County Case No. MM98-038694A-XX
Appeal No. AA-60
July 7, 2000

STEVEN GELLERSTEDT,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

This is an appeal from the county court of Polk County, Judge Steven Selph presiding. Appellant, Steven Gellerstedt, appeals the judgment and conviction below, and claims that the trial judge failed to adequately inquire regarding his waiver of counsel. This court has jurisdiction. Fla. R. App. P. 9.030(c). The ruling of the county court is affirmed.

Appellant appeared in county court for arraignment on a battery charge. The county judge informed Appellant and the others present of their right to counsel, and the right to a jury trial. Appellant entered a not guilty plea. Appellant had not spoken to an attorney and responded to the court that he did not intend to hire an attorney. The judge asked about Appellant’s level of education and whether he had ever represented himself. Appellant stated that he believed that he could represent himself in a non-jury proceeding.

On appeal, Appellant argues that the judge failed to adequately inquire regarding his waiver of the right to counsel.

In the proceeding below, the State made a case of constructive possession. The elements of constructive possession are: (1) knowledge of the presence of the contraband; (2) control and dominion over the contraband; and (3) knowledge of the illicit nature of the contraband. See S.B. v. State, 657 So. 2d 1252, 1253 (Fla. 2d DCA 1995). Because the evidence against an accused consists exclusively of circumstantial evidence, the reviewing court must determine "whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt." State v. Law, 559 So. 2d 187, 189 (Fla. 1989). When reviewing a motion for judgment of acquittal, the trial court must determine whether evidence presented by the prosecution is inconsistent with the defendant’s theory of innocence. See Law, 559 So. 2d at 188.

In Lynch v. State, the defendant stood trial for attempted rape. 293 So. 2d 44 (Fla. 1974). Because of the language of their pleading, the State had to prove the attack occurred between 1:00 a.m. and five a.m.. The victim testified, but she failed to recall the time of the attack. The defendant presented evidence that tended to show he was elsewhere during that time and could not have committed the crime. The defendant motioned the court for judgment of acquittal claiming that the state failed to prove the element of time. The trial court denied the judgment of acquittal reasoning that the evidence was inconsistent with the defendant’s alibi, but sufficient to present a jury question. Id. at 45. On review, the Supreme Court stated:

A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge. The credibility and probative force of conflicting testimony should not be determined on a motion for judgment of acquittal.

Id., (emphasis added). The Court noted that the jury had the opportunity to observe the demeanor and weigh the credibility of witnesses. Further, the record established that the State presented ample evidence showing the time of the attack beyond a reasonable doubt. The trial court properly denied the motion. Id. at 46.

In Wilson v. State, a jury returned guilty verdicts against the defendant for two counts of first degree murder in the shooting death of his father and the stabbing death of his five year-old cousin, plus one count of attempted first degree murder against his stepmother. 493 So. 2d 1019, 1020 (Fla. 1986). The defendant beat his stepmother with a hammer after she told him to stay out of the refrigerator. When the defendant’s father intervened, the defendant attacked him with the hammer and subsequently shot him. During the course of the argument, the defendant and his father struggled over a pair of scissors, and his five year-old cousin was fatally stabbed. The defendant motioned for judgment of acquittal claiming that the state presented insufficient evidence to support a conviction of first degree premeditated murder of his father and cousin. The defendant claimed he shot his father in self-defense during a heated domestic argument in which his cousin was accidentally stabbed.

After a careful review of the evidence, the Supreme Court held that the State presented evidence which was inconsistent with the defendant’s theory of his innocence, and sufficient to present a question for the jury. Id. at 1022. Forensic evidence showed that the defendant stood over his father and shot him in the forehead. However, the State’s theory of transferred intent of first degree murder of the cousin was not established by the evidence. In reversing the first degree murder in the cousin’s death, the Supreme Court noted that the State presented no evidence that the defendant had the requisite intent to kill the father at the moment the cousin was stabbed. Id. at 1023.

In State v. Law, a jury found defendant guilty of first degree murder of his girlfriend’s child by blunt trauma to the head. 559 So. 2d 187 (Fla. 1989). Defendant motioned the court for judgment of acquittal and raised several alternative theories of innocence consistent with accident, and an intentional beating by the girlfriend. The state showed that the injury to the child’s head could not have happened by accident, and that the defendant was the last person seen with the child. The district court reversed the trial court’s order denying the motion. The Supreme Court of Florida reversed. The Court held that the common law circumstantial evidence rule applies when a trial judge rules on a motion for judgement of acquittal and that the trial judge must determine whether the state presented evidence to contradict the defendant’s story. Id. at 189. When the State fails to present such evidence, then the trial judge has a duty to grant the judgment of acquittal. Id.

In S.B. v. State, the Second District Court of Appeal addressed the sufficiency of evidence in a constructive possession charge. 657 So. 2d 1252 (Fla. 2d DCA 1995). When police pulled over a car for a broken tail light, the defendant was among several teens returning from a day at a local theme park. Police searched the vehicle and found a closed container inside a grocery bag containing wet clothes. The defendant admitted that he owed the grocery bag and some of the clothing, but denied that he owned the container and one shirt. Police took no prints from the container, and made no inventory of the bag. The district court reversed the trial court order denying the motion of judgment of acquittal because the state failed to present evidence which was inconsistent with the defendant’s theory of innocence.

Similarly, in Futch v. State, the trial court denied a motion for judgment of acquittal. The Second District Court of Appeal reversed because the state failed to establish that the substance in the defendant’s possession was contraband. 744 So. 2d 540 (Fla. 2d DCA Fla. 1999). Police conducted a field test and FDLE laboratory tests, but both were negative for controlled substance. The State did not present any other evidence to show that the substance was contraband. In the absence of absence of evidence which is inconsistent with the defendant’s theory if innocence, the court must grant a motion for judgment of acquittal.

In the matter before this court, Thompson argues that the State’s evidence is insufficient to support a conviction for constructive possession. The jury below heard conflicting testimony concerning all three elements. The State presented evidence which tended to show that Thompson knew of, and asserted control over the marijuana by sitting on it. He manifested his knowledge of the illicit nature of the substance by moving in a manner which suggested that he was trying to conceal something. Conversely, Thompson testified that the officer searched him earlier and found nothing. He explained his movements as his efforts to get into a more comfortable position and adjust his handcuffs. This court finds that the state has presented evidence which is inconsistent with Thompson’s theory of innocence, and that the jury had ample evidence from which to conclude beyond a reasonable doubt, that the contraband found in the police car belonged to Thompson.

Accordingly, it is ORDERED that the judgement and sentence of the county court are AFFIRMED.

ORDERED 27 July 2000.

Charles B. Curry

Chief Judge