. 2d

249, 251 (Fla. 2d DCA 2003), that a firearm does not meet the definition of a "concealed

weapon" under chapter 790. However, I still have the same concerns about the

propriety of the Baldwin majority's conclusion on this issue that I expressed in my

special concurrence therein. See id. at 253-57 (Silberman, J., concurring specially); see

also Wiggins v. State, 253 So. 3d 1196, 1198-99 (Fla. 1st DCA 2018) (declining to

follow the majority's decision in Baldwin and concluding that a firearm can be a

concealed weapon under chapter 790), review granted, No. SC18-1766, 2019 WL

413764 (Fla. Feb. 1, 2019).




                                           - 11 -
