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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



TIMOTHY LEE DOBBINS,                         )
                                             )
             Appellant,                      )
                                             )
v.                                           )        Case No. 2D18-401
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed July 24, 2019.

Appeal from the Circuit Court for Pinellas
County; Chris Helinger, Judge.

Howard L. Dimmig, II, Public Defender, and
Brett S. Chase, Special Assistant Public
Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Katie Salemi Ashby,
Assistant Attorney General, Tampa, for
Appellee.


VILLANTI, Judge.


             Timothy Dobbins appeals his conviction for burglary of a structure causing

damage greater than $1000. Because the evidence in this case was entirely

circumstantial and because the State failed to rebut, by competent substantial evidence,

Dobbins' reasonable hypothesis of innocence, we must reverse.
              The evidence presented at trial showed that the structure at issue was a

school that had been vacant for two years. The school's property manager testified he

was notified on November 25, 2014, that the school's gate was open. Because it was

raining, he waited until the following morning to inspect the school. He then discovered

that the school had been ransacked and had suffered extensive damage, including the

theft of thousands of dollars' worth of computer equipment and large amounts of copper

wiring. The property manager testified that he had not seen any damage when he

visited the school five days prior. During the ensuing investigation, the police collected

a number of cigarette butts that were found in the school's kitchen.

              A few weeks later, on December 20, 2014, an officer pulled over a white

Ford F-150 truck occupied by Dobbins and one Clinton Ingram because its tags were

expired. The detective who searched the truck found bolt cutters, audio/video cables,

and a compass from the school in the bed of the truck. Numerous cigarette butts were

also found in the vehicle. The State introduced evidence that the truck had been

previously registered to Dobbins; however, there was also evidence that Ingram

frequently drove the truck and would sell tools from it. Neither Dobbins nor Ingram were

arrested for the school burglary at the time of the stop, and the State offered no

evidence from the stop to indicate that either Dobbins or Ingram knew the property in

the bed of the truck had been stolen from the school several weeks previously.

              However, on December 25, 2014, an officer was dispatched to the school

after a silent alarm was triggered. The responding officer saw two people running away

from the school, one of whom was caught and identified as Ingram. Ingram was

subsequently released on bail, failed to appear, and was still at large at the time of




                                            -2-
Dobbins' trial. A few months later, a forensic expert determined that DNA from one of

the cigarette butts found at the school matched Dobbins' DNA; he was subsequently

arrested for the burglary of the school.

              After the State rested its case, Dobbins' moved for a judgment of acquittal,

arguing that the State's evidence was solely circumstantial and did not contradict his

reasonable hypothesis of innocence, i.e., that while the cigarette may have proven his

presence at the school at some point in time, it was insufficient to prove that he

committed the charged burglary. Furthermore, Dobbins argued that his mere presence

near the stolen property did not prove possession. The trial court denied the motion,

and the jury convicted Dobbins as charged. Dobbins now appeals his conviction and

sentence, contending that the trial court erred by denying his motion for judgment of

acquittal.

              The denial of a motion for a judgment of acquittal is subject to de novo

review. See State v. Platt, 154 So. 3d 1200, 1201 (Fla. 2d DCA 2015) (citing Pagan v.

State, 830 So. 2d 792, 803 (Fla. 2002)). "[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." Knight v. State, 186 So. 3d 1005, 1009 (Fla. 2016) (quoting Jaramillo v.

State, 417 So. 2d 257, 257 (Fla. 1982)). Circumstantial evidence that fails to exclude a

defendant's reasonable hypothesis of innocence requires an acquittal "no matter how

strongly the evidence may suggest guilt." Singleton v. State, 105 So. 3d 542, 544 (Fla.

2d DCA 2012) (quoting State v. Law, 559 So. 2d 187, 188 (Fla. 1989)).




                                           -3-
              In this appeal, Dobbins relies on this court's opinion in Singleton to support

his contention that the State's evidence was legally insufficient to support his conviction.

In Singleton, the evidence showed that the day before the burglary at issue, Singleton

and his friend were helping someone move. Id. at 543. The person who rented the

moving truck had the only key and was due to pick up the truck the next day. The

morning after the move, the police received a report that items had been stolen from the

house next door. Id. While searching the area, police smelled a tobacco odor

emanating from inside the rental truck. When the officer opened the door of the truck,

he found the stolen items along with a burning cigar near the rear edge of the truck.

Singleton's DNA was later detected on the cigar. Id. The State also presented

evidence that Singleton smoked that type of cigar and had been seen in the area earlier

that morning walking his dog. Id. at 542-43. The State contended that this evidence

was sufficient to support Singleton's convictions for burglary and grand theft, the trial

court denied Singleton's motion for judgment of acquittal, and the jury convicted him of

these offenses. Id. at 544.

              On appeal, this court held that the "State's proof was woefully lacking."

Id. at 545. Quoting Professor Ehrhardt's classic example, this court reiterated the

difference between direct and circumstantial evidence:

              Direct evidence is evidence which requires only the
              inference that what the witness said is true to prove a
              material fact; e.g., "I saw A shoot B" is direct evidence that A
              shot B. Circumstantial evidence is evidence which involves
              an additional inference to prove the material fact; e.g., "I saw
              A flee the scene" is circumstantial evidence of A's guilt and
              direct evidence of flight.




                                            -4-
Id. at 544 (quoting Charles W. Ehrhardt, Florida Evidence § 401.1 (2011 ed.)). And

because the only evidence presented by the State to connect Singleton to the burglary

and theft was circumstantial, that evidence was legally insufficient to support his

convictions. Id. at 545.

                 In this case, as in Singleton, the DNA evidence presented by the State

failed to establish that Dobbins committed the burglary at the school. At most, the DNA

on the cigarette established that Dobbins was present at the school sometime around

the time a burglary was committed. However, as we held in Singleton, "an accused's

mere presence at the scene does not eliminate a reasonable hypothesis that someone

other than the accused committed the crime." Id. at 545 (citing Valdez v. State, 504 So.

2d 9, 10 (Fla. 2d DCA 1986) ("Mere knowledge that an offense is being committed is not

the same as participation with criminal intent."), and Owen v. State, 432 So. 2d 579, 581

(Fla. 2d DCA 1983) ("[W]hen the state relies on circumstantial evidence, the

circumstances, when taken together, must be of a conclusive nature and tendency,

leading on the whole to a reasonable and moral certainty that the accused and no one

else committed the offense charged.")). Hence, the fact that the DNA on the cigarette

could place Dobbins in the school at some point in time was insufficient to establish

either that he was there on the date the crime was committed or that he participated in

committing it.

                 The State contends that Singleton does not control the outcome of this

case because, in this case, both Dobbins and Ingram were found in possession of

property stolen from the school. The State argues that the evidence of possession can

support Dobbins' conviction because possession of recently stolen property gives rise to




                                             -5-
an inference that the one in possession committed the burglary or theft. See

§ 812.022(2), Fla. Stat. (2014) (providing that proof of possession of property recently

stolen, unless satisfactorily explained, gives rise to an inference that the person in

possession of the property knew or should have known that the property had been

stolen); see also Walker v. State, 896 So. 2d 712, 720 n.5 (Fla. 2005) (applying the

inference regarding possession of recently stolen property to a case involving

constructive possession). However, this argument is not supported by the record.

              "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.' " Sanders v. State, 210 So. 3d 246,

248 (Fla. 2d DCA 2017) (alteration in original) (quoting Hargrove v. State, 928 So. 2d

1254, 1256 (Fla. 2d DCA 2006)). "[T]he requisite control is not established by an

accused's mere proximity to the contraband." Id. (quoting G.G. v. State, 84 So. 3d

1162, 1164 (Fla. 2d DCA 2012)). And this is particularly true in a jointly occupied

vehicle. See K.A.K. v. State, 885 So. 2d 405, 407 (Fla. 2d DCA 2004) (" 'In a case of a

jointly-occupied vehicle, knowledge and ability to control the contraband may not be

inferred, but must be established by independent proof.' E.A.M. v. State, 684 So. 2d

283, 284 (Fla. 2d DCA 1996). 'This proof must consist either of actual knowledge of the

contraband's presence or evidence of incriminating statements and circumstances from

which the jury reasonably might infer the accused's actual knowledge of the presence of

the contraband.' A.C. v. State, 658 So. 2d 1173, 1174 (Fla. 2d DCA 1995)."). Cf.

Meme v. State, 72 So. 3d 254, 256-57 (Fla. 4th DCA 2011) (holding that the State

presented sufficient evidence to withstand a motion for judgment of acquittal where an




                                            -6-
officer saw the defendant in the jointly occupied vehicle reaching to the place where the

contraband was later found).

              In this case, the State did not present evidence to prove that Dobbins had

constructive possession of any of the school's property. The officer who pulled over

Dobbins and Ingram did not testify; thus, it is unknown who was driving the truck or

whether the stolen goods were within anyone's ready reach. And although there was

testimony that the truck was previously registered to Dobbins, there was also testimony

that Ingram frequently used the truck. Thus, there was insufficient evidence to prove

that Dobbins knew of the presence of the stolen items in the truck or was able to

exercise dominion and control over them. In the absence of such evidence, the State

failed to prove that Dobbins had possession—either actual or constructive—of the

stolen property so as to support his conviction for burglary.

              In summary, the sole cigarette butt found at the school with Dobbins' DNA

on it proved, at most, that Dobbins had trespassed at some time in the past. It did not

prove that he committed a burglary that caused damage in excess of $1000. Therefore,

because the State's evidence was legally insufficient, the trial court erred in denying

Dobbins' motion for judgment of acquittal. We therefore reverse Dobbins' judgment and

sentence and remand for discharge.

              Reversed and remanded with directions.


LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                           -7-
