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S. S. v. State

Florida Court of Appeals, First District

May 17, 2018

S. S., a child, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Leon County. Robert E. Long, Judge.

          Andy Thomas, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General, Steven E. Woods, Assistant Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.

          PER CURIAM.

         Affirmed. See Brown v. State, 428 So.2d 250, 252 (Fla. 1983); Bradshaw v. State, 509 So.2d 1306 (Fla. 1st DCA 1987).

          Lewis and Osterhaus, JJ., concur.

          Makar, J., concurring.

         The biblical injunction to flee from, and not keep company with, bad influences applies to college dormitories, where the close proximity of ne'er-do-well roommates and after-hours verboten jollities meld, raising the question: who possessed the marijuana and mason jar on the anteroom table in the downstairs "common area" in a compact four-bedroom townhouse located in Edith McCollum Hall[1] on the Florida State University campus at 4:10 a.m. on October 23, 2016?

         When FSU Officer Cherry Martina responded to a complaint from dorm staff of loud music and marijuana fumes wafting from the townhouse (staff had intervened earlier, but their requests to tone it down were ignored), she immediately smelled the pungent aroma in the hallway leading to the townhouse. It grew much stronger when a resident of the townhouse opened the downstairs entry door. Just inside, the officer saw a table, couch, chairs, and video screen in the "common area, " which was strewn with beer bottles, beer cans, marijuana "shake" in a mason jar, [2] cigarette wrapper casings (from which tobacco had been removed), and a bottle cut and shaped into a smoking apparatus.[3] Five young men-four playing videogames and all appearing to be "under the influence" of drugs or alcohol-were present in the "common area, " each disclaiming use or ownership of the contraband (one had a "grinder" in his pocket, which he claimed was not his). As citations for possession of marijuana were being written, an offer was made by the group that they play "rock, paper, scissors to see who could take the charge."

         S.S., a seventeen-year-old co-resident of the townhouse, was charged with possession of cannabis and paraphernalia.[4] S.S., who the arresting officer said had bloodshot eyes and delayed speech and movement (though she couldn't say precisely from what substance), denied that the marijuana or mason jar were his. At trial, a roommate-who was playing videogames with his friends before the officer arrived-testified that S.S. neither used nor possessed the marijuana and mason jar; instead it was the roommate and his three buddies who did so (they'd been toking all day). The roommate avowed that he'd never seen S.S. possess marijuana or drug paraphernalia at any time and that S.S. was never present when the marijuana's use occurred in the townhouse. On the evening in question, S.S. was "probably like getting ready for bed, like eating or something. Like the dorm is two stories, so like he could have been there but not been like downstairs . . . ." Consistent with his testimony on this point, the officer who entered the townhouse said that S.S. was downstairs but towards the back of the room by the stairwell that led to the second floor bedrooms.

         At the close of evidence in the bench trial, S.S. moved for a judgment of dismissal, his attorney arguing:

[S.S.] was not at any time in possession of these items. He was not aware of these items. And he did not have the ability to exercise dominion and control over them. Simply because he's a resident of the home occupied by four different people, and clearly with the number of visitors, does not indicate that he had knowledge or the ability to exercise dominion and control. And an inference is not necessary where direct evidence to the contrary has been presented.

         The trial court denied the motion (but made no factual findings), found S.S. guilty of possession of cannabis and paraphernalia, withheld adjudication of ...


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