         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-5158
                 _____________________________

DARAFAEL MCKIRE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________

On appeal from the Circuit Court for Columbia County.
Wesley R. Douglas, Judge.

                         August 24, 2018

OSTERHAUS, J.

    Darafael McKire challenges his convictions for possession
with intent to sell cocaine and possession of more than 20 grams of
marijuana. We conclude that the State proved Mr. McKire
possessed the cocaine found next to where he was sitting in the
vehicle and affirm on that count. We agree with Mr. McKire,
however, that the State failed to prove that he actually or
constructively possessed the marijuana found on the gas station’s
property.

                                I.

    In the course of investigating a shootout between cars that
had fled a Columbia County gas station on U.S. Highway 90, law
enforcement officers found illegal drugs. They found, among other
things, a cocktail shaker cup stuffed with marijuana lying next to
a fence at the gas station’s property line.

    At about the same time in another part of town, law
enforcement officers stopped a car with three occupants that had
been part of the shootout. Mr. McKire emerged from the back seat
of the car bleeding profusely from a gunshot wound. He was
transported to the hospital. Then, a search of the vehicle uncovered
cocaine in a bag with traces of what appeared to be blood in the
backseat pocket adjacent to where Mr. McKire was sitting.

     The State subsequently charged Mr. McKire with drug crimes
arising not only from cocaine found in the car and at the shootout
scene, but also arising from the marijuana found on the ground at
the store. At trial, the State’s case tied Mr. McKire to the
marijuana based on a security video. The grainy video showed a
car pull up to the gas pumps and wait a few minutes until another
car arrived. A passenger from the second car exited and engaged
with occupants of the first car, where Mr. McKire sat. The video
shows Mr. McKire then dart from his car and run towards U.S.
Highway 90, dropping two unidentifiable objects on the pavement
as he ran. An occupant of the second car retrieved one of the things
that Mr. McKire dropped and got back in his car before it drove
away. By that time, Mr. McKire reappeared in the video and began
shooting at the departing car. Mr. McKire then re-entered the back
seat of the first car and it also drove away.

     After the close of the State’s case, Mr. McKire moved for a
judgment of acquittal. He argued that there was insufficient proof
connecting him to the marijuana found on the ground at the gas
station. The trial court denied his motion. And Mr. McKire was
ultimately found guilty of possessing the marijuana and sentenced
to five years in prison, concurrent with longer sentences he
received on other charges.

                                II.

     We review the denial of a motion for judgment of acquittal de
novo. Taylor v. State, 13 So. 3d 77, 78 (Fla. 1st DCA 2009). In this
review, “we consider the evidence and all reasonable inferences in
a light most favorable to the State as the non-moving party.” Id.

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     To convict Mr. McKire for possessing marijuana, the State had
the burden of proving that he either actually or constructively
possessed it. See Smith v. State, 175 So. 3d 900, 902-03 (Fla. 1st
DCA 2015). Actual possession is established if the contraband is
found on the defendant’s person or is “within his ‘ready reach’ and
under his control.” Id. at 903. Constructive possession is proven by
showing that “Appellant knew of the presence of the contraband
on or about [the] premises and had the ability to maintain
dominion and control over it.” Taylor v. State, 13 So. 3d 77, 80 (Fla.
1st DCA 2009).

     The State hinged its marijuana possession case against Mr.
McKire on evidence from the gas station’s security video. The video
showed Mr. McKire running and dropping things near the gas
pumps during the shootout. Mr. McKire dropped these things in
the same general area where officers later found marijuana.

     But there are problems with basing Mr. McKire’s marijuana
conviction on the video evidence. First, while the video shows Mr.
McKire running from the gas station and dropping two objects (one
of which is retrieved by someone else in the video), it doesn’t show
what he dropped. It is plausible that one of the things Mr. McKire
dropped was a shaker cup. But it is not clear from the video.
Beyond the iffy video evidence, nothing else connects Mr. McKire
to the marijuana-filled shaker cup: no one testified that he owned
or possessed such a cup; nothing indicated that the cup only
appeared after Mr. McKire’s visit to the gas station; and no
physical evidence connected him to the cup or contents of the cup.
Under these circumstances, about all that is left to tie Mr. McKire
to the cup is that they both were at the gas station around the same
time. But this isn’t sufficient to support a possession conviction.
See Lindsey v. State, 793 So. 2d 1165, 1167 (Fla. 1st DCA 2001)
(“When the contraband is found in a public place, more than mere
proximity to the defendant must be shown to sustain a
conviction.”).

     Secondly, there is a location discrepancy. The things Mr.
McKire dropped at the station didn’t appear to fall in the grass
strip next to the fence, where the officers found the marijuana.
While the video doesn’t clearly show the fence, the items Mr.

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McKire dropped appear to fall on the pavement (where the
investigating officers found other objects connected to the
shootout). Again here, the video evidence shows only that Mr.
McKire dropped something in the general vicinity of where officers
later found marijuana.

     We understand the State’s argument based on Ball v. State,
758 So. 2d 1239 (Fla. 5th DCA 2000), that Mr. McKire’s proximity
to the marijuana is sufficient to establish its case. But the facts in
Ball were different. There, an officer found crack cocaine in a bottle
behind a newspaper box, immediately next to where the defendant
was standing, and just after witnessing him suddenly hide his
hand behind the box. Id. at 1240. The direct evidence and
proximity of the defendant to the contraband when it was found
mattered significantly. The district court affirmed because the
circumstances showed that the defendant knew where the cocaine
was and retained the ability to control it. Id. at 1241.

     Here, however, Mr. McKire wasn’t sufficiently connected with
the contraband. He wasn’t found with, near, or making moves
toward the marijuana. Under these facts, his earlier proximity to
the area where officers later found the contraband is insufficient
to establish possession. Lindsey, 793 So. 2d at 1167.

                                 III.

    For these reasons, we reverse Mr. McKire’s conviction on the
count II marijuana possession charge and remand for the trial
court to enter a judgment of acquittal on this count. The judgment
and sentence are otherwise affirmed.

    AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF and WINSOR, JJ., concur.




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               _____________________________

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


Andy Thomas, Public Defender, and Maria Ines Suber, Assistant
Public Defender, Tallahassee, for Appellant.

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




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