Bradley v. State, CR-18-326

• Court: Arkansas Court of Appeals
• Writing for the Court: BRANDON J. HARRISON, Judge
• Citation: Bradley v. State, 2018 Ark. App. 586, 564 S.W.3d 569 (Ark. App. 2018)
• Decision Date: 05 December 2018
• Docket Number: No. CR-18-326,CR-18-326
• Parties: Allen Dale BRADLEY, Appellant v. STATE of Arkansas, Appellee

2018 Ark. App. 586

564 S.W.3d 569

Allen Dale BRADLEY, Appellant

v.STATE of Arkansas, Appellee

No. CR-18-326

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered December 5, 2018

Terrence Cain and Jimmy C. Morris, Jr., Little Rock, for appellant.

Leslie Rutledge, Att'y. Gen., by: Rachel Kemp, Ass't. Att'y. Gen., for appellee.

BRANDON J. HARRISON, Judge

This case turns on whether the State proved that Allen Bradley, who was already a felon, constructively possessed a Glock semiautomatic 9 mm pistol on 16 February 2017 in violation of Ark. Code Ann. § 5-73-103(c)(1)(A) (Repl. 2016). A police officer found a gun inside a cardboard box that was either near or within a shed approximately twenty yards from where Bradley was arrested in the backyard of a jointly occupied house. After a bench trial, the circuit court convicted Bradley of being a felon in possession of a firearm. The court sentenced Bradley to twenty years' imprisonment in the Arkansas Department of Correction and four years' suspended imposition of sentence. Bradley appeals the conviction and argues that the record does not sufficiently support it. We agree that the State did not sufficiently prove that Bradley constructively possessed a firearm in violation of the law and therefore reverse the conviction.

I.

An alleged domestic disturbance at a house in Little Rock, to which police officers were dispatched, ended with Bradley's arrest and the State charging him with six offenses: a felon possessing a firearm; felony aggravated assault on household or family member; felony aggravated assault (two counts); felony third-degree battery; and a criminal-mischief misdemeanor.

We pick up the story with the on-scene police officers telling the circuit court about finding Bradley in the backyard of the house to which they had been called. And we confine our summary of the evidence to the firearm-possession charge for reasons that will become clear in due course.

During the bench trial, Little Rock police officer Timothy Pope testified that Bradley did not have a gun on his person when he was arrested in the backyard. According to Officer Pope, Bradley was arrested "probably 25 feet from the back door—25 yards or so from the back door of [the] house." The 9 mm handgun, according to Officer Pope, "was found in the backyard right outside the back door" by Officer McGuire.

On cross-examination, Officer Pope said that he had talked to two people in the front yard, but he did not speak with people who were inside the house. He said an older teenager, a preteen, and a "younger baby" were inside the house. When asked, the officer agreed that other people could have been in the backyard before he arrested Bradley. When asked by defense counsel where Officer McGuire found the gun, Officer Pope said, "I don't know where he found it. There was—once you go out the back door, there's a small shed. I did see the small shed in the backyard[.]" Officer Pope could not say how far the shed was from the back door of the house. Officer Pope said that he did not see Bradley with the gun, did not see anyone find the gun, and did not test the gun to see if Bradley had touched it. Bradley, according to Officer Pope, was "exiting the area" but was not running when he was arrested in the backyard.

Little Rock police officer Steve McGuire said that he found a Glock pistol "in a metal storage building behind the residence and it was inside of a cardboard box." He agreed that "it was visible from outside that building" and "in the backyard of the residence." Officer McGuire identified State's exhibit no. 4 as a picture of the gun inside an open cardboard box. When Officer McGuire found the gun, there was a round in the chamber and a loaded magazine in it. Photographs of the magazine were admitted as State's exhibit nos. 5 and 6. The officer also identified the open cardboard box in which the gun was found as State's exhibit no. 7; and the gun itself was marked State's exhibit no. 8. Officer McGuire did not participate in taking Bradley into physical custody because he was "across the yard" at the time. According to Officer McGuire, Bradley's arrest occurred twenty yards from where the gun was located.

On cross-examination Officer McGuire said that he never saw Bradley touch the weapon, that there were several people in the house when the police arrived, that he did not know the nature of the relationship Bradley had with the residents, and that the gun he recovered was never tested for fingerprints.

Officer Tony Nativi testified too. He said he did not know the number of people in the house or their ages, but there were some children "in their teenage years." He did not see Bradley possess a gun or hurt anyone while he was there.

Detective Aaron Oncaen was the fourth law-enforcement officer to testify. He filled out an arrest-disposition form for Bradley on 16 February 2017. The detective said that he had completed a Miranda rights form the same day on Bradley's behalf. When asked, he agreed that Bradley had indicated that his address was the same one as the house where he was arrested. The Miranda form itself was not introduced as evidence during the trial.

II.

After listening to extensive arguments by the parties' counsel and dismissing five of the six counts the State had filed against Bradley, the circuit court denied Bradley's motion to dismiss the felon-in-possession charge. At the close of all the evidence, the court was then faced with determining whether the State had met its burden of proof that Bradley had unlawfully possessed a firearm, which at the time of the decision was wholly based on a constructive-possession theory. On the possession charge, the court made the following ruling from the bench:

The Court finds that the State has met its burden of proof as to count one on the charge of possession of firearms by certain persons based upon the proof that the Glock firearm located in the rear of the defendant's residence 5019 Frazier Pike was located in an area from which the defendant was seen by police officers to have been fleeing or running. It was located in close proximity in time from the time that the defendant was being pursued. It was located in an open space, in an area near where defendant was apprehended.

Those factors not only are sufficient to persuade the Court that the firearm was possessed by the defendant but those factors dispel other possibilities with regard to the possession of that firearm at the point in time inasmuch as all other persons who have been identified during the course of the trial were on the opposite side of the residence except for the person identified as children who under the proof were testified to have been inside the residence.

Inasmuch as the defendant was a resident of 5019 Frazier Pike, was the person identified in the vicinity of the firearm that was apprehended, the Court finds that the State has met its burden of proof and finds the defendant guilty of possession of firearm by certain persons.

III.

The circuit court convicted Bradley of possessing the firearm based on circumstantial evidence. Consequently, we must consider whether the evidence indicated Bradley's guilt and excluded all other reasonable hypotheses about who may have possessed or controlled the gun. White v. State , 2014 Ark. App. 587, at 4, 446 S.W.3d 193, 196. Whether circumstantial evidence excludes every other reasonable hypothesis is a decision for the fact-finder; but when the evidence leaves the fact-finder to speculate and conjecture, a conviction cannot stand. Id.

Arkansas Code Annotated section 5-73-103, absent exceptions that do not apply here, prohibits a convicted felon from possessing or owning a firearm. Ark. Code Ann. § 5-73-103 (Repl. 2016). It is undisputed that Bradley was a convicted felon before the arrest and conviction in this case; his prior felony convictions were admitted into evidence during the bench trial without objection. The only point in dispute was whether he possessed the Glock pistol in violation of the law. A conviction for violating section 5-73-103(a)(1) may be based on actual or constructive possession.

Lambert v. State , 2017 Ark. 31, 509 S.W.3d 637. This is a constructive-possession case as presented to this court. To constructively possess contraband means knowing it is present and having control over it. Id. at 3, 509 S.W.3d at 640 (citing United States v. Roberts , 953 F.2d 351, 353 (8th Cir. 1992) ) (noting that "constructive possession" has been defined as "knowledge of presence plus control"). Possession may be imputed when the contraband is found in a place that is immediately and exclusively accessible to the accused and subject to his or her dominion and control, or to the joint dominion and control of the accused and another. Id. Control and knowledge can be inferred from the circumstances, like the proximity of the contraband to the accused, whether it is in plain view, and who owns the property where the contraband is found. Nichols v. State , 306 Ark. 417, 815 S.W.2d 382 (1991). An accused's suspicious behavior, coupled with physical proximity to the contraband, can indicate possession. Pokatilov v. State , 2017 Ark. 264, at 4, 526 S.W.3d 849, 854.

In Williams v. State , this court held that there was not enough evidence to convict on a firearm-possession charge when the defendant was outside an apartment when police arrived, and he was already in custody when police found the gun—under a bed, inside the apartment. 94 Ark. App. 440, 236 S.W.3d 519 (2006). The State presented no testimony on who had placed the gun under the bed or whether Williams had slept in the same bedroom where the gun was found. This court went so far as to note that no evidence was presented that Williams had slept on the same side of the bed as the gun was found. In fact, the State did not...