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D.V. v. State

Florida Court of Appeals, Third District

May 2, 2018

D.V., a Juvenile, Appellant
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 16-392 Orlando A. Prescott, Judge.

          Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special Assistant Public Defender, and Jessica Biedron and Meagan Sanchez, Certified Legal Interns, for appellant.

          Pamela Jo Bondi, Attorney General, and Kayla H. McNab and Nikole Hiciano, Assistant Attorneys General, for appellee.

          Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.

          FERNANDEZ, J.

         D.V., a 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.

         The 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.

         Detective 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 . . . ."

         Detective 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.

         The 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.

         After 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.

         The 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.

         To 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. Knight ...


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