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Florida Appellate Court rules that being in a room with others

Florida Appellate Court rules that being in a room with others who are smoking marijuana and in which bags of marijuana were found, is not sufficient to establish that the defendant possessed marijuana.

The case of M.D. v. State, 35 Fla. L. Weekly D610 (Fla. 4th DCA March 17, 2010) involved an appeal of a minor from his adjudication of delinquency for possession of marijuana under 20 grams. The evidence at trial from the arresting officer was that upon arriving at a vacant residence, the officer observed that the door to a small utility room in the back of the residence was open. When the officer got within two or three feet of the door he smelled marijuana and then looked inside the utility room and found four individuals, including the minor, M.D. One of the individuals was smoking marijuana in the room and according to the officer, M.D. smelled like marijuana. Upon the police officer's approach, two individuals in the room dropped bags containing a leafy green substance which the officer suspected was marijuana. Additional bags of marijuana were recovered from the room and from one of the other individuals. No marijuana was found in M.D.'s actual possession nor was he seen dropping a bag containing marijuana. The officer also found loose tobacco in the corner of the utility room. The officer testified that he believed that the tobacco had been removed from a cigar so that the tobacco leaves could be used to wrap marijuana. His testimony was apparently offered without objection. The officer also testified there were no cigarettes or packages of loose tobacco found in the room.

The other item of significance was that M.D. after having been read his Miranda rights, told the officer that he was "there to smoke" and that "we just used the shed to smoke." The Defendant's position at trial was that the evidence which was entirely circumstantial did not rebut his theory of defense that he was smoking tobacco not marijuana.

The court reviewed the law in Florida. It noted that since M.D. was not in actual possession of the marijuana, the state had to prove that M.D. was in constructive possession of the drug. See J.G. v. State, 881 So. 2d 25, 26 (Fla. 4th DCA 2004).

The court went on to note what is required to prove constructive possession. The state must prove that the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over the drug. Martoral v. State, 946 So. 2d 1240, 1242 (Fla. 4th DCA 2007). When drugs are found on the premises, not in the defendant's exclusive possession, the defendant's mere proximity to the drug is not enough to prove that he constructively possessed them. Earle v. State, 745 So. 2d 1087, 1089 (Fla. 4th DCA 1999). In such circumstances the state must present independent proof of the defendant's knowledge and ability to control the drug.

Describing what proof would meet this requirement, the court referred to the Earlecase for the proposition that actual knowledge of the drug's presence, evidence of incriminating statements or actions or other circumstances from which a jury might lawfully infer that the defendant's actual knowledge of the presence of the drugs can be utilized. Earle at 1089.

The court went on to note however that no matter how strong the evidence may suggest guilt, a conviction cannot stand unless the evidence is inconsistent with every reasonable hypothesis of innocence when proof of guilt is circumstantial. State v. Law, 559 So. 2d 187, 188 (Fla. 1989).

The question in this case was whether M.D.'s statement in combination with the other evidence would conclusively refute the theory that he was smoking tobacco and not marijuana.

The court recognized that the state was relying upon M.D.'s statement that he was "there to smoke."

In analyzing this issue the court in M.D. v. State, discussed earlier decisions includingJ.S.M. v. State, 944 So. 2d 1143 (Fla. 2d DCA 2006) which held evidence insufficient when the defendant was found with three other people in a hotel room smelling of marijuana and in which three bags of marijuana were found in plain view.

The court also cited to J.M. v. State, 877 So. 2d 806 (Fla. 5th DCA 2004) where it was held that when an officer found a baggie of marijuana on the ground near the defendant's foot, such evidence was insufficient to prove possession. The Court also cited to J.A.C. v. State, 816 So. 2d 1228 (Fla. 5th DCA 2002) where the evidence was held insufficient when a defendant was a passenger in a car that smelled like marijuana and marijuana residue was found in the car and a small marijuana cigar was found in the ashtray on the passenger's door.

The court in M.D. reversed the adjudication of delinquency because the evidence was not inconsistent with reasonable hypothesis of innocence put forth by M.D. that he was smoking tobacco. The court noted that the smell of marijuana does not foreclose the possibility that M.D. was smoking tobacco while others were smoking marijuana. The state also failed to explain the tobacco found on the floor and exclude its presence in its argument. The court also noted that the tobacco cigarettes were not found does not carry much significance.

Charges against minors as well as adults for possession of marijuana are common. Often an individual may be standing in a room where others are possessing and smoking marijuana and yet not partake in such conduct. This case provides another example of where a vigorous defense can result in a successful conclusion to a charge of possession of marijuana.