In Smith v. State, 38 Fla. L. Weekly D2172b (Fla. 2nd DCA 2013), Smith sought review of his judgment and sentence for possession of a controlled substance (oxycodone) and possession of paraphernalia. Smith argued that the trial court erred in denying his motion for judgment of acquittal because the state failed to present sufficient evidence to establish Smith’s constructive possession of the controlled substance and paraphernalia.
The facts of the case indicate that an officer conducted a traffic stop of a truck Smith was driving based on an expired tag. Smith fumbled with items behind the visor and appeared nervous. The trial court found that his repeated fumbling and his nervousness provided independent proof of his knowledge and control over the oxycodone and paraphernalia. The only evidence suggestive of Smith’s dominion and control over the oxycodone pills was Smith’s nervousness upon being stopped. However, the Second District Court of Appeal found that nervousness itself did not provide legally sufficient evidence of dominion or control. Therefore, the Appellate Court found that there was insufficient evidence to sustain Smith’s conviction for possession of a controlled substance.
