NORTHCUTT, Judge.
Christopher Tolbert appeals his conviction for trafficking in cocaine by possession. We agree with his assertion that the trial court abused its discretion by admitting evidence of a firearm found during a search of his home, and we reverse and remand for a new trial.
The police executed a search warrant at Tolbert's house at a time when no one was home. When searching the house, the police discovered cocaine in a trash bag that was concealed beneath the kitchen garbage. Inside the trash bag containing the drugs, the police also found mail addressed to Tolbert and a handgun. The police went to the nearby home of Tolbert's mother and spoke on the phone with Tolbert. He came to his mother's home and was arrested.
In the first of three issues on appeal, Tolbert argues that his jury trial was tainted by the admission, over objection, of evidence that a gun was found with the drugs. We conclude that the trial court should not have admitted this evidence. The Florida Supreme Court has held that "in order for evidence of a firearm to be admissible as relevant in a criminal trial, `the State must show a sufficient link between the weapon and the crime.'" Agatheas v. State, 77 So.3d 1232, 1236 (Fla. 2011) (quoting in part Jackson v. State, 25 So.3d 518, 528 (Fla.2009)). "[T]he basic rule that has been consistently followed by our appellate courts is that `if there was no evidence linking any of these firearms to the charged crime, evidence of the firearms would be irrelevant, and should have been excluded upon proper objection.'" Id. (quoting in part Moore v. State, 1 So.3d 1177, 1178 (Fla. 5th DCA 2009)). In this case, the State presented no evidence linking the handgun to the drug trafficking charge.
Even when there is some involvement of firearms in the charged crime, evidence such as this must be excluded when "the relevance is substantially outweighed by the danger of confusion or unfair prejudice." Green v. State, 27 So.3d 731, 738 (Fla. 2d DCA 2010) (discussed with approval in Agatheas, 77 So.3d at 1236-37). In Green, firearms played a part in the crimes charged against the defendant: felony murder perpetrated by a shooting, armed burglary, and armed robbery. According to the codefendants, they went to Green's house to obtain a gun before Green and the others robbed the victim. Over objection, the State was allowed to introduce evidence of three firearms found in Green's home two days after the shooting. On appeal, this court held that two of the firearms, found in a roommate's bedroom, were completely irrelevant because they were not connected either to the crimes or to Green. Id. at 737-38. We further held that the third firearm, found in Green's bedroom, "was marginally relevant to Green's participation in the charged crimes" based on the codefendants' explanation that they went to Green to get a gun. Id. at 738. But because this particular firearm was unconnected to the charged crimes, we held that its relevance was outweighed by the danger of unfair prejudice. Id.
In this case, the State failed to establish any link between the handgun found in the
To conclude that this error was harmless, we must find "beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).
Id. at 1139. Focusing on the effect of the error on the trier of fact, we note that drug trafficking is commonly perceived to be a crime accompanied by violence. See Perkins v. State, 576 So.2d 1310 (Fla.1991) (observing that drug trafficking may involve a propensity for violence but that, under the rule of lenity, it does not qualify as a forcible felony precluding a claim of self-defense). In this case, there is a reasonable possibility that the evidence regarding the handgun influenced the jury in reaching its conclusion that Tolbert was a drug trafficker. Therefore, the improper admission of this evidence was not harmless error, and Tolbert is entitled to a new trial.
We also conclude that the trial court abused its discretion by refusing to allow the defense to present testimony by Tolbert's mother, a witness who had not been listed in discovery, without first considering lesser sanctions. The trial court correctly recognized the need for an inquiry into the potential prejudice caused by the defense's discovery violation. See Richardson v. State, 246 So.2d 771, 775 (Fla.1971) (describing an adequate inquiry into a criminal discovery violation as encompassing the surrounding circumstances including "whether the ... violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the [other party] to properly prepare for trial" (quoting Ramirez v. State, 241 So.2d 744, 747 (Fla. 4th DCA 1970))). We point out that it is necessary for a trial court to make specific findings on whether a violation was inadvertent or willful, whether it was trivial or substantial, and whether it affected the other party's ability to prepare for trial.
McDuffie, 970 So.2d at 322. Although this issue has been rendered moot by our reversal for a new trial, we point out that the trial court should have considered less severe sanctions before excluding the testimony of Tolbert's mother.
In his final issue, Tolbert argues that the trial court should have granted his motion for judgment of acquittal. He contends that the State's circumstantial evidence failed to prove his constructive possession of the drugs. Constructive possession is shown by evidence that a defendant had knowledge of the presence of the drugs and that he or she had dominion and control over them. Jackson v. State, 995 So.2d 535, 539 (Fla. 2d DCA 2008).
At trial, Tolbert testified that he stayed at his house only sporadically and that other people were frequently staying there. He related that there had been a large party in the house during the weekend that preceded the search. If accepted, this evidence would show that the premises were not in Tolbert's exclusive possession. However, in a post-Miranda
For the reasons mentioned, we reverse and remand for a new trial in accordance with this opinion.
Reversed and remanded for a new trial.
LaROSE and KHOUZAM, JJ., Concur.