Jones v. State

• Decision Date: 29 January 2004
• Docket Number: No. CR 03-1185.,CR 03-1185.
• Citation: 144 S.W.3d 254,355 Ark. 630
• Parties: Cornell D. JONES v. STATE of Arkansas.
• Court: Arkansas Supreme Court

144 S.W.3d 254

355 Ark. 630

Cornell D. JONES v. STATE of Arkansas.

No. CR 03-1185.

Supreme Court of Arkansas.

January 29, 2004.

Petition for review from the Court of Appeals.

William H. Craig, Little Rock, for appellant.

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

DONALD L. CORBIN, Justice.

On August 20, 2002, the Sebastian County Circuit Court entered an order revoking Appellant Cornell D. Jones's suspended sentences based on the court's finding that he constructively possessed marijuana with the intent to deliver. The marijuana was found in a car in which Appellant was a passenger. He appealed the revocation to the Arkansas Court of Appeals, which reversed the judgment on the ground that there was insufficient evidence. See Jones v. State, 83 Ark.App. 186, 119 S.W.3d 48 (2003). We granted the State's petition for review of this decision, pursuant to Ark. Sup.Ct. R. 2-4. When we grant review following a decision by the court of appeals, we review the case as though it had been originally filed with this court. See Zangerl v. State, 352 Ark. 278, 100 S.W.3d 695 (2003); Ilo v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). We affirm the judgment of revocation.

We note at the outset our well-settled law regarding revocation of probation or suspended sentence. To revoke probation or a suspended sentence, the burden is on the State to prove the violation of a condition of the probation or suspended sentence by a preponderance of the evidence. Ark.Code Ann. § 5-4-309(d) (Supp.2003). See also Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002); Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). On appellate review, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Id. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for revocation of probation or suspended sentence. Id. Thus, the burden on the State is not as great in a revocation hearing. Id. Furthermore, because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, we defer to the trial judge's superior position. Id.

In the present case, the prosecuting attorney filed a petition to revoke Appellant's suspended sentences on two grounds: (1) Appellant committed the offense of possession of marijuana with intent to deliver; and (2) Appellant failed to provide proof of enrollment or completion of a GED. The latter ground was not pursued during the revocation hearing. As for the first ground, the prosecutor presented proof that Appellant had been a passenger in a car driven by Marcus Medlock, in which police discovered a sizeable amount of marijuana, packaged in four individual sandwich bags. The marijuana had been discovered during a consent search, following an officer's observation of a hand-to-hand transaction between the Medlock car and another car and the officer's subsequent detection of an odor of burnt marijuana coming from the car. No marijuana or other contraband was found on Appellant's person.

This court has consistently held that possession of contraband may be proved by constructive possession, which is the control or right to control the contraband; thus, it is not necessary for the State to prove actual physical possession of the contraband. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002); Bradley, 347 Ark. 518, 65 S.W.3d 874. To prove constructive possession, the State must establish that the defendant exercised care, control, and management over the contraband. Polk, 348 Ark. 446, 73 S.W.3d 609. However, possession may be implied when the contraband is found in a place that is immediately and exclusively accessible to the accused and subject to his dominion and control. Id.; Bradley, 347 Ark. 518, 65 S.W.3d 874. Similarly, constructive possession may be implied when the contraband is in the joint control of the accused and another; however, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Id. There must be some additional factor to link the accused with the controlled substance. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003); Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). In other words, there must be some evidence that the accused had knowledge of the presence of the contraband in the vehicle. Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990); Ravellette, 264 Ark. 344, 571 S.W.2d 433.

In the present case, the prosecutor presented one witness, Officer Greg Napier of the Fort Smith Police Department. He testified that on May 10, 2002, around midnight, he was patrolling an area of town that was a high-crime area, known for the trafficking of drugs and prostitution. He observed two cars stopped in the middle of the road, facing opposite directions, with the driver's side of each car situated next to the other. One of the cars was a green Ford Contour. As he was watching the cars, the officer observed a third car approach the two parked in the roadway. The two vehicles did not yield to the third car, so it drove around them. He also observed something being handed between the two cars, which appeared to him to be a possible drug transaction. Specifically, he stated that it looked like someone in the Contour handed something across to a person in the other car.

At that point, the officer pulled up behind the Contour. When he did so, the other car drove off. He then turned on his blue lights, got out of his patrol car, and approached the Contour. As he approached, he noticed that the windows were down and he smelled what he thought was the odor of burnt marijuana coming from inside the car. He stated that he was familiar with the odor of marijuana both burnt and unburnt, and that the odor he smelled was of burnt marijuana. However, he described the odor as being somewhat masked by the strong odor of air freshener. He stated that the air freshener was "kind of messing with" his sinuses and, thus, causing him to doubt himself, but that he was "pretty confident" that what he smelled was marijuana.

Officer Napier asked the vehicle's two occupants, Medlock and Appellant, to step out of the car. He then obtained from Medlock consent to search the car for contraband. During the search, the officer discovered four sandwich bags containing marijuana in an ashtray located in the console between the driver's and passenger's seats. He described the ashtray as being on the back of the console, for persons in the back seat to use. He stated, however, that a person sitting in either front seat could simply turn and reach the contents of this ashtray. Napier also stated that the bags of marijuana contained equal portions and were neatly rolled up, which, based on his training and experience, is how the drug is sold. Napier did not find any other contraband. Both Medlock and Appellant denied knowing that the marijuana was in the car.

Appellant presented testimony from Medlock's girlfriend, Kristi Johnson, and his mother, Marian Medlock. Johnson did not testify in person; rather, Appellant presented her testimony from Medlock's revocation hearing.¹ She testified that the car was hers and that the marijuana was hers. She stated that she had purchased the marijuana an hour or half-hour prior to Medlock being stopped. She described the marijuana as being in two or three bags. When asked for details about the purchase, Johnson stated that she did not know whom she had bought it from, where the purchase occurred, or how much she paid for it. She stated, however, that she had not smoked any of the marijuana that night.

Mrs. Medlock testified that she had been in the other car that Officer Napier had observed, although she disputed that the cars were stopped next to each other in the middle of the road. She said that she had borrowed three dollars from her son that night for a pack of cigarettes. She explained that she had stopped her son and Appellant coming out of a parking lot. She then got out of the car she was riding in, got the money from her son, and got back into the car and drove away. She opined that this was the hand-to-hand transaction that Officer Napier had observed. On rebuttal, Napier disputed Mrs. Medlock's version of events, stating that while he was observing the two cars, no one ever got out of either one.

At the conclusion of the hearing, the trial judge made the following findings. First, he found that Kristi Johnson's testimony was not credible. He found that the timing of her confession, i.e., at her boyfriend's revocation hearing, was suspect. He also questioned her motivation, finding that her testimony was given in order to try and absorb blame for Medlock and Appellant. He found further that Johnson's lack of specific details about the drug transaction was of concern, particularly that she did not testify to the correct number of bags of marijuana that she allegedly...