Dubose v. State
1990 WL 48660, 560 So. 2d 323 (1990)
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Rule of Law:
To prove constructive possession of contraband against a visitor, the state must show more than mere proximity; incriminating statements by the defendant about their intent to use the contraband can provide the necessary evidence. For items that are not inherently illegal (i.e., drug paraphernalia), the state must prove the defendant's specific intent to use them for an illicit purpose.
Facts:
- An acquaintance invited Antonio Dubose to an apartment in Pensacola.
- Approximately two to three minutes after Dubose entered a bedroom, narcotics investigators arrived.
- Dubose was standing within arm's reach of a coffee table holding a piece of crack cocaine, two razor blades, and a crushed beer can.
- A rolled cigarette containing marijuana and cocaine was on a pile of clothes in an open closet, also within Dubose's arm's reach.
- Police found a case of cigarette rolling papers on Dubose's person.
- Upon arrest, Dubose stated the drugs were not his but that he had gone to the apartment to smoke.
- At the police station, Dubose stated a woman invited him to smoke crack, an opportunity he would not pass up, and that he intended to sell the rolling papers.
Procedural Posture:
- Antonio Dubose was tried in a Florida trial court on charges of possession of cocaine, cannabis, and drug paraphernalia.
- A jury found Dubose guilty on all counts.
- Dubose, as appellant, appealed his convictions to the District Court of Appeal of Florida, First District, against the State of Florida, the appellee.
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Issue:
Is the evidence legally sufficient to support a conviction for constructive possession of drugs and drug paraphernalia when the defendant, a visitor in an apartment, is found in close proximity to the items and makes incriminating statements about his intent to use the drugs, but not the paraphernalia?
Opinions:
Majority - Ervin, J.
Yes, as to the drugs; No, as to the drug paraphernalia. A visitor's mere proximity to contraband is insufficient to prove constructive possession, but Dubose's proximity coupled with his incriminating statements established his knowledge and ability to exercise control over the drugs. The jury was justified in finding he constructively possessed the cocaine and marijuana based on his statement that he went to the apartment to smoke and would not pass up the opportunity. However, the evidence was insufficient for the paraphernalia charge. Dubose made no incriminating statements about intending to use the razor blades or crushed beer cans, so his proximity to them was not enough to overcome a reasonable theory of innocence. Regarding the rolling papers found on his person, his stated intent to sell them was a theory of innocence that the state failed to disprove; the state did not present evidence that the papers were designed exclusively for illicit use, which would be required in the absence of evidence of his intent to use them illegally.
Analysis:
This case clarifies the evidentiary requirements for proving constructive possession, particularly for non-occupants. It establishes that a defendant's own incriminating statements can serve as the crucial 'plus factor' needed to link them to nearby contraband, elevating mere proximity to legally sufficient evidence of possession. The decision also draws a sharp distinction between contraband per se (illegal drugs) and potential paraphernalia, reinforcing that for common items, the state bears a heavy burden to prove specific illicit intent, which cannot be inferred solely from proximity to drugs.
