Darrough v. State, CR

• Decision Date: 30 October 1995
• Docket Number: No. CR,CR
• Citation: 908 S.W.2d 325,322 Ark. 251
• Parties: Leo DARROUGH, Appellant, v. STATE of Arkansas, Appellee. 95-590.
• Court: Arkansas Supreme Court

Page 325

908 S.W.2d 325

322 Ark. 251

Leo DARROUGH, Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-590.

Supreme Court of Arkansas.

Oct. 30, 1995.

Hugh Finkelstein, Little Rock, for appellant.

Vada Berger, Asst. Attorney General, Little Rock, for appellee.

DUDLEY, Justice.

Appellant Leo Darrough was convicted in a bench trial of two counts of possession of cocaine with intent to deliver, one count of simultaneous possession of drugs and firearms, one count of possession of marijuana, one count of possession of a firearm by a felon, and one count of maintaining drug premises. In addition, the trial court also revoked appellant's probation from a prior conviction. We affirm the convictions and the revocation of probation.

I. Crimes Committed on August 17, 1993

At 11:50 p.m., on the night of August 17, 1993, Little Rock police officers executed a search warrant at 822 Rice Street. Upon entering the house, the officers found appellant Leo Darrough and Alice Plummer lying on a bed. In the same bedroom they saw a bag that contained a large, white, rock-like substance and several smaller pieces of the same substance; several pieces of white, rock-like substance in a small bottle; and several pieces of an off-white, rock-like substance sitting on the dresser. The bedroom was only about ten feet by twelve feet. The officers found a bottle containing pieces of a white substance in one of the bedroom closets. They observed a change purse containing three white, rock-like substances on the dining room floor. All of the white substances subsequently proved to be of a cocaine base. The police additionally found a plastic packet containing green vegetable matter on the floor of the bedroom and two small plastic packets of green vegetable matter on top of the entertainment center in the bedroom. These substances were later proved to be marijuana. Both closets in the bedroom had men's clothing and shoes.

The police had used a confidential informant to purchase drugs with a marked twenty dollar bill at the residence earlier the same day. The person who sold the drugs to the confidential informant was a female. The police found $3,120.00 in cash sitting on a stereo speaker in the bedroom, and the marked money was included in that cash. The officers also found a loaded Winchester .20 gauge shotgun in the living room. Appellant, a felon, admitted that he owned the shotgun, but said he took it to the house to give to Ms. Plummer for her protection.

Appellant told one officer that the residence formerly belonged to his brother, Thomas Darrough, and that he acquired the house upon his brother's death. He stated that a man had a key to the house and would leave cocaine there and come back later to pick it up. He stated that the cocaine and the large amount of cash found in the house belonged to this man. He thought the man gave money to children for selling drugs. Appellant stated that the man had been coming to his house for approximately six to eight months.

Appellant contends that the State failed to establish that he was in possession of the drugs and shotgun. We have said that in order to convict a defendant on possession of a controlled substance, the State need not prove that the accused had actual possession of the controlled substance. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession, which is control or right to control the contraband, is sufficient. Id. at 50, 643 S.W.2d at 253. Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id.

Where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985). See Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). In such cases, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband and (2) that the accused knew the matter possessed was contraband.

Plotts v. State, 297 Ark. 66, 69, 759 S.W.2d 793, 794 (1988).

Here, there was substantial evidence that appellant lived in the house and that he and Alice Plummer were in the bedroom of the house at the time of the search. There was a considerable quantity of drugs and a large amount of cash in open view in the bedroom. The cash included a marked twenty dollar bill that had been used to buy drugs at the same address that same day. A loaded shotgun was nearby. We have no hesitancy in holding that these facts constitute substantial evidence that appellant knew of and had control of the contraband, possessed it with the intent to deliver, had simultaneous possession of cocaine and the firearm, and that he was a felon in possession of a firearm.

II. Crimes Committed on November 2, 1993

On November 2, 1993, Little Rock police officers executed another search warrant at the house at 822 Rice Street and at the adjacent salvage yard. The house was vacant, but the officers found white paper with cocaine residue on the kitchen counter, $309.00 on the bedroom dresser, a test tube with cocaine residue in the kitchen sink, and a razor blade with cocaine residue on the kitchen counter. Officers also found a Waterworks bill for Thomas Darrough.

Detective James King testified that he had seen appellant at the adjacent salvage yard "dozens and dozens of times." Appellant and two other...