Opinion
No. 98-1540
Opinion filed May 5, 1999.
An appeal from the Circuit Court for Escambia County; Terry D. Terrell, Judge.
Nancy A. Daniels, Public Defender; Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General; Denise O. Simpson, Assistant Attorney General, Tallahassee, for Appellee.
In this direct criminal appeal, appellant seeks review of his conviction, following a non-jury trial, for possession of cocaine with intent to sell. He argues that the trial court should have granted his motion for a judgment of acquittal because the state based its case upon a theory of constructive possession, but failed to establish all of the essential elements. We agree. To establish constructive possession in a case such as this, the state is obliged to prove that the defendant (1) knew of the presence of the drugs; (2) knew of the illicit nature of the drugs; and (3) had or shared dominion and control over the drugs.Brown v. State, 428 So.2d 250 (Fla. 1983). We conclude that, viewed in a light most favorable to the state, the evidence presented at trial was legally insufficient to prove that defendant knew of the presence of the drugs. Accordingly, the trial court should have granted appellant's motion for a judgment of acquittal.
Appellant's conviction is reversed, and the case is remanded with directions that the trial court vacate the conviction and sentence and enter a judgment of acquittal.
REVERSED and REMANDED, with directions.
JOANOS and WEBSTER, JJ., CONCUR; BOOTH, J., DISSENTS WITHOUT OPINION.