David Paul EDMOND, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Fourth District.
Cаrey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attornеy General, West Palm Beach, for appellee.
STEVENSON, J.
David Paul Edmond was tried by jury and found guilty of trafficking in cocaine *345 and use or possession of drug paraphernalia. In this аppeal, Edmond insists his convictions must be reversed as this was a constructive possession case, the premises where the drugs and paraphernalia were found wаs in the joint possession of several individuals, and there was no independent evidence demonstrating his knowledge of and ability to control the drugs and paraphernalia. We agree and reverse.
The Evidence
Police executed a search warrant on a home in St. Lucie County. The warrant authorized a search for cocaine, but did not nаme the defendant as an owner or occupant at the home, instead indicating the home was in the control of an unknown male. The home had two regular bedroоms and a make-shift third bedroom. When police entered, they found the home had little furniture and was cluttered, i.e., there were buckets and lawn furniture in the living room. Immediately upоn entry, police found a juvenile female standing in the door to one of the bedrooms. As police proceeded into the house and towards the kitchen, they heard a noise coming from a utility room. To enter the utility room, it was necessary to take two steps down. Police found Edmond at the foot of those steps. Edmond was described as crouched down and kneeling. Police yelled "sheriff's office" and "get on the ground." Edmond attempted to run toward an exterior door. Police restrained him and searched his person. At trial, one of the deputies testified he found $230 in Edmond's right, rear pocket. In a deposition, the same deputy stated Edmond was barely dressed and he did nоt recall recovering anything from Edmond's person.
Police secured the juvenile female and Edmond in the living room, read the warrant, and performed an inventory searсh. Police found narcotics in two locations. First, in a southwest bedroom, police found 1.2 grams of cocaine, $240, a Florida identification card and driver's license bеaring Edmond's name, both of which were expired and listing an address other than that of the residence being searched, and a Sprint bill addressed to Edmond at the address of the hоme. There was no evidence regarding the furnishings or other contents of the room and no evidence establishing where the identification and bill were found in relation to the drugs and money.
Second, within one-half to one arm's length of where Edmond had been crouched in the utility room, police found several holes in the block walls of the homе. The holes were described as having been built into the home, possibly for air flow, by turning the concrete blocks. Inside these holes, police found an oven mitt and a sock. The oven mitt contained 30.8 grams of crack cocaine. The cocaine in the mitt was still wet when it was found. At trial, police testified crack is not water soluble and thе only time it is found wet is after powder cocaine has been "cooked" to make crack. Powdered cocaine and baggies were found in the sock. Police also found four baggies containing crack and a digital scale in the utility room. As for the precise location of the baggies of crack and scale, pоlice testified the scale was "in the exact area where the narcotics in the utility room were found" and the baggies of cocaine were in "[t]he crawl spаce in the utility room."
No evidence was presented regarding who owned or was renting the home. Three officers recalled that, during execution of the warrant, another man entered the home and was irate. One of the officers recalled the man asked police what they were doing in his house.
The Law of Constructive Possession
To establish constructive possession, the State must prove (1) that the *346 defendant had "dominion and control over the contraband" and (2) that the defendant had "knowledge the contraband was within his presеnce." Lee v. State,
Application of the Law to the Evidence in this Case
This is a case of joint possession, i.e., a bill addressed to Edmond and identification belonging to Edmond were found in a bedroom, a juvenile female was fоund in a bedroom, and there was evidence that another man claimed the house was his. Consequently, Edmond's knowledge of the drugs and paraphernalia and his ability to cоntrol the same could not be inferred, but had to be established by independent evidence. The authority upholding a constructive possession conviction in the casе of a defendant's joint possession of the premises where the drugs or contraband were found in plain view and in a common area are of no help to the State here because there was no evidence that the drugs and contraband were found in plain view in a common area. The drugs and paraphernalia found in the utility room were hidden in a cubby hole or crawl space. While cocaine was also found in the bedroom, the testimony failed to establish it was found in plain view.
The Statе, then, needed something else to tie or link Edmond to the drugs and paraphernalia and establish his knowledge of the items and ability to control the same. And, because this was a circumstantial evidence case, the State was required to present evidence establishing not only every element of the crime, including Edmond's knowledge of and ability to control the drugs, but also evidence inconsistent with Edmond's reasonable hypothesis of innocence, i.e., that he had no knowledge of the contraband and it belonged to another. See Gibson v. State,
While Edmond's identification and a bill were found in a bedroom where drugs and money were also found, there was no evidence as to where these items wеre found *347 in relation to the drugs and money and no evidence that any other personal affects belonging to Edmond were in the room. And, at least two other people had access to the home. As for the drugs and paraphernalia in the utility room, the only evidence that could possibly suggest Edmond had knowledge of the drugs and contrаband and the ability to control the same was the fact that the cocaine was wet, suggesting it had recently been cooked, and Edmond's attempt to flee at the sight оf police. In the end, though, we believe this evidence was insufficient. There was no testimony regarding how long cocaine stays wet after cooking from which a timeline could be established to demonstrate that the cocaine was so recently cooked and placed in the cubby hole that Edmond must have had knowledge of it. For instance, if cocaine stays wet for fifteen minutes after cooking, then this certainly is more suggestive of knowledge on Edmond's part than if it stays wet for two days. This, then, leaves only Edmоnd's flight, which is insufficient to prove constructive possession. See Agee v. State,
Having concluded that the evidence was insufficient to sustain Edmond's convictions, we reverse the same. Our resolutiоn of the sufficiency of the evidence issue in favor of Edmond renders his second point on appeal moot.
Reversed.
POLEN and TAYLOR, JJ., concur.
NOTES
Notes
[1] In 2002, the legislature eliminated knowledge of the illicit nature of the substance as an element of the offense. See Lee,