author: NORTHCUTT, Judge.

text:
    Kathy R. FRIEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-387.
    District Court of Appeal of Florida, Second District.
    March 6, 2013.

      Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Kathy Friel argues, and the State concedes, that the trial court could not enter convictions for both grand theft and dealing in stolen property in this ease. See § 812.025, Fla. Stat. (2010) (stating that only one of these convictions may be sustained when both were committed in one scheme or course of conduct); see also Hall v. State, 826 So.2d 268 (Fla.2002). Friel was sentenced to ten years in prison for dealing in stolen property but to only time served for grand theft. Both parties agree that the proper remedy in this case is to vacate the grand theft conviction. See Anucinski v. State, 90 So.3d 879 (Fla. 2d DCA 2012). Accordingly, we reverse the conviction for grand theft.

Reversed and remanded for the trial court to vacate the grand theft conviction.

VILLANTI and MORRIS, JJ., Concur.


source: Caselaw Access Project

author: WALLACE, Judge. BLACK, Judge,

license: Public Domain

text:
    Matthew Lee RANGEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4739.
    District Court of Appeal of Florida, Second District.
    March 8, 2013.

      Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

A jury found Matthew Lee Rangel guilty of possession of cocaine, a violation of section 893.13(6)(a), Florida Statutes (2010), and sale of cocaine within a thousand feet of a place of worship, a violation of section 893.13(l)(e)(l). On appeal, Mr. Rangel challenges his judgment and sentences on two grounds.

We agree with Mr. Rangel that the State failed to present sufficient evidence to establish that he was in constructive possession of cocaine found in a vehicle in which he was merely a passenger. Mr. Rangel’s remaining argument is without merit and does not warrant discussion. Because the trial court erred in denying Mr. Rangel’s motion for judgment of acquittal on the possession charge, we reverse Mr. Rangel’s judgment and sentence for possession of cocaine. We affirm his judgment and sentence for sale of cocaine within a thousand feet of a place of worship.

I. FACTUAL BACKGROUND

On May 20, 2010, Detective Timothy Dugan of the Lee County Sheriffs Office contacted a confidential informant to set up a drug buy. The confidential informant called Mr. Rangel and arranged to buy crack cocaine. Mr. Rangel agreed to the transaction and instructed the confidential informant to meet him in the parking lot of a nearby Taco Bell.

Several minutes later, Mr. Rangel arrived at the specified location in a tan Jaguar accompanied by three others — the driver of the vehicle and two additional passengers. The confidential informant approached the rear passenger window, where Mr. Rangel was seated, and exchanged money for crack cocaine, which the confidential informant described as an aggregation of pieces received from all occupants of the vehicle but handed to him by Mr. Rangel. Detective Dugan observed this entire transaction from a vantage point about one hundred yards away.

After the transaction was complete, the confidential informant delivered the contraband to Detective Dugan, and Detective Dugan instructed Sergeant Mark Sheffield to attempt to stop the Jaguar in which Mr. Rangel was a passenger. Sometime later, Sergeant Sheffield stopped the Jaguar for a window tint violation, although it is unclear how much time elapsed between the transaction and the stop. Nonetheless, at the time of the stop, one of the vehicle’s other three occupants present at the transaction was no longer in the vehicle, and Mr. Rangel had moved to the front passenger seat. As Sergeant Sheffield approached the vehicle, he observed Mr. Rangel rummaging in the vicinity of the floor in front of his seat. Although Sergeant Sheffield noticed Mr. Rangel’s movement, he did not know the purpose of the rummaging, nor did he see Mr. Rangel actually touch anything on the floor. Sergeant Sheffield then asked the occupants to get out of the vehicle and requested consent to search them. The occupants, including Mr. Rangel, agreed to the search, but Sergeant Sheffield did not find any narcotics on their persons.

Shortly thereafter, Deputy Jamie Thorpe arrived with a narcotics-detecting dog, and following a sweep of the vehicle, the dog alerted to the presence of narcotics. Deputy Adam Petrulis, who arrived on the scene as backup, and Sergeant Sheffield then performed a search of the vehicle. During the search, Deputy Pe-trulis found a liquid-filled, pint-size plastic container in a caddy containing car cleaning products. The caddy and its contents were located on the floorboard of the front passenger seat where Mr. Rangel had been sitting. Sergeant Sheffield asked Mr. Rangel to identify the contents of the container. Mr. Rangel suggested that Sergeant Sheffield drink the contents to find out.

Deputy Petrulis opened the container, which emitted a fine, white powder. When asked about the contents of the container, the driver of the car stated that the contents were used for cleaning wheel rims. Using a field testing kit, Sergeant Sheffield analyzed the contents of the container, which tested positive for cocaine. Lab results later identified the liquid contents of the container as including ecgonine, a cocaine derivative. The chemist did not determine the percentage of ecgonine contained in the liquid.

Subsequently, the State charged Mr. Rangel with various offenses but proceeded to trial on charges of trafficking in cocaine and sale of cocaine within a thousand feet of a place of worship. At the close of the State’s case, defense counsel moved for a judgment of acquittal on the charge of trafficking in cocaine. The trial court denied the motion and submitted the case to the jury. The jury returned a verdict finding Mr. Rangel guilty of the lesser-included offense of possession of cocaine on the trafficking charge and guilty as charged on sale of cocaine within a thousand feet of a place of worship. The trial court adjudged him guilty on both charges and sentenced him to five years’ prison on the possession charge and seven years’ prison on the sale charge. The trial court designated the sentences to run concurrently.

II. DISCUSSION

On appeal, Mr. Rangel argues that the evidence presented by the State at trial was insufficient to establish that he constructively possessed the container with ecgonine found in the caddy on the floorboard of the front passenger seat. We agree.

“[T]o establish constructive possession ..., the [State] had to demonstrate (1) that the defendant knew of the presence of the contraband and (2) that he or she had the ability to maintain dominion and control over the controlled substance.” Butera v. State, 58 So.3d 940, 942 (Fla. 2d DCA 2011) (citing Links v. State, 927 So.2d 241, 243 (Fla. 2d DCA 2006)). Moreover, if the premises where the contraband is discovered is in joint rather than exclusive possession of the defendant, mere proximity to the contraband is insufficient to prove constructive possession. Id.; Skelton v. State, 609 So.2d 716, 717 (Fla. 2d DCA 1992). In a joint possession scenario, when proximity to contraband is one factor tending to show constructive possession, “the State must present independent proof of the defendant’s knowledge and ability to control the contraband.” Hargrove v. State, 928 So.2d 1254, 1256 (Fla. 2d DCA 2006).

Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband, or of evidence of incriminating statements and circumstances other than the mere location of the substance, from which a jury might lawfully infer knowledge by the accused of the presence of the contraband on the premises.

Murphy v. State, 511 So.2d 397, 399 (Fla. 4th DCA 1987); see also Brown v. State, 8 So.3d 1187, 1189 (Fla. 4th DCA 2009); Earle v. State, 745 So.2d 1087, 1089 (Fla. 4th DCA 1999).

Here, evidence of Mr. Rangel’s constructive possession includes his location in the front passenger seat when the vehicle was stopped by the police, his rummaging on the floor where the caddy holding the container was found, and his flippant remark to Sergeant Sheffield when asked to identify the contents of the container. Although Mr. Rangel’s location in the front passenger seat shows that Mr. Rangel was near the container, it does not follow from his mere proximity that he knew of its contents, that he placed it there, or that he could exercise dominion and control over it. Moreover, two other persons were in the car when Sergeant Sheffield made the traffic stop. The presence of others creates a joint-possession situation, rendering Mr. Rangel’s mere proximity insufficient, standing alone, to permit an inference of knowledge of the container’s contents or the ability to exercise dominion and control over the container. See Watson v. State, 961 So.2d 1116, 1117 (Fla. 2d DCA 2007); K.A.K. v. State, 885 So.2d 405, 407 (Fla. 2d DCA 2004); D.M.C. v. State, 869 So.2d 575, 576-77 (Fla. 2d DCA 2003); Skelton, 609 So.2d at 717.

Additionally, no independent proof exists connecting Mr. Rangel to the container— no fingerprints, no testimony by the vehicle’s other occupants, and no incriminating statements by Mr. Rangel. See Bennett v. State, 46 So.3d 1181, 1184 (Fla. 2d DCA 2010) (enumerating the type of independent proof required to permit an inference of dominion and control from mere proximity, including pretrial statements of the accused, witness testimony, and scientific evidence); Culver v. State, 990 So.2d 1206, 1209-10 (Fla. 2d DCA 2008) (noting a lack of independent proof because “the State did not present any fingerprint evidence, admissions, eyewitness testimony, or other evidence tending to establish ... dominion and control”); see, e.g., Meme v. State, 72 So.3d 254, 256-57 (Fla. 4th DCA 2011) (finding sufficient evidence of constructive possession in a jointly occupied vehicle when the defendant, in addition to exhibiting nervous behavior and rummaging in an area where narcotics were found, made incriminating statements). Without independent proof of knowledge and ability to control, Mr. Rangel’s location near the contraband is not sufficient to establish constructive possession.

Granted, Mr. Rangel was observed rummaging in the area where the caddy holding the container was found. However, the State’s position, which infers dominion and control from this behavior, “requires an impermissible pyramiding of inferences.” State v. Snyder, 635 So.2d 1057, 1058 (Fla. 2d DCA 1994). First, the State’s argument requires the inference that while Mr. Rangel was rummaging, he touched or manipulated the container in some fashion. Second, it then requires the inference that touching the container signified his ability to exercise dominion and control over it. Such inferences may have been plausible had the illicit nature of the contents been readily apparent or if Sergeant Sheffield had actually seen Mr. Ran-gel touch the container, but as the evidence stands, such inferences ‘lack[ ] the conclusive nature to support a conviction.’” Evans v. State, 26 So.3d 85, 90 (Fla. 2d DCA 2010) (quoting Edison v. State, 954 So.2d 1235, 1238 (Fla. 2d DCA 2007)).

Furthermore, Mr. Rangel’s rummaging is not, in and of itself, an incriminating act and is subject to numerous, innocent explanations. While the State is not required to rebut every reasonable hypothesis except that of guilt, it is required to submit facts inconsistent with the defendant’s hypothesis of innocence. Cordero-Artigas v. State, 75 So.3d 838, 841 (Fla. 2d DCA 2011). Because Sergeant Sheffield could not see what Mr. Rangel was doing while rummaging and, consequently, could not see whether Mr. Rangel touched the container, the rummaging is arguably nothing more than a different form of proximity. Without additional evidence linking Mr. Rangel to the container, the State has not met its burden.

The dissent states that “the defense presented no discernable, specific theory of innocence.” Mr. Rangel did offer a reasonable hypothesis of innocence in his motion for judgment of acquittal, and it was quite straightforward: He had no knowledge of the presence of the ecgonine in the closed plastic container and lacked the ability to maintain dominion and control over it. In support of his theory, Mr. Rangel pointed out that he was only one of three men in the car. Either or both of the other men could have been responsible for placing the cocaine derivative in the container.

This case is factually similar to Brown, 8 So.3d 1187. In Brown, police arranged for a confidential informant to purchase drugs from the defendant. Id. at 1188. After the transaction concluded, the police stopped the vehicle driven by the defendant, which also contained one other passenger. The officer observed the defendant place an item in the center console and also noted that the defendant appeared nervous and was shaking and that the vehicle smelled like marijuana. The police conducted a search of the defendant and of the defendant’s vehicle and discovered crack cocaine and powdered cocaine on the defendant’s person and Xanax in a jewelry box located within the center console the defendant was observed closing. The defendant was charged with possession of cocaine with intent to sell and possession of Xanax. At trial, the defendant moved for a judgment of acquittal on the charge of possession of Xanax. The trial court denied his motion.

On appeal, the Fourth District found that the State failed to prove constructive possession because the additional circumstances beyond proximity, including the defendant’s nervousness and movements in the area where drugs were found, were insufficient to show knowledge or dominion and control. Id. at 1189. Notably, the Xanax found in the defendant’s vehicle was concealed in a closed container — the jewelry box — and its incriminating nature, therefore, was not readily apparent.

Similarly, in this case, the ecgonine was hidden in a closed, unmarked container filled with a liquid substance, and its illicit nature was not readily observable. The State’s proof was limited to Mr. Rangel’s proximity and rummaging in the area where the caddy rested on the floor. As in Brown, such evidence is insufficient to establish a prima facie case of constructive possession.

The State also highlights as evidence of Mr. Rangel’s dominion and control his flippant remark to Sergeant Sheffield when questioned about the contents of the container. Yet, Mr. Rangel’s remark is not incriminating and does not amount to an admission that he possessed the container. The remark could be viewed as rude, and it may suggest that Mr. Rangel had knowledge of the container’s illicit contents. However, a stacking of inferences is required to arrive at the conclusion that the remark indicated that Mr. Rangel had the ability to exercise dominion and control over the container.

Finally, the evidence is uncontroverted that Mr. Rangel, at one point, had actual possession of crack cocaine that he sold to the confidential informant. The cocaine found within the container, however, was of a liquid or powder variety called ecgo-nine, a cocaine derivative. Mr. Rangel’s actual possession of one type of narcotic does not permit the inference that he possessed a different type of narcotic concealed in a vehicle that he did not own. See id. (finding that “evidence that the defendant agreed to sell the informant crack [later found on his person] does not tend to demonstrate that he had knowledge of Xanax [hidden] in a car that [did not belong to him]”); see also Culver, 990 So.2d at 1209-10 (finding that actual possession of narcotics, standing alone, is insufficient to demonstrate constructive possession when narcotics are found concealed in a jointly occupied vehicle). Furthermore, the confidential informant testified that the crack cocaine he received from Mr. Rangel was collected from all of the vehicle’s occupants. No evidence exists to show that Mr. Rangel’s actual possession of crack cocaine makes an inference of his dominion and control over the container more plausible than an inference of dominion and control by any of the vehicle’s other occupants.

When it is apparent that no legally sufficient evidence has been advanced by the State that would support a jury verdict of guilty, a motion for judgment of acquittal should be granted. Meme, 72 So.3d at 256 (citing Toole v. State, 472 So.2d 1174, 1176-77 (Fla.1985)); see also Isaac v. State, 730 So.2d 757, 758 (Fla. 2d DCA 1999) (“Whether a defendant had dominion and control over contraband is generally a fact issue for the jury, but a judgment of acquittal is proper when there is no evidence from which dominion and control can be inferred.”). Because the State failed to present any substantial, competent evidence linking Mr. Rangel to the ecgonine in the container that did not require impermissible inferential reasoning, it failed to establish a prima facie case of constructive possession. Accordingly, the trial court erred in denying Mr. Rangel’s motion for judgment of acquittal on the possession charge.

III. CONCLUSION

For these reasons, we reverse Mr. Ran-gel’s judgment and sentence for possession of cocaine and remand for his discharge for that offense. We affirm Mr. Rangel’s judgment and sentence for sale of cocaine within a thousand feet of a place of worship.

Affirmed in part, reversed in part, and remanded with directions.

SILBERMAN, C.J., Concurs:

BLACK, J., Dissents with opinion.

BLACK, Judge,

dissenting.

The majority correctly characterizes this ease as a joint possession situation where Mr. Rangel’s mere proximity to the contraband would be insufficient to establish constructive possession of the drugs. See Watson, 961 So.2d at 1117. However, in addition to the drugs being located on the floorboard of the seat that Mr. Rangel had been occupying — “directly between [Ran-gel’s] legs” — Sergeant Sheffield testified that Mr. Rangel bent forward toward the floorboard where the drugs were located and described Mr. Rangel’s movements as “furtive” and as though he was “trying to conceal something.” Further, when the officer inquired about the contents of the bottle containing the cocaine, Mr. Rangel replied, “Why don’t you open it up and drink it and see what’s in it?” Viewing this evidence in the light most favorable to the State, as we must, I disagree with the majority’s conclusion that the evidence was insufficient to survive a motion for judgment of acquittal and respectfully dissent.

Where the State’s evidence is wholly circumstantial, as is the case here, the State must present sufficient evidence to establish each element of the offense as well as exclude the defendant’s reasonable hypothesis of innocence to survive a motion for judgment of acquittal. Evans, 26 So.3d at 89. However, if there is an inconsistency between the State’s evidence and the defendant’s theory of innocence, the trial court should deny the motion and allow the jury to resolve the inconsistency. Id. Although the circumstantial evidence test guards against convictions based solely on impermissibly stacked inferences, “[c]ircumstantial evidence, by its very nature, is not free from alternate interpretations, and ‘[t]he State is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events.’” Id. at 90 (quoting State v. Law, 559 So.2d 187, 189 (Fla.1989)). Contrary to the majority’s conclusion, the State presented independent proof connecting Mr. Rangel to the drugs; thus, no inferential leaps were required for the jury to conclude that Mr. Rangel had constructive possession of the cocaine.

“[E]vidence of incriminating statements and circumstances, other than the mere location of the substance, from which the jury might infer knowledge of the presence of the contraband” is sufficient proof to survive a motion for judgment of acquittal. State v. Cadore, 59 So.3d 1200, 1203 (Fla. 2d DCA 2011). Here, Sergeant Sheffield testified that as he approached the car Mr. Rangel was leaning forward “fiddling with something on the floorboard.” He stated that it was a “furtive movement” as if Mr. Rangel was “attempting to conceal something.” The liquid cocaine was found in the caddy located at Mr. Rangel’s feet on the floorboard. No record evidence exists to rebut Sergeant Sheffield’s testimony. The majority contends that Mr. Rangel’s movements are subject to numerous innocent explanations and correctly points out that the State is required to present evidence inconsistent with the defendant’s theory of innocence. However, here, the defense presented no discernable, specific theory of innocence. Thus, the only way the court could reject the State’s theory that Mr. Rangel’s movements suggested guilty knowledge of the contraband was to discredit Sergeant Sheffield’s testimony. It is well settled that matters of credibility should not be determined on a motion for judgment of acquittal as such determinations are solely for the jury. Fitzpatrick v. State, 900 So.2d 495, 508 (Fla.2005). Further, Sergeant Sheffield’s testimony that Mr. Rangel attempted to conceal something on the floorboard was sufficient independent evidence for the jury to infer guilty knowledge of the contraband located between his feet. Indeed, only one inferential step was required to conclude that Mr. Rangel was manipulating the drugs. Cf. Bennett, 46 So.3d at 1184 (“To satisfy [the dominion and control] element of the State’s proof, the surrounding circumstances must support the inference of ‘a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession.’ ” (quoting Jackson v. State, 995 So.2d 535, 539 (Fla. 2d DCA 2008))); Brickley v. State, 12 So.3d 311, 314 (Fla. 4th DCA 2009) (finding that dominion and control require more than the mere ability to reach out and touch an item of contraband). As a result, the State’s evidence was sufficient for the jury to have inferred dominion, control, and knowledge.

Additionally, the majority argues that Mr. Rangel’s flippant remark to Sergeant Sheffield — that he drink the substance to determine what it was — was a rude but not necessarily incriminating statement. Although I believe Mr. Rangel’s remark, in its context, to be an incriminating statement, the remark is also additional evidence that Mr. Rangel could exercise control over the cocaine. A person cannot convey property that he or she does not own or, at a minimum, have some control over. See Marion Mortg. Co. v. Teate, 98 Fla. 713, 124 So. 172, 174 (1929) (“[A] person can not [sic] convey that which he does not own.” (quoting Hickson Lumber Co. v. Gay Lumber Co., 150 N.C. 282, 63 S.E. 1045, 1047 (1909))). A motion for judgment of acquittal should only be granted when there is no evidence from which dominion and control can be inferred. See Edison, 954 So.2d at 1237.

The majority contends that this case is factually similar to the Fourth District’s decision in Brown. In Brown, the court found that a judgment of acquittal was appropriate where Xanax was discovered in a closed jewelry box located in the center console of a jointly occupied car. 8 So.3d at 1188-89. Although the defendant in Brown was seen rummaging in the console immediately prior to the stop and appeared nervous during the stop, the court held that this evidence alone was insufficient to show knowledge of the Xa-nax or the ability to exercise control over the drug because the incriminating nature of the drug was not readily apparent. Id. at 1189. However, the facts of Brown do not indicate that the defendant made any incriminating statements. Further, in this case, the drugs were not concealed in a closed container within a closed compartment of the car. Rather, the bottle of liquid cocaine in the caddy is more analogous to a baggie of crack cocaine located in a caddy in Mr. Rangel’s plain view.

For example, in Nicholson v. State, 33 So.3d 107, 110-11 (Fla. 1st DCA 2010), the court affirmed the denial of a motion for judgment of acquittal in a joint possession situation where cocaine and baggies were found in plain view in the living room next to where the defendant had been sitting. The court reasoned that the presence of the drugs and paraphernalia in plain view of where the defendant had recently been sitting was sufficient to satisfy the knowledge requirement of constructive possession. Id. at 111. Likewise, the court held that the defendant’s location was sufficient to imply his ability to exercise dominion and control over the area where the police found the contraband. Id. at 110. However, the court in Nicholson also reversed the defendant’s conviction for trafficking hydrocodone based on the police officer’s discovery of hydrocodone pills located in a change purse on the living room coffee table. Id. at 111. Because a change purse is an ordinary object used for lawful purposes and the State failed, through circumstantial evidence or otherwise, to prove that the defendant knew of the hydroco-done hidden in the purse, the court found that the evidence was insufficient to go to a jury. Id. The hydrocodone found in the change purse in Nicholson is analogous to the Xanax located in the jewelry box in Brown. However, the bottle of liquid cocaine in Mr. Rangel’s plain view is much more akin to the cocaine and baggies found in plain view of the defendant in Nicholson, in which case it is for the jury to determine whether the State proved its case beyond a reasonable doubt.

Likewise, the Fourth District in Meme affirmed the denial of a motion for judgment of acquittal in a factually analogous situation. In Meme, the defendant was the driver of a jointly occupied vehicle which was stopped for an expired license tag. 72 So.2d at 255. The stopping officer testified that as he approached the vehicle, he saw the defendant reach down under his seat. After the defendant consented to the search of the ear, the officer discovered cocaine in a vial under the seat where the defendant had been reaching. The officer then arrested the defendant for the possession of cocaine at which time the defendant stated “my life is over” and “I’m going to jail.” Id. At trial, the defendant denied leaning over when the officer first stopped the vehicle and denied possessing the cocaine. Meme moved for a judgment of acquittal arguing that the State failed to prove that he knowingly possessed any cocaine. Id. The Fourth District reasoned that the defendant’s statements combined with his movement were inconsistent with the defendant’s hypothesis of innocence that he did not know the cocaine was in the vehicle and was enough circumstantial evidence to survive a motion for judgment of acquittal. Id. at 256-57.

While Mr. Rangel’s flippant remark may not be as incriminating as the statements made in the Meme case, the defendant in Meme also provided evidence explaining the presence of the cocaine under his seat. Mr. Rangel provided no such evidence. As a result, the statement coupled with the undisputed testimony of Mr. Rangel’s furtive movements is enough independent evidence to survive a motion for judgment of acquittal, particularly because Mr. Rangel failed to present any reasonable hypothesis of innocence. Accordingly, the State met its threshold burden and it was the “jury’s duty to determine whether the evidence [was] sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.” Darling v. State, 808 So.2d 145, 156 (Fla.2002) (quoting State v. Law, 559 So.2d 187, 189 (Fla.1989)).

      . It should be noted that neither Mr. Rangel nor any of the vehicle’s other occupants owned the vehicle, although there is no evidence that it was stolen or operated without permission.


text:
    Christopher M. FAZZARO, Appellant, v. Kristin E. FAZZARO, Appellee.
    No. 2D11-5714.
    District Court of Appeal of Florida, Second District.
    March 8, 2013.

      Virginia R. Vetter, Tampa, for Appellant.
    K. Dean Kantaras and Jennifer H. Cavill of K. Dean Kantaras, P.A., Palm Harbor (withdrew after briefing), for Appellee.
    Kristin E. Fazzaro, pro se.
   NORTHCUTT, Judge.

Christopher Fazzaro appeals the final judgment dissolving his marriage to Kristin Fazzaro. We agree that the trial court abused its discretion by giving Ms. Fazza-ro final decision-making authority over matters involving the parties’ minor child, and we reverse on this issue.

The parties were married in 1999, and they have one minor child. In the final judgment, the trial court found that it was in the child’s best interests for the parties to exercise shared parental responsibility, and the court ordered them to do so. But the final judgment further provided that Ms. Fazzaro “shall have final decision-making authority should the parties be unable to reach an agreement on matters pertaining to the minor child.” Time-sharing was ordered in accordance with an attached parenting plan, which also provided for shared parental responsibility. But like the final judgment, it granted sole authority to Ms. Fazzaro if the parents are unable to agree, although it limited her ultimate authority to the areas of “Education/Academic decisions” and “Non-emergency health care.”

Under the parenting and time-sharing statute, shared parental responsibility is preferred unless it would be contrary to the child’s best interests. § 61.13(2)(c)(2), Fla. Stat. (2009). Pertinent to this case, the statute provides as follows:

In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include education, health care, and any other responsibilities that the court finds unique to a particular family.

§ 61.13(2)(c)(2)(a). The statute then sets forth a nonexclusive list of factors for the court to consider in establishing parental responsibility, § 61.13(8)(a)-(t), but the. court is not required to make specific findings other than on the ultimate fact of the child’s best interests, Bader v. Bader, 639 So.2d 122, 124-25 (Fla. 2d DCA 1994) (en banc). On appeal, we apply an abuse of discretion standard to determine “whether there is logic and justification for the result.” A.L.G. v. J.F.D., 85 So.3d 527, 529 (Fla. 2d DCA 2012) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (internal quotation mark omitted)).

The court here made no oral or written findings on the factors governing parental responsibility. And our review of the record reveals no logic or justification for the final judgment’s provision granting one party ultimate responsibility over all decisions affecting the child should the parties be unable to agree. As was noted by a sister court, “the effect of this order gives one parent complete control over all the decision-making, which undermines the intent of the child custody statute regarding shared parental responsibility.” Kuharcik v. Kuharcik, 629 So.2d 224, 225 (Fla. 4th DCA 1993) (reversing provision awarding mother ultimate authority over all decisions and remanding for court to delineate authority over specific aspects only). We likewise find no logic or justification for the provisions in the parenting plan that granted Ms. Fazzaro ultimate authority over the child’s education and nonemergency health care. See A.L.G., 85 So.3d at 529 (finding an abuse of discretion “when the judicial action is arbitrary, fanciful, or unreasonable” (quoting Canakaris, 382 So.2d at 1203) (internal quotation marks omitted)).

The evidence at trial primarily focused on Ms. Fazzaro’s request to relocate to Texas with the minor child. There was extensive evidence about Mr. Fazzaro’s many changes in employment, the family’s frequent moves, and the parties’ financial issues. Pertinent to the child’s education, the evidence showed that both parents read to the child and helped with her homework. Because Ms. Fazzaro did not work outside the home, she was able to volunteer at the child’s school. But according to the child’s former teacher, both parents were involved with the school. While this teacher also said that the child had no difficulty learning, Mr. Fazzaro was concerned about the child’s reading level; he was interested in learning aids that would help the child improve. The scant evidence did not support assigning Ms. Fazzaro ultimate responsibility for decisions affecting the child’s education. Nor was there any evidence on the issue of nonemergency health care. In fact, the only possibly relevant evidence pertained to an emergency situation in which the child broke her arm when Mr. Fazzaro was out of town.

We reject Ms. Fazzaro’s assertion that the award of ultimate responsibility was supported by the level of hostility between the parties. Cf. Schneider v. Schneider, 864 So.2d 1193, 1195 (Fla. 4th DCA 2004) (finding no abuse of discretion in award to mother of ultimate responsibility for the child’s health, education, and travel in light of evidence showing hostility between the parties and specific evidence that father had screamed at a teacher and failed to work constructively with the child’s psychologist). Here, there was evidence that Mr. Fazzaro had insulted Ms. Fazzaro, and we do not condone his remarks. But nothing showed a continuing pattern of hostility that reasonably would lead one to conclude that the parties will be unable to effectively work together for their child’s best interests.

We reverse the provision in the final judgment granting Ms. Fazzaro ultimate responsibility for all decisions affecting the child, and we reverse the provisions in the parenting plan assigning to Ms. Fazzaro ultimate responsibility for the child’s education and nonemergency health care. We see no abuse of discretion in the trial court’s relocation decision, and we affirm on this issue without discussion. At oral argument, the parties advised that they had resolved the final issue concerning temporary alimony, which makes that issue moot.

Affirmed in part; reversed in part.

KELLY and VILLANTI, JJ„ Concur.


author: SILBERMAN, Chief Judge.

text:
    SPRING LAKE NC, LLC d/b/a Spring Lake Rehabilitation Center, Appellant, v. Marlene Madeline BELOFF, as Personal Representative of the Estate of George Beloff, Nisha M. Paul, M.D., and Bond & Steele Clinic, P.A., Appellees.
    No. 2D12-4638.
    District Court of Appeal of Florida, Second District.
    March 8, 2013.

      Kirsten K. Ullman and Bruce D. Peisner of Lewis Brisbois Bisgaard & Smith, LLP, Tampa, for Appellant.
    Robert Aranda of Valenti Campbell Trohn Tamayo & Aranda, P.A., Lakeland, for Appellee Marlene Madeline Beloff.
    No appearance for remaining Appellees.
   SILBERMAN, Chief Judge.

Spring Lake NC, LLC, d/b/a Spring Lake Rehabilitation Center appeals a non-final order that denies its motion to compel arbitration in this negligence action brought by Marlene Madeline Beloff, as Personal Representative of the Estate of George Beloff. Because the Estate failed to establish that the arbitration agreement was unconscionable, we reverse the order and remand for the trial court to grant Spring Lake’s motion.

George Beloff was admitted to Spring Lake on December 17, 2009. Based on a durable power of attorney appointing Mrs. Beloff as her husband’s attorney-in-fact, she signed the admission papers to Spring Lake on December 18, 2009. The residency agreement she signed includes a provision titled “Arbitration of Disputes.” The arbitration provision has two separate signature lines. One states, “I have reviewed and understand the provisions of Section VII and accept binding arbitration.” The other states, “I have reviewed and understand the provisions of Section VII and decline binding arbitration.” Mrs. Beloff signed the line accepting binding arbitration and printed her name below her signature.

Mr. Beloff was discharged from Spring Lake to Winter Haven Hospital on December 21, 2009. He died on December 25, 2009. Subsequently, on August 17, 2011, the Estate filed a complaint against Dr. Nisha M. Paul and Bond & Steele Clinic, P.A., alleging medical malpractice in connection with the treatment of Mr. Beloff at Spring Lake. The Estate was permitted to amend its complaint to add Spring Lake as a defendant. In response to the amended complaint, Spring Lake filed a motion to compel arbitration. The trial court conducted a hearing on the motion, and the only testimony considered was Mrs. Be-loffs deposition testimony. The Estate argued that the arbitration agreement was procedurally unconscionable based on the circumstances surrounding the execution of the agreement. The Estate argued substantive unconscionability based on its assertion that arbitration with Spring Lake could result in inconsistent verdicts when the Estate would be going to a jury trial against the doctor and the clinic. It did not argue that any of the terms of the arbitration agreement were unconscionable.

The trial court denied the motion to compel arbitration. The trial court found that Mrs. Beloffs subjective belief that she needed to sign the acceptance line of the arbitration agreement and the pressure she felt regarding her husband receiving appropriate care at the facility rendered the agreement procedurally unconscionable. The trial court expressly stated that it was not making a determination regarding the Estate’s argument of substantive unconscionability. Spring Lake timely appealed the order denying its motion to compel arbitration.

At issue is whether the trial court properly determined the arbitration agreement to be invalid on the basis that it was unconscionable. Our review of any factual findings by the trial court is limited to whether competent, substantial evidence supports the findings. Tampa HCP, LLC v. Bachor, 72 So.3d 823, 326 (Fla. 2d DCA 2011). However, we conduct a de novo review of the trial court’s construction of the arbitration agreement and the court’s application of the law to the facts. Id.

Courts generally favor arbitration agreements as a method of dispute resolution. Id.; Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 263 (Fla. 2d DCA 2004). The contract defense of uncon-scionability is applicable to arbitration agreements, but the party asserting the defense must prove both procedural and substantive unconscionability. SA-PG Sun City Ctr., LLC v. Kennedy, 79 So.3d 916, 919 (Fla. 2d DCA 2012); Bachor, 72 So.3d at 326. If this court determines that the agreement is not procedurally unconscionable, then it need not reach the issue of substantive unconscionability. Kennedy, 79 So.3d at 919; Bachor, 72 So.3d at 326.

Procedural unconscionability concerns the manner in which the agreement was made. Bachor, 72 So.3d at 326. “To determine whether a contract is procedurally unconscionable, a court must decide whether the complaining party had a meaningful choice at the time the contract was signed.” Brea Sarasota, LLC v. Bickel, 95 So.3d 1015, 1017 (Fla. 2d DCA 2012). Factors to consider include “ ‘whether the complaining party had a realistic opportunity to bargain regarding the terms of the contract, or whether the terms were merely presented on a “take-it-or-leave-it” basis; and whether he or she had a reasonable opportunity to understand the terms of the contract.’ ” Id. (quoting Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 284 (Fla. 1st DCA 2008)). And a party “should not be permitted to avoid the consequences of a contract freely entered into simply because he or she elected not to read and understand its terms before executing it, or because, in retrospect, the bargain turns out to be disadvantageous.” Weston, 857 So.2d at 288; see also Bachor, 72 So.3d at 328 (“The fact that Ms. Bachor chose not to read the arbitration agreement before signing it does not relieve her of the bargained-for deal.”).

Here, the Estate failed to meet its burden to show that the arbitration agreement was procedurally unconscionable. When Mrs. Beloff signed the admissions documents, her husband had already been admitted to Spring Lake the previous day. She believed that her meeting with the representative for Spring Lake took about fifteen minutes. Mrs. Beloff admitted that the representative did not pressure her to sign the documents but that she was pressuring herself because she had a subjective feeling that her husband would not get any attention until she signed. The representative presented the documents to her one by one, but Mrs. Beloff did not ask any questions. When asked during her deposition if the representative explained any of the arbitration portions of the agreement, Mrs. Beloff said that she did not remember.

The Estate has not shown that Spring Lake’s representative indicated that continued admission was contingent upon Mrs. Beloff signing the arbitration agreement. See Kennedy, 79 So.3d at 920. The Estate also presented no evidence that Mrs. Beloff “was coerced into signing or prevented from understanding the contents of the arbitration agreement.” Id. Mrs. Beloff indicated that any pressure to sign was self-imposed. In fact, the document itself indicates that she could have signed on one line to accept the arbitration agreement or she could have signed on the next line to decline the arbitration agreement.

The Estate failed to meet its burden to prove that Mrs. Beloff had no meaningful choice and that the arbitration agreement was procedurally unconscionable. Because the Estate failed to prove procedural un-conseionability, we need not reach the issue of substantive unconscionability. See Kennedy, 79 So.3d at 919; Bachor, 72 So.3d at 326. Therefore, we reverse the order denying Spring Lake’s motion to compel arbitration and remand for the trial court to grant the motion.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.


author: VILLANTI, Judge.

text:
    Cary AUBUCHON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5745.
    District Court of Appeal of Florida, Second District.
    March 8, 2013.

      Sharon Morgan Vollrath, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Cary Aubuchon appeals his convictions and sentences for attempted trafficking in oxycodone, 28 grams to 30 kilograms, and simple possession of oxycodone, contending that the dual convictions violate double jeopardy. The State has properly conceded that the dual convictions for attempted trafficking and possession violate double jeopardy, and we therefore vacate the possession conviction and remand for resentencing.

The facts at trial established that in late February 2010 Aubuchon made arrangements with a drug seller to purchase 400 oxycodone pills for $2000. The weight of this number of pills was determined after the fact to be approximately 50 grams. When Aubuchon arrived at the delivery location, the seller handed him a bottle containing only 39.5 pills for Aubuchon to inspect. Aubuchon accepted the bottle and gave the seller $1900 in cash. The seller then left, purportedly to get the remainder of the pills. However, unbeknownst to Aubuchon, the seller was an undercover police officer, and as the “seller” walked away, other officers surrounded Aubuchon and arrested him. He was charged with attempting to traffic in oxy-codone between 28 grams and 30 kilograms by purchase or possession based on his “agreement” with the “seller” to purchase 400 pills. He was also charged with trafficking in oxycodone, 4 to 14 grams, by purchase or possession based on his actually taking possession of 39.5 pills. The jury found Aubuchon guilty as charged of the attempted trafficking but guilty only of possession as a lesser included offense of the trafficking charge. Thus, the jury found that while Aubuchon attempted to purchase and/or possess 400 oxycodone pills, he was only successful at possessing some number of pills of undetermined weight. The trial court subsequently sentenced Aubuchon to 60 months in prison on each of the convictions.

In this appeal, Aubuchon argues that his convictions for both attempted trafficking and simple possession of the same pills violate double jeopardy. The State has properly conceded error based on the facts of this case.

“[Ajnalysis of the double jeopardy issue is to be done by a comparison of the statutory elements of a crime.” Gibbs v. State, 698 So.2d 1206, 1208 (Fla.1997). This analysis is somewhat more complex when dealing with an “alternative conduct statute,” such as the trafficking statute. In that instance, the supreme court has held:

[W]e recognize that an alternative conduct statute, such as the cocaine trafficking statute, requires an analysis that breaks the conduct elements into the specific alternative conduct which is in the other statute being compared. The conduct element of the trafficking statute is not compared by considering the entire range of conduct including possession, sale, purchase, and delivery, but rather by comparing only trafficking possession with simple possession. This is a different situation from a case in which the defendant is charged with both trafficking sale and simple possession, because the sale element of the trafficking statute differs from the elements in the simple possession statute. Thus, if prosecution is for the same conduct under both statutes, a conviction under more than one of the statutes is a violation of double jeopardy principles.

Id. at 1209-10 (emphasis added). Thus, a defendant cannot be convicted of trafficking by possession and simple possession of the same drugs, see Howard v. State, 916 So.2d 824, 825 (Fla. 2d DCA 2005), and this is true even when the drugs are packaged in multiple packages and carried separately, see Gibbs, 698 So.2d at 1207-09 (finding that double jeopardy prohibited dual convictions for trafficking by possession of a large quantity of drugs in trunk of car and simple possession of a smaller quantity on person); Robinson v. State, 901 So.2d 1027, 1028-29 (Fla. 4th DCA 2005) (finding that double jeopardy prohibited dual convictions for trafficking by possession of large bag of cocaine and simple possession of a separate smaller bag of cocaine).

Here, the State charged Aubuchon with one count of attempted trafficking by purchase or possession and one count of trafficking by purchase or possession. Both charges alleged the same conduct — purchase or possession — although they alleged different quantities of the same drug. Since the quantity requirement is not a separate element of the trafficking offenses, see Gibbs, 698 So.2d at 1209, and since both counts charged the identical conduct (purchase or possession), conviction under more than one of these statutes constituted a violation of double jeopardy.

Moreover, the fact that the jury actually convicted Aubuchon of the lesser offense of possession of oxycodone on the trafficking charge does not change the analysis in this case. While it is true that the attempted trafficking count charged either purchase or possession, the jury was not asked to make a finding as to which conduct — purchase or possession — it found that Aubu-chon committed. Thus, it is entirely possible that the jury found Aubuchon guilty of attempted trafficking by possession as well as simple possession of the same oxyco-done. If so, these dual convictions would be barred by double jeopardy. See Howard, 916 So.2d at 825 (holding that convictions for trafficking by possession and simple possession of the same drugs violated double jeopardy). And while our result might have been different had the jury made a specific finding that Aubuchon purchased 400 pills but only possessed 40, no such specific jury finding was made in this case. Therefore, because “[w]e must read the verdict in a manner which would give the benefit of the doubt to” the defendant, State v. Reardon, 763 So.2d 418, 419 n. 3 (Fla. 5th DCA 2000) (citing Valentine v. State, 688 So.2d 313, 317 (Fla.1996)), we must conclude that the dual convictions violate double jeopardy. See, e.g., Latimer v. State, 44 So.3d 1239, 1240 (Fla. 5th DCA 2010) (holding that convictions for robbery and simple assault violated double jeopardy when robbery could be committed by “the use of force, violence, assault or putting in fear” and the verdict form required no finding as to whether the robbery was committed by assault or some other use of force or violence); Torna v. State, 742 So.2d 366, 367 (Fla. 3d DCA 1999) (holding that convictions for “burglary with an assault and/or battery” and simple battery violated double jeopardy because the verdict form “contained no indication as to whether the jury had found that Torna had committed a ‘burglary with an assault’ or a ‘burglary with a battery’ ” and “we cannot now guess what the jury was thinking”). Accordingly, we agree with the State’s concession of error on this issue.

The more difficult question is which conviction should be vacated. The general rule is that “[w]hen an appellate court determines that dual convictions are impermissible, the appellate court should reverse the lesser offense conviction and affirm the greater.” Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) (citing State v. Barton, 523 So.2d 152, 153 (Fla.1988)). In most cases, “lesser offenses ‘are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial.’ ” Pizzo, 945 So.2d at 1206 (quoting State v. Florida, 894 So.2d 941, 947 (Fla.2005), and citing § 775.021(4), Fla. Stat. (1997)). In addition, under section 775.031(4)(b)(2), an attempt to commit an offense is considered to be subsumed within the completed offense because the offense of attempt is usually a degree variant of the primary offense. See, e.g., Valdes v. State, 3 So.3d 1067, 1077 (Fla.2009) (holding that section 775.021(4)(b)(2) applies to offenses that are different degrees of the same offense); cf. Partch v. State, 43 So.3d 758, 762 (Fla. 1st DCA 2010) (noting that the offenses of sexual battery and attempted sexual battery are degrees of the same crime, so conviction of both violated double jeopardy). On these unusual facts, however, the usual analysis does not provide a clear answer.

To convict of attempted trafficking by possession, the State had to prove that Aubuchon knowingly attempted to possess four grams or more of oxycodone and that Aubuchon knew the substance was oxycodone, but some act interrupted him from purchasing it. See § 893.135(l)(c)(l), Fla. Stat. (2010). To convict Aubuchon of possession, the State had to prove that Aubuchon was in actual or constructive possession of some quantum of a controlled substance. See § 893.13(6). Neither of these offenses is strictly subsumed into the other, and they are not strictly degrees of the same offense.

However, from a practical and factual perspective, Aubuchon’s “possession” of the 39.5 pills was simply a small part of his larger attempt to obtain his full order of 400 pills. Aubuchon “ordered” 400 pills, he arrived at the designated location with payment for 400 pills, the “seller” accepted $1900 for the 400 pills but made only a partial delivery, and Aubuchon remained where he was, waiting for the remainder of his “order.” Thus, his brief possession of the 39.5 pills was not a separate completed offense but was simply an intermediate part of the offense of attempting to possess all 400 pills. The “installment plan” delivery system unilaterally imposed by the police officer does not change this analysis. Therefore, on these unusual facts, we can only conclude that the possession conviction is the “lesser” of Aubuchon’s two convictions. Accordingly, we vacate the conviction for possession of oxy-codone and remand for resentencing.

Affirmed in part, vacated in part, and remanded for resentencing.

SILBERMAN, C.J., and KELLY, J., Concur.

      . Aubuchon also argued that the evidence was insufficient to establish that he possessed the oxycodone in question. Our resolution of this case renders that argument moot.


author: CASANUEVA, Judge. ALTENBERND, Judge,

text:
    Zamara Janice WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1554.
    District Court of Appeal of Florida, Second District.
    March 8, 2013.

      Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Zamara Janice Williams appeals her judgment and sentence for possession of cannabis with intent to sell, manufacture, or deliver. She challenges the sufficiency of evidence to support a guilty verdict for the constructive possession of the illegal drug. We conclude that her challenge is meritorious because the trial court erred by denying her motion for judgment of acquittal.

Background

Tampa police officers Filippone and Cruz followed Ms. Williams onto the interstate highway after they saw her drop off a passenger in the middle of 24th Avenue. They signaled to her to pull over because she was speeding and driving recklessly on the interstate and she complied, exiting the interstate and pulling into a parking lot. She was driving a rented compact hatchback with two passengers. Even before the officers pulled up behind her in the parking lot, she had exited her vehicle and approached them in an extremely agitated state, telling the officers to just go ahead and give her the traffic citation. She was behaving in such an overwrought manner, amounting almost to having a panic attack and hyperventilating, that it took the officers several minutes to calm her before they could continue with the traffic stop. One officer testified that her heart was beating so furiously that he could see it pounding in her chest and offered to call emergency medical services (EMS), but she declined. The officers also testified that during this initial period of the stop, she was continually moving away from her vehicle and thus drawing them away with her; they had to keep bringing her back to her vehicle. As they stood near the driver’s door, they perceived the strong odor of fresh marijuana that was emanating from the vehicle and traced it to a closed black bag behind the rear seat in the hatchback.

Based upon the odor of marijuana, the officers asked Ms. Williams for permission to search the car. She responded by saying that she did not think that there would be drugs in the car but consented to the search. Upon further investigation, the officers noted that the car was unkempt with paperwork bearing Ms. Williams’ name strewn about. Inside the black bag they found a gallon ziplock bag containing almost a pound of fresh marijuana; a smaller baggie containing several pieces of what appeared to be, and what were later confirmed to be, crack cocaine; an open box of sandwich bags; and two digital scales. No attempt was made to lift fingerprints from the black bag or any item from inside the bag. Although the car was rented in Ms. Williams’ name, she was driving it, and her personal belongings were in the car, there was nothing on or in the black bag that tied it or the items inside it to her or anyone else.

Based on the above, the State charged Ms. Williams with three counts: possession of cannabis with intent to sell; possession of cocaine with intent to sell; and possession of drug paraphernalia. When Ms. Williams’ defense counsel moved for judgment of acquittal at trial, the trial court denied the motion based on the strong odor of marijuana, the fact that the officers had found letters addressed to Ms. Williams in the car, and the fact that the car was rented in her name. After the jury submitted a question that indicated its concern about interpreting constructive possession, it returned a verdict of guilty of possession of cannabis but not guilty of the cocaine and paraphernalia counts. The trial court sentenced Ms. Williams to four years’ probation and she timely appealed. Because she was acquitted of the other two counts, our discussion focuses only on the marijuana in the black bag.

Standard of Review

In moving for a judgment of acquittal, a defendant admits all the facts introduced into evidence and all fair and reasonable inferences from them which must be viewed in the light most favorable to the State. See Pearce v. State, 880 So.2d 561, 571-72 (Fla.2004); Lynch v. State, 293 So.2d 44, 45 (Fla.1974). A determination of whether sufficient evidence was presented to support the verdict is subject to de novo review by the appellate court. Jackson v. State, 25 So.3d 518, 531 (Fla.2009); Berube v. State, 5 So.3d 734, 743 (Fla. 2d DCA 2009). When a trial court denies a motion for judgment of acquittal, the reviewing court may not reverse if there is competent, substantial evidence to support the jury’s verdict. Chamberlain v. State, 881 So.2d 1087, 1104 (Fla.2004) (citing Rogers v. State, 783 So.2d 980, 988 (Fla.2001)).

The Law Of Constructive Possession

Because it was clear that Ms. Williams did not have exclusive possession of the black bag containing marijuana, as there were other persons in the car and she did not admit the bag was hers, the State was required to prove constructive possession with evidence beyond the fact that she was in near proximity to the black bag. See K.A.K. v. State, 885 So.2d 405, 407 (Fla. 2d DCA 2004) (holding that mere proximity to narcotics is insufficient to show that the person had constructive possession of the drugs; the mere fact that a person is close to the contraband does not alone establish that he or she knew of the presence of the items or was able to exercise dominion and control over them); see also Smith v. State, 687 So.2d 875, 878 (Fla. 2d DCA 1997). When a defendant is not in exclusive possession of the vehicle where the contraband is found, the elements of knowledge and dominion and control may not be inferred or assumed but must be established through additional and independent proof. E.A.M. v. State, 684 So.2d 283, 284 (Fla. 2d DCA 1996). Therefore, the State’s burden was to prove two elements: (A) that Ms. Williams knew of the presence of the contraband and (B) that she had the ability to exercise dominion and control over it. See Wagner v. State, 950 So.2d 511, 512 (Fla. 2d DCA 2007). It is the latter element for which we find the State’s evidence lacking.

Analysis

The first element — knowledge of the presence of the marijuana in the black bag — that the State had to prove in order to convict Ms. Williams of constructive possession is satisfied here by the evidence of the strong odor of marijuana of which the officers were conscious when they approached her car. Additional evidence to support this first element is the reasonable inference that can be taken from Ms. Williams’ extraordinary behavior when she was stopped. The officers testified that they had never before stopped anyone for a traffic violation and had the person react as Ms. Williams did. She was anxious and nervous to an unheard of degree, hyperventilating and having observable heart palpitations, causing the officers to fear for her health and to offer to send for EMS. Further, she continually tried to maintain a distance between herself and the officers and her car. The reasonable inference is that she knew there was marijuana in the car.

It is the second element — ability to exercise dominion and control — for which there was insufficient proof. Had Ms. Williams been the only person in the car when the officers stopped her, this element would have been satisfied and a jury question raised. See State v. Odom, 862 So.2d 56, 59 (Fla. 2d DCA 2003) (“As the sole occupant and driver of the vehicle, Odom had exclusive possession of the vehicle creating an inference of his dominion and control over the contraband contained therein particularly since the contraband was found lodged between the driver’s seat and the console of the car.”) But because Ms. Williams had two passengers with her, the State is not entitled to the benefit of an inference of dominion and control. The State is required to produce independent evidence pointing to her dominion and control of the black bag containing the marijuana. Ms. Williams’ argument relies on several cases with analogous factual circumstances that we find persuasive.

In Woods v. State, 765 So.2d 255 (Fla. 2d DCA 2000), police officers followed the defendant and his passenger into the park-' ing lot of a convenience store after observing a traffic infraction. When the defendant exited the vehicle, a brown cigar tube fell out at his feet from inside the car; he looked down and kicked it under the edge of the car. One officer told him to stop, which he did, but he appeared nervous. Upon opening the cigar tube, the officer arrested the defendant for possession of cocaine, at which point the defendant shouted to onlookers that the drugs had been planted on him. Id. at 256. The defendant claimed the car was registered to his girlfriend and that his passenger, who had quickly left the scene, had tossed the tube toward him as he got out. He had no explanation why he kicked the tube under the car. Id. at 256-57. Upon his conviction, the defendant appealed, arguing that the trial court had erred in denying his motion for judgment of acquittal. This court reversed with directions to dismiss the charge. Id. at 257-58.

This is an analogous situation and, like the cigar tube in Woods, there was nothing about the black bag that tied it to the driver when there was another person in the car. The State did not produce in either case independent evidence of the defendant’s dominion and control over the contraband.

In Hargrove v. State, 928 So.2d 1254 (Fla. 2d DCA 2006), when the driver was stopped, he stepped out of the car to speak with officers, leaving three passengers inside the vehicle. While outside the car, an officer saw a “smoking crack pipe” on the driver’s seat floorboard. Id. at 1255. No officer saw the driver in possession of the pipe nor did any passenger make any hand movement prior to finding the pipe. The State charged the driver with possession of cocaine and paraphernalia, and he appealed to this court. We reversed, concluding that even if the crack pipe had been emitting smoke and the driver had thus known of its presence, the State’s evidence had failed to establish that the driver had been able to exercise dominion or control over the substance. Id. at 1256.

In K.A.K., 885 So.2d 405, the defendant was adjudicated delinquent for constructive possession of drug paraphernalia. The defendant was driving her car with three passengers when she was involved in a serious accident that totaled the car. Upon arrival several minutes later, the officers saw that the driver’s side door was open and spotted a glass or ceramic item on the floorboard of the driver’s side. They immediately recognized it as a pipe often used to smoke illegal substances, and its presence provided probable cause to search the entire car. Id. at 406. This search revealed a green, leafy substance scattered all around on the driver’s floorboard and the driver’s seat. They also found a box containing cigarette rolling papers and a pair of scissor-type tweezers in the open glove compartment. The tip of the tweezers had a burnt substance on its edge. The State charged her with misdemeanor possession of the cannabis scattered around the car and misdemeanor possession of drug paraphernalia, i.e., the glass pipe from the driver’s side floorboard and the tweezers and rolling papers from the glove compartment. The trial court acquitted her of the possession of marijuana count but adjudicated her delinquent for the paraphernalia count. We reversed that adjudication because the State had not presented independent proof that she knew of the presence of the items or that she had the ability to control them. Id. at 407. The State had not overcome her hypothesis of innocence that another of the passengers in the car had dominion and control over the paraphernalia.

In reasoning that is equally applicable to Ms. Williams’ case, we said that “[t]he fact that the [paraphernalia] were found in that glove compartment, rather than in the passenger area itself, was not sufficiently distinctive factually or dispositive of the case because the compartment was open to all at the time the deputy searched.” Id. at 408. Ms. Williams and her passengers had equal access to the black bag containing marijuana in the hatchback of the car, but the State did not present any evidence tying the bag to her specifically to the exclusion of her reasonable hypothesis of innocence.

In Green v. State, 667 So.2d 208 (Fla. 2d DCA 1995), where the defendant was the passenger in the car, the State produced similar insufficient evidence to prove beyond a reasonable doubt constructive possession of cocaine found in a glove compartment. We reversed in Green, concluding, after viewing the evidence in the light most favorable to the State, that the most the State demonstrated was that the defendant was in proximity to the contraband, that he was nervous during the traffic stop, that cocaine was found in a secret compartment over the glove box, and that there was a spicy odor in the ear. Id. at 211.

Even under the lesser standard of proof by a preponderance of evidence in a violation of probation case, the State in Hanania v. State, 855 So.2d 92 (Fla. 2d DCA 2003), failed to prove constructive possession of contraband. The affidavit of violation of probation alleged that the defendant had violated conditions of his probation which had instructed him not to visit places where drugs were unlawfully sold, dispensed, or used; not to associate with persons who used illegal drugs; and not to frequent places where illegal drugs were used. Id. at 93. A law enforcement officer had stopped the car in which the defendant was a front seat passenger, and a narcotics dog alerted on the passenger’s seat of the car. Upon his searching the car, the officer found a yellow manila envelope containing three baggies of suspected methamphetamine between the passenger’s seat and the center console transmission column, an electronic scale in a recess under the dashboard, and an envelope containing marijuana addressed to the driver and owner of the car under the passenger seat. The defendant testified that he had only recently entered the car, about five blocks before the traffic stop, because the driver, an acquaintance of his, had agreed to give him a ride home from the store where they had met. Id. The State argued that the defendant’s proximity to the contraband was sufficient evidence of the conditions violated but this court disagreed because nothing in the record indicated that the defendant knew of the presence of the drugs or the scale or that he had the ability to exercise dominion and control over them. Id. at 94. Even though Ms. Williams was the driver of her car and the defendant in Hanania was a passenger, the present case is much like Hanania because there was no independent evidence linking either defendant to the contraband sufficient to convict other than mere proximity of contraband not in plain view.

Further, we are not persuaded by the State’s argument or the cases upon which it relies as they are factually distinguishable. See Brown v. State, 8 So.3d 464 (Fla. 2d DCA 2009); State v. Holland, 975 So.2d 595 (Fla. 2d DCA 2008); Ubiles v. State, 23 So.3d 1288 (Fla. 4th DCA 2010); Taylor v. State, 13 So.3d 77 (Fla. 1st DCA 2009).

Conclusion

The evidence presented at trial satisfied the first element — knowledge—that the State had to prove in order to overcome a motion for judgment of acquittal, but it did not establish that Ms. Williams was able to exercise dominion and control over the black bag that contained marijuana. See Culver v. State, 990 So.2d 1206, 1210 (Fla. 2d DCA 2008). Because the State failed to present sufficient evidence linking Ms. Williams to the contraband other than her mere proximity to it, the trial court erred in denying her motion for judgment of acquittal. Accordingly, we reverse the judgment and sentence for possession of marijuana. Because of the insufficient evidence supporting her conviction, on remand she must be discharged.

Judgment and sentence reversed and cause remanded with instructions to discharge Ms. Williams.

KHOUZAM, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I agree that our outcome today is required by the precedent that is well explained in the court’s opinion. Courts and legislatures around the country take different positions on this issue. See Emile F. Short, Annotation, Conviction of possession of illicit drugs found in automobile of which defendant was not sole occupant, 57 A.L.R.3d 1319 (1974). If I were writing on a clean slate, I would be inclined to believe that a jury should be authorized to return a guilty verdict on a drug charge where the defendant is an operator of a motor vehicle and has actual knowledge that the vehicle contains illegal drugs that easily could be removed from the vehicle.

In this case, Ms. Williams was driving her small rental car fully aware that a bag containing a large quantity of marijuana was behind her in the hatchback area. This marijuana was either her marijuana, her passengers’ marijuana, or marijuana jointly possessed by the driver and one or more of the passengers. Assuming the marijuana was not hers, she was in control of the car. She had the complete right before she entered the interstate to stop her car and order the criminal to exit the vehicle with the contraband. If she elected to continue to transport the contraband in this context, it seems to me that at a minimum she became a principal in the offense of possession and the jury was entitled to return this verdict. See Henry v. State, 311 Ga.App. 353, 716 S.E.2d 232 (2011) (driver has joint possession of marijuana located in glove compartment).

      . Ms. Williams raised, as a second issue, that the trial court erred in refusing to give a special jury instruction on constructive possession. Due to our disposition finding a lack of sufficient evidence, that issue is moot.

      . Ms. Williams does not dispute the legality of the stop.

      . When weighed, the FDLE found the amount of marijuana in the bag to be 413 grams or approximately 14.75 ounces.

      . §§ 893.13(l)(a)2, 893.13(l)(a)l, and 893.147(1), Fla. Stat. (2009), respectively.

      . Specifically, the question the jury sent out was: “In evaluating constructive possession, when the person does not have exclusive possession, please define inferred or assumed, i.e., would stating that Zamara was aware of a smell, not necessarily what the smell was, be an inference or an assumption.” The trial court's response to this question, with concurrence by both counsel, was: “All definitions and legal instructions permitted by law have been provided to you.”

      . Were we to accept the State’s arguments here — that merely by being the driver and renter of the car Ms. Williams had dominion and control over whatever closed containers were placed in the car with her and her passengers — it would be tantamount to turning such constructive possession into "strict liability” on the part of the driver, which we are not prepared to do.
      Professor LaFave, who is considered to be a leading authority in the area of criminal law, has also offered in his substantive criminal law treatise the observation that "some authority is to be found to the effect that a s trict-li ability criminal statute is unconstitutional if (1) the subject matter of the statute does not place it ‘in a narrow class of public welfare offenses,' (2) the statute carries a substantial penalty of imprisonment, or (3) the statute imposes an unreasonable duty in terms of a person's responsibility to ascertain the relevant facts.” 1 W. LaFave, Substantive Criminal Law § 5.5(b) at 389-90 (2d ed. 2003) (footnotes omitted).

        State v. Adkins, 96 So.3d 412, 428 n. 5 (Fla. 2012) (Pariente, J., concurring in result).


author: CASANUEVA, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. and Daniel J. Thomas, Appellants, v. Holli R. THORNE, Patricia Temples, Marshall Temples, and Eric Wiseman, Appellees. Daniel J. Thomas, Appellant, v. Holli R. Thorne, Patricia Temples, Marshall Temples, Eric Wiseman, and State Farm Mutual Automobile Insurance Co., Appellees.
    Nos. 2D11-3314, 2D11-3352.
    District Court of Appeal of Florida, Second District.
    March 8, 2013.

      Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, for Appellant State Farm Mutual Automobile Insurance Co.

      Ann Lehr O’Hern of Law Offices of Ellen H. Ehrenpreis, Tampa; and Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, for Appellant Daniel J. Thomas:
    Celene H. Humphries and Sarah C. Pel-lenbarg of Brannock & Humphries, Tampa; and Hendrik Uiterwyk of Abrahamson & Uiterwyk, Tampa, for Appellee Holli R. Thorne.
    No appearance for remaining Appellees.
   CASANUEVA, Judge.

In these consolidated appeals, State Farm Mutual Automobile Insurance Co. and Daniel J. Thomas, combined, raise six claims of error. These are (1) that a defense expert witness, Dr. Steven Kneze-vich, was improperly limited as to the scope of his testimony; (2) that a different defense expert witness, Dr. Charles Bain, was wrongly precluded entirely from providing opinion testimony regarding the cause of plaintifffappellee Holli R. Thorne’s injuries; (3) that Mr. Thomas was erroneously precluded from recalling a third expert defense witness, Dr. Steven Tresser, called by other defendants, as his own witness; (4) that the trial court erred in disallowing into evidence the high-low agreement the plaintiff had with some of the defendants; (5) that the trial court abused its discretion in denying a mistrial or a new trial based on improper closing argument by plaintiff’s counsel; and (6) that the trial court erred in ordering State Farm to pay its policy limits over and above the full damage award, subjecting Mr. Thomas to the possibility of double liability should State Farm seek subrogation against him. Ms. Thorne essentially concedes the merit of the sixth issue, and we find no abuse of discretion in the trial court’s refusal to allow Mr. Thomas to recall Dr. Tresser as his own witness. Accordingly, our discussion will focus on the remaining four issues. We reverse.

I. FACTS

In 2004, Ms. Thorne was a passenger in a vehicle that was rear-ended while it was stopped at a traffic light. In 2006, while driving her own car, she was again rear-ended while stopped at a traffic signal. After the 2006 accident, she underwent three shoulder surgeries, neck surgery, and knee surgery. Claiming injuries from either or both of these accidents, she instituted a tort action claiming damages against the defendants in the earlier incident (the “2004 defendants”), against Mr. Thomas for the 2006 incident, and State Farm as her underinsured insurance carrier.

A.Dr. Steven Knezevich

During the course of its pretrial investigation, State Farm retained Dr. Steven Knezevich, a board-certified orthopedic surgeon, to review Ms. Thorne’s personal injury claims. Dr. Knezevich concluded that Ms. Thorne’s three shoulder surgeries and her knee surgery were unrelated to the 2006 accident involving Mr. Thomas. The parties were ordered to serve their respective witness and exhibit lists by October 29, 2010. After this date, State Farm served an amended -witness and exhibit list which identified for the first time Dr. Knezevich as an expert. Trial was scheduled to begin on January 24, 2011, sixty-nine days hence. State Farm’s witness list also included a summary of Dr. Knezevich’s expected testimony; he was also made available for deposition. And Ms. Thorne’s counsel deposed Dr. Kneze-vich prior to trial. At trial, Ms. Thorne’s counsel cited the late-filed disclosure of Dr. Knezevich to argue that his testimony should be disallowed in its entirety. Because Ms. Thorne had only recently had her third shoulder surgery, the trial court allowed Dr. Knezevich to opine on the need for that surgery but disallowed any opinion testimony from Dr. Knezevich relating to the prior two shoulder surgeries or the knee surgery.

B.Dr. Bain

State Farm hired expert witness Dr. Charles Bain, M.D., who also works as a biomedical engineer, to do a comprehensive analysis of the accident. He works for Biodynamic Research Corp. which researches crush data, the forces involved in vehicle accidents, and exemplar studies. Ms. Thorne claimed that her knee and neck injuries, necessitating past and future treatment and surgery, were caused by her face hitting the steering wheel and her knee hitting the dashboard when Mr. Thomas struck her from behind. She also claimed that she received these injuries despite wearing her seatbelt. Dr. Bain’s investigation resulted in his opinion that Ms. Thorne must not have been wearing a seatbelt because she would not have received these injuries if she had. At trial, Ms. Thorne’s counsel, based upon a Frye challenge, successfully moved to preclude Dr. Bain from testifying as to his opinion about the cause of Ms. Thorne’s neck and knee injuries. Thus, State Farm and Mr. Thomas could provide no evidence on their affirmative defense that Ms. Thorne contributed to these injuries by not wearing her seatbelt.

C.The High-Low Agreement

Just before trial, Ms. Thorne and the 2004 defendants reached a “high-low” agreement. This agreement provided that these defendants would remain in the lawsuit and regardless of whatever amount for which the jury decided they were liable they would pay her a minimum of $100,000 and a maximum of $350,000. Upon discovering this fact, State Farm and Mr. Thomas repeatedly requested leave to inform the jury of the agreement, likening it to a “Mary Carter” agreement. “A ‘Mary Carter Agreement’ ... is basically a contract by which one co-defendant secretly agrees with the plaintiff that, if such defendant will proceed to defend himself in court, his own maximum liability will be diminished proportionately by increasing the liability of the other co-defendants.” Dosdowrian v. Carsten, 624 So.2d 241, 243 (Fla.1993) (prospectively outlawing such agreements in Florida). The trial court denied these defendants such leave, and the jury was never informed of the 2004 defendants’ potential for reduced liability.

D. Denial of Mistrial Based On Plaintiffs Closing Argument

At trial, Ms. Thorne’s counsel in closing argument harped on the lack of defense evidence to dispute the link between the first two shoulder injuries and the knee injury with the 2006 accident. We set forth several passages to illustrate the nature of the argument. State Farm repeatedly objected, but the trial court overruled the objections as well as the final objection that the cumulative effect of these arguments merited a mistrial.

The Defendant Thomas and State Farm didn’t bring a single witness who talked about the knee, not a single witness to talk about the knee. They didn’t bring a single hired gun, like Dr. Foley, to come in and refute that the injury to the knee was caused by the March 5, 2006, accident.
This brings us to the shoulder. Like the knee, they didn’t bring a single witness to talk about the shoulder injury which led to the first two surgeries. They have Dr. Knezevich, who only talked about the third surgery. No one testified from the defendant — any of the defendants disputing that the shoulder injury, the labrum tear, was in fact caused by the March 5, 2006, accident, and that the labrum tear and that surgery that was performed in August of 2007 and the subsequent surgery that was performed in January of 2008 was caused by the March 5 accident.
Not a witness. Not one scintilla, piece of evidence did they have to talk about the shoulder and that the — and deny that the accident of March 5, 2006[,] caused the shoulder, caused the labrum tear, led to the first surgery, and ultimately the second surgery.
And that’s why they didn’t call anybody, because they knew they wouldn’t — they couldn’t — they probably couldn’t get anybody to say it was the shoulder. They couldn’t find any evidence.
The unapportioned damage, and that’s zero, and here’s why. We had two live neck surgeons testify for you in this trial, and they both agreed 100 percent, Dr. Tresser and Dr. Nucci [plaintiffs expert] agree that 100 percent of the neck problems are from the March '06 accident and zero percent of the neck problems are for the October 2004 accident.

II. ANALYSIS

A. Limitation of Dr. Knezevich’s Testimony

Because this issue involves an evidentia-ry matter, we review it under the abuse of discretion standard. See First Republic Corp. of Am. v. Hayes, 431 So.2d 624, 626-27 (Fla. 3d DCA 1983) (stating that exclusion of an expert witness for violation of pretrial orders is a harsh remedy which should be used sparingly).

State Farm filed an amended expert witness list sixty-nine days before trial that for the first time listed Dr. Kneze-vich as an expert in orthopedic medicine and surgery. In accord with pretrial procedure, State Farm further provided a summary of his opinion testimony, supplemental answers to expert witness interrogatories, his full report detailing his findings, and made him available for deposition, of which opportunity Ms. Thorne’s counsel availed himself. Dr. Knezevich’s opinion was that all three shoulder surgeries and her knee surgery were unrelated to the 2006 accident. Despite the fact that Ms. Thorne knew about Dr. Kneze-vich and had deposed him, upon her motion the trial court limited Dr. Knezevieh to testifying only about the third shoulder surgery which had been recently performed.

A trial court has discretion to exclude testimony from a witness not disclosed pursuant to a pretrial order. But Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981), requires a finding of such prejudice before discretion may be exercised. In the Binger context, prejudice is “surprise in fact.” Id. Further, exclusion is a drastic remedy to be utilized only in compelling circumstances. See Clair v. Perry, 66 So.3d 1078, 1080 (Fla. 4th DCA 2011); see also Harrell v. Aztec Envtl., Inc., 921 So.2d 805 (Fla. 1st DCA 2006).

There are a number of factors available for the trial court’s consideration in determining whether to exercise its discretionary power to exclude a witness. The record before us does not evidence that the late-filing of the amended expert witness list naming Dr. Knezevieh for the first time sixty-nine days before trial caused the necessary prejudice to Ms. Thorne.

Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court’s exercise of discretion are: (i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

Binger, 401 So.2d at 1314. State Farm met its burden to show that it fulfilled the requirements that Binger outlined to effectively mitigate the late-filed disclosure of Dr. Knezevieh and thereby curing any prejudice Ms. Thorne might encounter. The trial court allowed Dr. Knezevieh to testify about the third shoulder surgery only based on the fact that it had only been performed three months before trial. But we fail to see how this allowed State Farm and Mr. Thomas any benefit from Dr. Knezevich’s limited testimony when all three shoulder surgeries and the knee surgery were performed after the 2006 accident. In this regard, we conclude that the trial court abused its discretion in limiting the testimony of Dr. Knezevieh. See also Chin v. Caiaffa, 42 So.3d 300 (Fla. 3d DCA 2010); Phillips v. Ficarra, 618 So.2d 312 (Fla. 4th DCA 1993); Melrose Nursery, Inc. v. Hunt, 443 So.2d 441 (Fla. 3d DCA 1984).

The prejudice the trial court’s ruling caused State Farm and Mr. Thomas in limiting Dr. Knezevich’s testimony was compounded by the use Ms. Thorne’s counsel made of his testimony in closing argument, as discussed below.

B. The Striking of the Testimony of Dr. Bain re: Seatbelt and Causation

Although this is an evidentiary issue, we review it de novo. Marsh v. Valyou, 977 So.2d 543, 547 (Fla.2007) (“We review Frye issues de novo, with general acceptance considered as of the time of the appeal.” (citing Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So.2d 1264, 1268 (Fla.2003))).

Dr. Bain would have testified that the injuries to Ms. Thorne’s neck and knee could not have happened had Ms. Thorne been wearing her seatbelt. This testimony was precluded upon Ms. Thorne’s counsel’s Frye challenge. It is clear that Dr. Bain was offering his opinion as to causation, although stated in the negative. But the supreme court in Marsh specifically stated that an expert’s opinion is based on the expert’s training and experience, 977 So.2d at 548, and that “ ‘[m]edical expert testimony concerning the causation of a medical condition will be considered pure opinion testimony — and thus not subject to Frye analysis — when it is based solely on the expert’s training and experience.’ ” Id. (quoting Gelsthorpe v. Weinstein, 897 So.2d 504, 510 (Fla. 2d DCA 2005)). And Ms. Thorne’s counsel specifically admitted at the hearing that biomechanics is not a new or novel science. Because Frye does not apply to testimony of a causal link between trauma and injury, id. at 550, the trial court erred in precluding Dr. Bain from giving his opinion on the lack of causal link between the 2006 accident and Ms. Thorne’s face and knee injuries.

C. The High-Low Agreement

The high-low agreement in this case is not a true Mary Carter agreement, which has been outlawed in Florida. See Dosdourian, 624 So.2d at 246 (“We are convinced that the only effective way to eliminate the sinister influence of Mary Carter agreements is to outlaw their use.”). But the facts of Dosdourian make it analogous to the case before us.

In Dosdourian, the settling defendant would remain in the lawsuit through judgment after reaching an agreement with the plaintiff that she would pay only up to her policy limits. Id. at 242. Over the objection of the nonsettling defendant, the agreement was not introduced into evidence at trial, and the jury found the settling defendant 55% liable for the plaintiffs injuries, the nonsettling defendant 35% liable, and the plaintiff 10% liable. The supreme court analogized this agreement to a Mary Carter agreement and— because the court was outlawing such agreements prospectively only — ordered that on remand the agreement could be allowed to stand but had to be disclosed to the jury at trial. The agreement in Dos- dourian was very similar to the high-low agreement between Ms. Thorne and the 2004 defendants. It is sufficiently similar that Dosdourian demands that it be disclosed to the jury.

The supreme court in Dosdourian addressed the following certified question:

IS A NON-SETTLING DEFENDANT ENTITLED TO HAVE THE JURY INFORMED OF A SETTLEMENT AGREEMENT BETWEEN THE PLAINTIFF AND ANOTHER DEFENDANT WHEREBY THE SETTLING DEFENDANT’S OBLIGATION IS FIXED BUT THE SETTLING DEFENDANT IS REQUIRED TO CONTINUE IN THE LAW SUIT?

Id. at 242. In addressing the particular facts of the case before it, the supreme court held:

Consistent with our decision to ban all future agreements in which the settling defendant remains in the case, we believe that the same policy reasons requiring the disclosure of secret settlement agreements in the “Mary Carter” line of cases apply here, even though the motivations of the settling parties are not as clear. While [plaintiffs] agreement with [the settling defendant] was not the usual Mary Carter agreement, we believe that it falls within the scope of secret settlement agreements which are subject to disclosure to the trier of fact under the principles of Ward v. Ochoa [, 284 So.2d 385 (Fla.1973) ]. As noted by the court below, “[t]he integrity of our justice system is placed in question when a jury charged to determine the liability and damages of the parties is deprived of the knowledge that there is, in fact, no actual dispute between two out of three of the parties.” Dosdourian [v. Carsten ], 580 So.2d [869,] 872 (Fla. 4th DCA 1991) ]. Thus, we answer the certified question in the affirmative.

Id. at 247. Here, on remand at retrial, any high-low agreement must be disclosed to the jury.

D. Plaintiffs Closing Argument

After having successfully limited the extent of State Farm’s and Mr. Thomas’ expert testimonies, Ms. Thorne’s counsel’s closing argument repeatedly suggested to the jurors that:

— The defense did not bring a single ■witness to speak to the claimed knee injury;
— The defense did not bring “a single hired gun” to refute the causation of the knee injury;
— The defense had no witness to speak to the shoulder injury claim that necessitated the first two shoulder surgeries; and,
— The reason the defense called no one was because the defendants could not find such evidence.

When defense counsel objected during closing argument, the trial court overruled the objection thereby permitting Ms. Thorne’s counsel to continue on this theme. And continue on is what transpired. Ms. Thorne’s counsel’s further argument suggested a lack of a scintilla of evidence offered by the defendants and contended the defense’s theory — that the 2006 accident did not cause the damages for which the surgeries were necessary— was merely speculation and further that this speculation was “simply an attempt ... to avoid responsibility.” Ms. Thorne’s counsel concluded his closing argument with multiple statements of “shame on these defendants.”

The law on this point is clear: “Case law indicates it is improper for a lawyer, who has successfully excluded evidence, to seek an advantage before the jury because the evidence was not presented.” JVA Enters., I, LLC v. Prentice, 48 So.3d 109, 115 (Fla. 4th DCA 2010) (citing Carnival Corp. v. Pajares, 972 So.2d 973, 975-76 (Fla. 3d DCA 2007)).

Similar to Ms. Thorne’s case, in JVA, the trial court excluded opinion evidence of a party’s susceptibility to future injuries. In closing argument, the party who had obtained the exclusion of evidence stated: “[W]here is the testimony to support the speculation of some big, bad neck injury, or shoulder [injury] in the past? Where is the testimony or evidence?” Id. at 115 (alterations in original). In reversing the judgment against the defendants, the Fourth District concluded that the argument was prejudicial because it improperly implied that the failure to offer the testimony was because the defendant had no favorable testimony to present to the fact finder. Id. (citing Carnival Corp., 972 So.2d at 975); see also Hernandez v. Home Depot U.S.A., Inc., 695 So.2d 484, 485 (Fla. 3d DCA 1997) (holding that the error in excluding the plaintiffs expert testimony on the issue of negligence was unfairly exacerbated and compounded when in closing defense counsel stated: “What is the evidence that we were negligent?”).

In Carnival Corp., 972 So.2d 973, trial counsel successfully obtained an order excluding testimony on the medical standard of care and after excluding such testimony, commented to the jury that the opposing party failed to offer the very testimony counsel had successfully excluded. “These comments were improper as counsel implied that Dr. Diskin’s failure to offer testimony regarding the standard of care of Carnival’s doctors was because Carnival had no favorable testimony to provide.” Id. at 976. We agree with the Third and Fourth Districts that arguments of this nature are “disingenuous and misleading.” The extent and nature of Ms. Thorne’s counsel’s closing argument has caused reversible error.

Objectionable was Ms. Thorne’s counsel’s contention in closing that the defendants’ evidence and argument were an attempt “to avoid responsibility” and, as a result, the defendants exhibited shameful conduct. A similar argument was offered in Intramed, Inc. v. Guider, 93 So.3d 503, 505 (Fla. 4th DCA 2012) (holding that “[s]erial improprieties in the plaintiffs closing argument, when combined with the procedural prejudice of the untimely disclosure of an expert, operated to deny the defendant a fair trial”). There, counsel argued, “They have never taken responsibility ... and they still take zero responsibility.” Id. at 507. Although counsel in Intramed did not use any variant of the word “shame” in describing the defendant’s conduct, this was the clear inference, and counsel argued repeatedly that the defendant “won’t care.” Id. Initially the Fourth District observed that the “trial court’s rulings early in the closing argument green lighted this theme for plaintiffs counsel.” Id. The court then noted two rationales to support the improper nature of the argument. First, “[t]he closing argument shifted the focus of the case from compensating the plaintiff to punishing the defendant.” Id. Next, as to damages, its purpose is to compensate, “not to make the defendant care, ‘take responsibility,’ or say it was sorry. Counsel’s arguments improperly suggested that the defendant should be punished for contesting damages at trial and that its defense of the claim in court was improper.” Id.

Because Ms. Thorne’s counsel’s repeated arguments in closing were improper and allowed over objection, we agree with State Farm and Mr. Thomas that reversal is mandated.

III. CONCLUSION

State Farm’s and Mr. Thomas’ arguments about these evidentiary errors at trial have merit: The combination of the trial court’s limiting Dr. Knezevich’s expert testimony, excluding Dr. Bain’s opinion testimony based on a Frye challenge, excluding from the jury’s consideration evidence of the high-low agreement, and allowing multiple improper statements in plaintiffs closing argument all constituted reversible error. Accordingly, we conclude that a new trial is warranted.

Affirmed in part, reversed in part, and remanded for a new trial.

KELLY and MORRIS, JJ., Concur.

      . The defendants who were sued for the 2004 accident retained Dr. Steven Tresser, a board-certified neurosurgeon, to testify regarding Ms. Thorne’s neck injury. During discovery, he confirmed that he had also been asked to review her claims as they related to the 2006 accident. His opinion, given during his deposition, was that Ms. Thorne did not incur any permanent injury as a result of either the 2004 or the 2006 accident. At trial and during his direct examination by counsel for the 2004 defendants, Dr. Tresser’s testimony was limited to his opinion that there was no permanent neck injury as a result of the 2004 accident. Mr. Thomas' counsel moved to call Dr. Tresser as his own witness to opine that there was no permanent neck injury from the 2006 accident either. This motion was made despite the fact that Dr. Tresser had not been named pretrial on Mr. Thomas’ expert witness list. But the trial court precluded Mr. Thomas’ counsel from calling Dr. Tresser as its own witness. As in the case of Dr. Kneze-vich (discussed infra), Ms. Thorne's counsel in closing argument highlighted the lack of defense evidence tying the neck injury to the 2006 accident and even went so far as to say that Dr. Tresser agreed with Ms. Thorne's expert that the 2006 accident was the sole cause of her neck problems.

      . The 2004 defendants are appellees Patricia Temples, Marshall Temples, and Eric Wise-man.

      . The 2004 defendants entered into a high-low agreement with Ms. Thome, a provision of which required that they not appeal an adverse verdict. Pursuant to Florida Rule of Appellate Procedure 9.020(g)(2) (defining an appellee as "[e]very party in the proceeding in the lower tribunal other than an appellant”), they are listed in the style of this case despite not appearing in this appeal. State Farm settled its dispute with the 2004 defendants prior to trial, so the only issues in this appeal relate to the 2006 incident.

      . Frye v. United States, 293 F. 1013, 1014 (D.C.1923) ("[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”).

      . Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla. 2d DCA 1967), rejected by Ward v. Ochoa, 284 So.2d 385 (Fla.1973).

      . We dismiss as not preserved for review Ms. Thome's argument that Dr. Bain lacked the qualifications to give an expert biomechanical opinion.

      . Dosdourian provides an expansive discussion on the evils of Mary Carter agreements and their deleterious effect on the judicial system. 624 So.2d at 243-26.

      .
      We recognize that until this opinion Mary Carter agreements were legal in Florida, and we are loath to penalize those who have entered into such agreements. In some instances it might even be impossible to restore the parties to the status quo if such agreements were set aside. Therefore, our holding shall be prospective only and shall not affect the legality of any such agreements that have been entered into pri- or to the date of this opinion. Accordingly, we must decide the instant case upon the premise that the settlement agreement was legal.

        Dosdourian, 624 So.2d at 246.

      . The Fourth District faced a similar argument recently in Saunders v. Dickens, 103 So.3d 871 (Fla. 4th DCA 2012), where it applied the same principle regarding reversible closing argument error but found that Chin and Carnival Corp. were distinguishable from the case before the court. The Fourth District affirmed the final judgment in favor of the defendants because it found that defense counsel had not argued improperly in closing that the plaintiff had provided no evidence of causation.