What Does The Prosecution Need To Establish In Order To Obtain A Conviction For The Constructive Pos

By Author: Christian Rodrique
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In Smith vs. State, the Court of Appeal partially upheld and partially reversed the lower court's judgment & sentence for possession of a scheduled controlled substance as well as possessing paraphernalia. A police officer pulled over the vehicle driven by the defendant, based upon an expired license tag. A female was traveling in the front passenger seat in the truck. The police officer approached the truck & demanded defendant's license and registration. The driver appeared nervous & began fumbling in the area behind the visor which was located over the driver's seat.

The officer took him & also the female passenger out of the vehicle and placed defendant under arrest. . . . The police officer then executed a search of the vehicle in order to ascertain the contents . . . & found illegal items in 3 separate locations, the items included two oxycodone tablets & an eyeglass case that held syringes as well as a spoon covered in an unknown residue behind the defendant's visor. The 2nd District Court of Appeal noted that because defendant was not in actual possession of the contraband or ...
... drug paraphernalia, the State was required to prove the defendant's possession of these items under a theory of constructive possession of the contraband. To prove constructive possession, the State had to prove beyond a reasonable doubt that the defendant had actual knowledge of the presence of the illegal items in addition to dominion & control over it. The 2nd District Court based its ruling upon the court's prior ruling in the case of Gizaw v. State. The court of appeal stated that "[t]he only information suggestive of defendant's ability to exercise dominion and control over the drugs was his nervousness after being pulled over. However, nervousness alone fails to provide legally sufficient proof of the ability to excersise and/or due to the fact that it could possibly be attributed to the fact that the defendant's truck had been stopped or that the defendant was in possession of the paraphernalia. . . . Accordingly, there was insufficient proof to uphold the defendant's conviction for possession of a scheduled controlled substance. The 2nd District Court based its ruling upon the court's prior decision in the case of Hargrove v State in support of its position. On the other hand, the court found that there was sufficient evidence related to the conviction for the crime of drug paraphernalia & affirmed that criminal conviction.

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