381 So. 2d 342 | Fla. Dist. Ct. App. | 1980
After a jury trial, the defendant-appellant was adjudicated guilty of possession of heroin and of over five grams of marijuana. We affirm the heroin conviction but order that the felony marijuana charge be reduced to a misdemeanor.
Johnson and two females were all occupying a three-room apartment in a motel in Key West when police officers arrived to serve a subpoena duces tecum on him. In an admittedly proper manner, the officers found inside the apartment: (a) 67 packets of heroin and less than a gram of marijuana in a bag within an opened suitcase in the' bedroom; (b) 1.6 grams of marijuana contained in three cigarettes on a night stand; and (e) 45.8 grams of marijuana in an “Avon” bag located in the kitchen, near one of the women. In this proceeding, the defendant does not dispute the sufficiency of the evidence of his possession of the heroin or the marijuana cigarettes. He claims otherwise, however, as to the marijuana in the Avon bag. We agree with this position.
Simply stated, the evidence is entirely inadequate to establish that Johnson had both (1) knowledge of, and (2) the ability to control the “Avon” cannabis, as required to establish criminal possession. See Cohen v. State, 125 So.2d 560 (Fla.1960); Winchell v. State, 362 So.2d 992 (Fla.3d DCA 1978); State v. Scarborough, 170 So.2d 458 (Fla.2d DCA 1965). Both these elements must be established by some' specific sufficient proof when, as in this case, contraband is found on premises which are not within the defendant’s exclusive possession but are shared with others. See the recent and comprehensive opinion in Thompson v. State, 375 So.2d 633 (Fla.4th DCA 1979), and cases cited. Apart from relying upon inferences from circumstantial evidence which we consider woefully insufficient,
There is no error presented by the defendant’s other point, which seeks reversal of both convictions because of alleged Williams
Accordingly, the judgment and sentence for possession of heroin are affirmed, the felony marijuana conviction is reversed and the cause remanded with directions to adjudicate the defendant guilty of the misdemeanor of possession of less than five grams of cannabis and for re-sentencing accordingly.
Affirmed in part, reversed in part and remanded.
. See Mayo v. State, 71 So.2d 899 (Fla.1954).
. The same is true of a statement attributed to Johnson by one of the women in the apartment. (The other, near whom the Avon bag was found, did not testify.)
. Williams v. State, 110 So.2d 654 (Fla. 1959).