final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 16-392 Orlando A. Prescott, Judge.
J. Martinez, Public Defender, and Howard K. Blumberg, Special
Assistant Public Defender, and Jessica Biedron and Meagan
Sanchez, Certified Legal Interns, for appellant.
Jo Bondi, Attorney General, and Kayla H. McNab and Nikole
Hiciano, Assistant Attorneys General, for appellee.
ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.
juvenile, appeals the trial court's order withholding
adjudication of delinquency and placing him on probation
after D.V. was found guilty of being a minor in possession of
a firearm. We reverse because the evidence presented by the
State was insufficient to prove D.V. had actual or
constructive possession of the firearm.
State charged D.V. with being a minor in possession of a
firearm, in violation of section 790.22(3), Florida Statutes
(2016), and filed a petition for delinquency. The evidence
presented at the adjudicatory hearing established that on
February 16, 2016, about 2:30 p.m., two City of Miami Gardens
Police Department detectives were on patrol in an unmarked
police vehicle. They were driving westbound on 180th Street
when one of the detectives, Detective Buchanan, looked to the
right and saw a male standing on the outside of a white
five-passenger Audi vehicle. The male was speaking to the
front-seat passenger of the Audi. Detective Buchanan saw
three juveniles seated inside the vehicle. D.V. was sitting
in the back seat, on the passenger side, of the Audi, which
was parked in a residential area in the front of the home of
the male who was standing outside the vehicle. The detectives
did not see anyone moving inside the vehicle. The detectives
did not stop but continued to drive around the block and back
to the residence where the Audi was parked. The detectives
then stopped behind the Audi, activated their lights and
sirens, and radioed in the traffic stop, at which point the
male that had been standing outside the car ran into the
house and stayed standing at the door.
Buchanan testified that while still sitting in the police
car, she had a clear view of the rear of the vehicle and
could see one person in the driver's seat, one person in
the front passenger's seat, and D.V. seated in the rear
passenger's seat behind the front passenger. Detective
Buchanan approached the driver's side of the Audi and saw
that D.V. remained seated and made no movement of any kind
inside the vehicle. Detective Buchanan was standing next to
the rear driver's side door, when she looked through the
open car window and saw a gun on the back seat behind the
driver's seat, located near to where D.V. was seated.
Detective Buchanan testified the gun was "like two or
three feet" away from D.V. Detective Torres testified
the gun was approximately six or twelve inches from
D.V.'s leg. The trial court determined the weapon
"was found either within a foot or two of [D.V.] near
his thigh in the back seat . . . ."
Buchanan alerted Detective Torres that there was a gun in the
vehicle. Detective Torres, who had been approaching the
vehicle, drew his weapon. Detective Buchanan then reached
into the vehicle to secure the firearm. Detective Torres
opened the rear passenger door, grabbed D.V., and arrested
him. The two other juveniles were not arrested, and the
detectives did not speak to the male who ran into the house.
No evidence was presented that D.V., who was
fifteen-years-old at the time, was the owner of the vehicle.
firearm was operable and loaded, but the firearm was never
tested to see if D.V.'s fingerprints were on it. D.V. was
cooperative and voluntarily provided a DNA sample. He did not
make any statements to the detectives.
the State rested its case, D.V. moved for a judgment of
dismissal on the charge of a minor in possession of a
firearm, contending that the State failed to establish the
essential element of D.V.'s control or dominion over the
firearm. The trial court denied the motion and thereafter
adjudicated D.V. delinquent. D.V. now appeals.
trial court's denial of the motion for judgment of
dismissal is reviewed de novo. W.B. v.
State, 179 So.3d 411, 412-13 (Fla. 3d DCA 2015).
"The evidence must be viewed in the light most favorable
to the State." R.R.W. v. State, 915 So.2d 633,
635 (Fla. 2d DCA 2005). We find the trial court erred in
denying D.V.'s motion for judgment of dismissal because
there was insufficient evidence to prove that D.V. had
dominion or control over the firearm.
prove actual or constructive possession of contraband, the
State must prove the defendant had control over the
contraband. G.G. v. State, 84 So.3d 1162, 1164 (Fla.
2d DCA 2012). To establish actual possession, the State must
prove "the contraband is (1) in the defendant's hand
or on his person, (2) in a container in the defendant's
hand or on his person, or (3) within the defendant's
'ready reach.'" Sundin v. State, 27
So.3d 675, 676 (Fla. 2d DCA 2009). The State must also prove
the contraband was under the defendant's control.
Id. In order to prove constructive possession, the
State is required to prove the defendant had (1) dominion and
control over the contraband, as well as (2) knowledge that
the contraband was within the defendant's presence.