Franklin v. State, CA

• Decision Date: 28 January 1998
• Docket Number: No. CA,CA
• Citation: 60 Ark.App. 198,962 S.W.2d 370
• Parties: Marcus Antonio FRANKLIN, Appellant, v. STATE of Arkansas, Appellee. CR 97-486.
• Court: Arkansas Court of Appeals

Page 370

962 S.W.2d 370

60 Ark.App. 198

Marcus Antonio FRANKLIN, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 97-486.

Court of Appeals of Arkansas Divisions I and IV.

Jan. 28, 1998.

Bill Luppen, Little Rock, for Appellant.

Winston Bryant, Atty. Gen., C. Joseph Cordi, Jr., Asst. Atty. Gen., Little Rock, for Appellee.

ROAF, Judge.

Appellant, Marcus Antonio Franklin, was convicted in a bench trial of possession of a controlled substance with intent to deliver and maintaining a drug premises. His sole point on appeal is that there is insufficient evidence to sustain the convictions because there is no evidence linking him to drugs found in a house in which he was a joint occupant. We agree and reverse both convictions.

Franklin was charged with possession of a controlled substance with intent to deliver and maintaining a drug premises. Two Little Rock detectives testified at his bench trial on the charges. Detective David Green testified that he assisted in executing a search and seizure warrant at a residence in College Station and that there were two people present at this house, Franklin and his co-defendant, Tyrone Johnson. Detective Green further testified that he found cocaine hidden under a dog house in the back yard, and that there were three dogs chained in the yard.

Detective Kevin Tindle testified that on a prior, unspecified date, he had made a controlled narcotics purchase from the residence, but that he could not see the people during the sale and could not say that Franklin was involved. Detective Tindle stated that he also participated in the search and seizure, and located an off-white, rock-like substance in the house hidden under a piece of carpet in the southeast bedroom. He testified that no one was found in that room and that Franklin was found asleep in the northeast bedroom. He further testified that he found no drugs in Franklin's room, on his person, or in his possession. The police did not find drugs or paraphernalia in either of the two cars that were parked outside, and found no paperwork having either the occupant's or the owner's name.

Franklin's father, Lewis Franklin, testified that he owned the house and that he was aware that dogs were on the premises. He said that the dogs were not Franklin's and that Franklin was afraid of dogs and did not like them. He also stated that Johnson and Franklin were living in the house and that they sometimes paid rent. At the conclusion of the trial, Franklin was convicted of both charges and was sentenced to serve forty months in the Arkansas Department of Correction. He appeals from both convictions.

On appeal, Franklin argues that the trial court erred in failing to grant his motion for directed verdict based upon the insufficiency of the evidence. Although Franklin's motion for directed verdict challenged the sufficiency of the evidence only for the charge of possession, a motion for directed verdict is not required in a bench trial to preserve for appeal the issue of sufficiency of the evidence. Mackey v. State, 56 Ark.App. 164, 939 S.W.2d 851 (1997). Consequently, we may consider the merits of his appeal of both convictions.

Franklin argues that because joint occupancy was established, the State must prove some additional link between him and the cocaine that was found hidden in the bedroom or under the dog house. He contends that the State failed to do so because there was no evidence that he had control over the narcotics or even knew that drugs were present. He argues that he was not found in the bedroom where the cocaine was discovered and that he did not own the dogs. He also argues that there was no evidence that he acted suspiciously, had made any previous sales of illegal drugs, or made any incriminating statements which would indicate that he had knowledge of the cocaine, and adds that cocaine was not found in common areas throughout the house or in plain view.

The State counters that the large quantity of narcotics found in the house and under the dog house, 10.502 grams, Franklin's father's ownership of the house, and the fact that a drug sale had previously occurred at the residence, constitute substantial evidence linking Franklin to the contraband. We do not agree.

In order to sustain a conviction for possession of a controlled substance, the State need not prove that the accused had actual physical possession of the controlled substance. White v. State, 47 Ark. App. 127, 886 S.W.2d 876 (1994). Constructive possession, which is control or right to control the contraband, is sufficient. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). 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.

Constructive possession can also be inferred when the controlled substance is in the joint control of the accused and another. White, supra. However, joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor linking the accused to the contraband. White, supra. In such cases, the State must prove two additional elements: (1) that the accused exercised care, control, and management over the contraband and (2) that the accused knew the matter possessed was contraband. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995) (quoting Plotts v. State, 297 Ark. 66, 69, 759 S.W.2d 793, 794 (1988)).

Although the State cites a number of joint-occupancy cases in support of its contention that there are sufficient factors linking Franklin to the contraband to support both convictions, it is clear that these authorities may be distinguished from the facts in this case. In Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991), the supreme court stated that there was substantial evidence of constructive possession when at the time of the raid Nichols was found seated at the kitchen table of his residence with drugs in plain view on the table in front of him. In Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990), the court held that there was evidence from which the jury could conclude that the appellant exercised control over marijuana and paraphernalia found in a closet of a home formerly occupied by him and his ex-wife and owned by his father, where his ex-wife testified that he received shipments of marijuana during their marriage and identified drug paraphernalia and other items found with the...