Jones v. State

• Decision Date: 27 May 2004
• Docket Number: No. CR 03-1129.,CR 03-1129.
• Citation: 182 S.W.3d 485
• Parties: Jonah Vaughn JONES v. STATE of Arkansas.
• Court: Arkansas Supreme Court

182 S.W.3d 485

Jonah Vaughn JONES v. STATE of Arkansas.

No. CR 03-1129.

Supreme Court of Arkansas.

May 27, 2004.

John W. Settle, Fort Smith, for appellant.

Mike Beebe, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., Little Rock, for appellee.

RAY THORNTON, Justice.

This appeal arises from the conviction of appellant, Jonah Vaughn Jones, for possession of methamphetamine, a violation of Ark.Code Ann. § 5-64-401 (Supp.2003) and a class C felony, and possession of drug paraphernalia, a violation of Ark. Code Ann. § 5-64-403 (Supp.2003) and a class C felony. Appellant was sentenced as an habitual offender, pursuant to Ark. Code Ann. § 5-4-501 (Supp.2003), to eight years on the methamphetamine-possession charge and ten years on the drug-paraphernalia charge. On appeal, he challenges the sufficiency of the evidence on the two convictions, and he argues that the trial court erred in the penalty phase by failing to give correct jury instructions on the imposition of a fine. We affirm the convictions and remand for resentencing on the issue of an erroneous jury instruction given during the penalty phase of the trial.

On June 5, 2003, Fort Smith police officers were advised to look for a red Chevrolet pickup truck with Oklahoma license tags because the driver was suspected of unauthorized use of a vehicle. Officer Jeff Carter saw the vehicle, but was unable to stop it because he was transporting a prisoner at the time. He radioed Officer Eric Williams and told him that there were three occupants in the truck: a black male driver, a white female seated in the middle, and a white male on the passenger's side.

Officer Williams testified that he stopped the vehicle at 4:00 p.m. that day and recognized appellant as the driver of the vehicle. When appellant got out of the truck, Officer Williams arrested him. While conducting a pat-down search, Officer Williams found a syringe in the right front pocket of appellant's pants. At trial, Detective Paul Smith, an expert witness for the State, testified that syringes are commonly used to inject methamphetamine.

Another officer arrived at the scene and took the other male occupant, Mark Evans, into custody while Officer Williams conducted a search of the truck. During the search, Officer Williams seized five plastic bags with white residue that were behind the driver's seat. Cindy Moran, a chemist with the State Crime Laboratory, testified that the plastic bags contained methamphetamine.

Appellant was charged by an amended felony information with the offenses of possession of methamphetamine and possession of drug paraphernalia. Neither appellant nor Evans admitted that they owned the plastic bags. Officer Williams testified that he did not see anyone put anything behind the seat.

At trial following the State's case-in-chief, appellant moved for a directed verdict on the methamphetamine charge, arguing that there was insufficient evidence to prove that he was in constructive possession of the substance, or in the alternative, that there was no showing of a useable amount of methamphetamine because of the weakness of the substance. Appellant also moved for a directed verdict on the drug-paraphernalia charge. The trial court denied both motions. Appellant renewed his motions for directed verdict after the defense rested, and the trial court again denied appellant's motions.

Appellant was found guilty by a jury of possession of methamphetamine and possession of drug paraphernalia. Prior to the sentencing phase of the trial, appellant objected to the trial court's giving the AMCI 2d 9202 jury instruction, which does not allow the jury to consider imposing only a fine. Appellant proffered modified jury instructions and verdict forms, but the trial court rejected these forms.

The jury then sentenced appellant to eight years for the offense of possession of methamphetamine and ten years for the offense of possession of drug paraphernalia. The trial court ordered the sentences to run consecutively. The judgment and commitment order was entered on June 10, 2003. Appellant brings his appeal from that order.

Recently, in Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004), we articulated the standard of review for motions for directed verdict:

It is well settled that we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Mills v. State, 351 Ark. 523, 95 S.W.3d 796 (2003); Williams v. State, 346 Ark. 304, 57 S.W.3d 706 (2001). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. 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. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Williams, 346 Ark. 304, 57 S.W.3d 706.

Jordan, supra.

For his first point on appeal, appellant argues that the trial court erred in denying his motion for directed verdict on the constructive-possession charge. Specifically, appellant contends that there was insufficient evidence to sustain the charge of constructive possession of methamphetamine.

We stated the rule regarding constructive possession of a controlled substance in George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004):

We have explained that the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused. Constructive possession may be established by circumstantial evidence. When seeking to prove constructive possession, the State must establish that the defendant exercised care, control, and management over the contraband. This control can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found.

George, supra (citations omitted).

Further, we have opined that joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). There must be some other factor linking the accused to the drugs. Id. Other factors to be considered in cases involving automobiles occupied by more than one persons are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused's personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion and control over it; and (5) whether the accused acted suspiciously before or during the arrest. Id.

Keeping these well-established principles in mind, we turn to our review of the sufficiency of the evidence of appellant's constructive-possession conviction. Appellant concedes in his brief that the third and fourth factors are satisfied: that he was driving the vehicle and that the substance was in near proximity to the driver's seat. However, appellant argues that, under the above Mings factors, the substance was not in plain view, that it was not in appellant's personal effects, and that there was no testimony that he acted suspiciously during his arrest.

Appellant's argument is unavailing because the third and fourth factors outweigh the others. According to the testimony of Officer Carter, he was notified that a black male was driving a red Chevrolet pickup truck with Oklahoma tags. When Officer Carter stopped the vehicle, appellant was driving the vehicle. According to the testimony of Officer Williams the five plastic bags with the white residue were found behind the driver's seat of the vehicle. These circumstances satisfy the third and fourth factors of constructive possession, as appellant was the driver of the vehicle, the drugs were found directly behind the driver's seat, and he exercised dominion and control over the vehicle. Additionally, a syringe, which was described as drug paraphernalia by Detective Smith, was found on appellant's person. Detective Smith testified that syringes are the most common method of injecting methamphetamine.

We agree with the State that Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000) is controlling precedent as to this case. In Dodson, appellant was accompanied by two other passengers when the vehicle was stopped by a police officer for a traffic violation. The police officer then saw a brown leather satchel protruding from the right side of the passenger's seat where another passenger had been sitting, and during a search, both marijuana and methamphetamine were found. A large sum of cash was also discovered. We held that the appellant in that case constructively possessed the controlled substances because, notwithstanding that the drugs were found on the other side of the vehicle, he was in close proximity to them, he was in control of the vehicle, and he acted suspiciously during arrest. Id.

Although there was no testimony that appellant in the present case acted suspiciously, we believe that Dodson applies because of the combined third and fourth Mings factors in addition to drug paraphernalia being found on appellant's person. Based upon our standard of review in viewing the evidence in the light most favorable to the State, we cannot say that the trial court erred in denying appellant's motion for directed verdict on the constructive-possession charge.

For his second point on appeal, appellant argues that the trial court erred in denying his motion for directed verdict on the constructive-possession charge for the lack of a usable amount of methamphetamine. Specifically, appellant contends...