Opinion
Case No. 5D19-2382
06-12-2020
STATE of Florida, Appellant, v. Ayinde PAUL, Appellee.
Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellant. Thomas J. Butler, of Thomas Butler, P.A., Miami Beach, for Appellee.
Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellant.
Thomas J. Butler, of Thomas Butler, P.A., Miami Beach, for Appellee.
LAMBERT, J.
The State of Florida appeals the trial court's order granting Appellee's Florida Rule of Criminal Procedure 3.190(c)(4) motion to dismiss charges of trafficking in methamphetamine, twenty-eight grams or more, and armed trafficking in heroin, four grams or more. The court found that the undisputed facts did not establish a prima facie case that Appellee had constructive possession of either controlled substance or of the firearm. It also found that there was "no evidence of the knowledge element to support the Constructive Possession charges." We reverse.
Following a months-long investigation by law enforcement of a drug trafficking ring operating out of Orlando, Florida, Appellee was one of eleven individuals charged in a multi-count information involving, for the most part, trafficking in controlled substances. Pertinent to the two charges at issue here, Appellee and one of his codefendants had just driven away from a home following what law enforcement believed was a consummated drug transaction with a known drug distributor. Shortly thereafter, their vehicle was stopped for various traffic infractions. Appellee was the front seat passenger, and one of the codefendants was the driver.
Upon the officers detecting an odor of cannabis, the vehicle was searched, and the officers found a black backpack on the passenger side floor, right next to Appellee's feet. The backpack, identified as Appellee's in the police report, contained a bag with a white substance that tested presumptively positive for methamphetamine together with a firearm and ammunition. Another bag containing a trafficking amount of heroin was located on the passenger floorboard. Also confiscated during the search was a purse located between the front passenger seat and the center console containing a trafficking amount of methamphetamine. Appellee was then searched, and he had $400 cash in one of his pants pockets.
Appellee moved to dismiss the two charges pending against him under rule 3.190(c)(4). This rule provides that the trial court may at any time entertain a motion to dismiss on the ground that "[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant." Fla. R. Crim. P. 3.190(c)(4). In his sworn motion, Appellee asserted that he was not in actual possession of the heroin, methamphetamine, or firearm that were found during the search of the vehicle and that there was no evidence supporting the knowledge element of constructive possession. See Hively v. State , 336 So. 2d 127, 129 (Fla. 4th DCA 1976) ("Constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance." (citing Willis v. State , 320 So. 2d 823, 824 (Fla. 4th DCA 1975) (additional citations omitted))). Appellee maintained that none of the State's witnesses indicated having any knowledge that Appellee was in actual possession of the controlled substances and that at no time did he make any admission, confession, or statement whatsoever acknowledging ownership, knowledge, possession, dominion, or control of any of the controlled substances confiscated from the vehicle.
The State filed a traverse to the motion to dismiss. Under Florida Rule of Criminal Procedure 3.190(d), if the State files a traverse that, with specificity, denies under oath the material facts alleged in the motion to dismiss filed under subdivision(c)(4), then the motion must be denied. In its traverse, the State disputed Appellee's assertions in his motion that law enforcement did not observe him being involved in a drug transaction or having possession of the controlled substances. The State related that through intercepted wiretap phone calls between the codefendant driver and a third person, together with its surveillance, law enforcement developed probable cause that Appellee and his codefendant were traveling to a known drug distributor's residence to consummate a drug transaction. Law enforcement observed Appellee's codefendant enter the house, return to the vehicle after a short period of time, and then drive away with Appellee. Not long thereafter, their vehicle was stopped by law enforcement, and the subsequent search of the vehicle revealed the controlled substances previously described.
Appellee briefly testified at the motion to dismiss hearing. He attested to the truthfulness of the matters in his motion and did not dispute the substance of the aforementioned phone calls. The State put forth no testimony at the hearing. Following argument of counsel, the trial court dismissed the charges, finding no evidence that Appellee had knowledge of the controlled substances so as to establish a prima facie case of constructive possession.
The appellate standard of review of an order granting a rule 3.190(c)(4) motion to dismiss is de novo. See State v. Santiago , 938 So. 2d 603, 605 (Fla. 4th DCA 2006). To facilitate this review, we apply the following germane principles. First, "the State is entitled to the most favorable construction of the evidence, and all inferences arising from the facts contained in both the motion to dismiss and the traverse must be resolved in favor of the State and against the defendant." State v. Gay , 960 So. 2d 864, 867 (Fla. 2d DCA 2007) (citing State v. Ortiz , 766 So. 2d 1137, 1142 (Fla. 3d DCA 2000) ; State v. Dickerson , 811 So. 2d 744, 746 (Fla. 2d DCA 2002) ).
Second, "[i]n considering a (c)(4) motion the trial judge may not try or determine factual issues nor consider the weight of conflicting evidence or the credibility of witnesses." State v. Cadore , 59 So. 3d 1200, 1203 (Fla. 2d DCA 2011) (quoting State v. Lewis , 463 So. 2d 561, 563 (Fla. 2d DCA 1985) ). Next, a trial court must not grant a motion to dismiss criminal charges merely because it concludes that the case will not survive a motion for judgment of acquittal. Id. (citing State v. Paleveda , 745 So. 2d 1026, 1027 (Fla. 2d DCA 1999) ). Lastly, "the burden is on the defendant to show that the undisputed facts either (1) fail to establish a prima facie case, or (2) establish a valid defense." State v. Carry , 75 So. 3d 803, 804–05 (Fla. 5th DCA 2011) (citing State v. Reese , 774 So. 2d 948, 949 (Fla. 5th DCA 2001) ). If the barest prima facie case exists, dismissal is improper. State v. Searles , 264 So. 3d 286, 287 n.1 (Fla. 1st DCA 2019) (quoting State v. Bonebright , 742 So. 2d 290, 291 (Fla. 1st DCA 1998) ).
Here, the parties concede that the State was pursuing a constructive possession case against Appellee. "[A]s a general proposition, ‘the issue of knowledge, as an element of constructive possession, is an ultimate question which a jury must decide on factual inferences; it is not subject to a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4).’ " Gay , 960 So. 2d at 868 (quoting State v. Duran , 550 So. 2d 45, 46 (Fla. 3d DCA 1989) ); see also Carry , 75 So. 3d at 805 ("[I]t has been found that because knowledge in a possession case is a question of fact, that element is generally not a proper consideration on a motion to dismiss." (citations omitted)).
We see no reason to depart from this general proposition here. Construing the evidence contained in Appellee's motion and the State's traverse and all inferences derived therefrom in favor of the State, Appellee and the codefendant specifically traveled to a known drug distributor's home to consummate a drug transaction. Shortly thereafter, the vehicle in which Appellee and his codefendant were traveling was stopped and searched. A firearm, ammunition, and a bag containing a white substance that tested presumptively positive for methamphetamine were found in Appellee's backpack at his feet on the passenger side floor. A bag containing heroin was located on the passenger floorboard. Methamphetamine was found right next to Appellee, between his seat and the center console. Contrary to the trial court's determination, this evidence, construed most favorably towards the State, does not, as a matter of undisputed fact, establish that Appellee lacked knowledge of the presence of the previously-described trafficking amounts of heroin and methamphetamine found next to him and did not have the ability to maintain control over these controlled substances. We therefore conclude that the trial court erred in determining that there was no prima facie case of constructive possession. The order dismissing the charges is reversed.
REVERSED and REMANDED for further proceedings.
EDWARDS and EISNAUGLE, JJ., concur.