Hodge v. State

• Decision Date: 22 October 1990
• Docket Number: No. CR,CR
• Citation: 797 S.W.2d 432,303 Ark. 375
• Parties: Gene William HODGE, Appellant, v. STATE of Arkansas, Appellee. 90-62.
• Court: Arkansas Supreme Court

Page 432

797 S.W.2d 432

303 Ark. 375

Gene William HODGE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 90-62.

Supreme Court of Arkansas.

Oct. 22, 1990.

Matthew Horan, Fort Smith, for appellant.

R.B. Friedlander, Sol. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The appellant, Gene William Hodge, was convicted of possession with intent to deliver methamphetamine, and sentenced to life imprisonment and a fine of $50,000.

Hodge raises six points of error on appeal. Since we find merit in Hodge's first argument, that the verdict was not supported by legally sufficient evidence, we need not address the remaining points of error.

On December 27, 1988, Arkansas undercover police arrested Rick Spears for selling narcotics. Spears agreed to cooperate with the police in establishing a case against Hodge. The same evening, Spears, wearing a police wire, went to Hodge's residence to arrange a buy of one ounce of methamphetamine, or "crank." Hodge related that he did not have any on hand and attempted to reach his suppliers, "Bo and Belinda," by phone. The call was unsuccessful but Hodge told Spears he would contact Bo and Belinda and obtain an ounce the following day.

On December 28, 1988, Spears called Hodge and they agreed to meet at 6:30 p.m. to consummate the sale. Police set up surveillance of Hodge that afternoon. They followed him from his girlfriend's residence to nearby Sallisaw, Oklahoma, where he stopped in the parking lot of a truck stop. Shortly thereafter, Bo Bates and Belinda Flowers, recognized by one of the surveillance officers as a couple previously arrested for running a drug lab, arrived in a pickup truck. Hodge left his car and joined Bates and Flowers in the truck. After approximately fifteen minutes, Hodge and Flowers emerged from the truck, got in Hodge's car and drove to the state line, heading for Fort Smith, Arkansas.

On the Arkansas side of the bridge, as Hodge and Flowers entered Fort Smith, waiting police signalled for Hodge to stop his car. Hodge accelerated and prompted a high speed, sixteen block chase through town. The state presented evidence that Hodge's car may subsequently have begun leaking transmission fluid, causing it to stop. Hodge and Flowers were then arrested. A search of the vehicle and its occupants revealed only a small amount of marijuana in Flowers' purse and thirty to forty dollars in Hodge's possession.

After Hodge and Flowers were incarcerated, a police officer retraced the route of the chase and, halfway back along the route, scattered up to twenty-five feet beyond an intersection where Hodge had turned, he found an empty "Pringles" potato chip can and two "Ziploc" bags containing a total of what was later identified as approximately two ounces of methamphetamine.

In criminal cases on appeal, where the appellant challenges the sufficiency of the evidence, we will affirm the trial court's decision if there is substantial evidence to support the findings. See Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). We note, at this juncture, that the state makes no attempt to argue the facts of the case before us in its brief but merely relies on its conclusory contention that the evidence was sufficient. We conclude, however, from the presented facts, that the evidence was not sufficient and that the jury could not have reached its guilty verdict without resorting to suspicion and conjecture.

Hodge was charged with possession with intent to deliver methamphetamine. We have often said that proof of actual or physical possession is not required. See Wade v. State, 267 Ark. 1101, 594 S.W.2d 43 (1980). A person can be in constructive possession of contraband when he either maintains control or a right to control. See Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986).

We have established the requisite proof for constructive possession in a long line of cases concerning joint occupancy. Where contraband is discovered in jointly occupied premises, and there is no direct evidence that it belongs to a particular occupant, some additional factor must be present linking the accused to the contraband. The state must prove that the accused exercised care, control and management over the contraband. See Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988); Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). The same analysis applies here. Certainly, where narcotics are found in an area entirely outside the control of the defendant and exposed to the public at large, the state must provide more definite factors linking the defendant to the contraband than were provided here.

The evidence presented by the state, to link Hodge to possession of the methamphetamine found on the roadside, included the taped conversations between Hodge and Spears; Hodge's meeting with known drug dealers, Bo Bates and Belinda Flowers; and the fact that Hodge fled from the police.

The evidence presented by Hodge, however, cast overwhelming doubt on his connection to the methamphetamine....