Kastl v. State

• Decision Date: 15 October 1990
• Docket Number: No. CR90-124,CR90-124
• Parties: Tracy KASTL, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 848

796 S.W.2d 848

303 Ark. 358

Tracy KASTL, Appellant, v. STATE of Arkansas, Appellee.

No. CR90-124.

Supreme Court of Arkansas.

Oct. 15, 1990.

Patricia A. Page, Mena, for appellant.

John D. Harris, Asst. Atty. Gen., Little Rock, for appellee.

PRICE, Justice.

Tracy Kastl, age 17, was found to be a delinquent and was convicted of being a minor in possession of alcohol. Pursuant to Act 93 of 1989, the appellant's driver's license was suspended for a period of one year. Appellant brings this appeal, raising two arguments: (1) there was insufficient evidence to support her conviction, and (2) Act 93 of 1989 violates the Equal Protection Clause of the United States Constitution and Ark. Const. art. 2, §§ 2 and 3. We find the evidence was insufficient to support the conviction; therefore we reverse and dismiss without reaching the constitutional issue.

In February 1990, appellant was one of five passengers in a vehicle that was parked in a parking lot in Waldron, Arkansas. The vehicle was owned by Terry Lunsford and driven by Jamie May.

While on routine patrol about 10 p.m., Officers Johnny Smith and Ronnie Eisenhower of the Waldron City Police spotted beer cans beside the vehicle. They conducted a search of the vehicle with a flashlight and discovered a six pack of Coors Light beer lying on a "flat" in the hatch compartment of the vehicle behind the appellant. Randy Crowell, one of the passengers, admitted to purchasing the beer and claimed ownership.

Although neither officer was certain of the appellant's exact position in the car, it was alleged by Officer Eisenhower that the appellant was a passenger in the back seat.

A portable breathalyzer test was administered, but the results were not provided. However, Officer Smith testified that the test indicated the passengers had consumed alcohol, although no evidence was presented as to the time of the alleged consumption, or whether it was recent. The officers testified that the appellant did not have in her hand or lap any alcoholic beverage and further testified that the reason the citation was given was because consumption had been indicated.

Ark.Code Ann. § 3-3-203 (1987) states in pertinent part the following:

(a)(1) It shall be unlawful for any person under the age of twenty-one (21) years to purchase or have in possession any intoxicating liquor, wine or beer.

(2) For the purposes of this section, intoxicating liquor, wine, or beer in the body of a minor shall not be deemed to be in his possession.

Appellant cites Reynolds v. State, 92 Fla. 1038, 111 So. 285 (1926), as holding that "possession" of intoxicating liquors within the meaning of statutes making possession unlawful is usually defined as "having personal charge of or exercising the right of ownership, management, or control over," and it has also been held that there must be a conscious and substantial possession by the accused, as distinguished from a merely involuntary or superficial possession.

Appellant contends that while the testimony and evidence adduced might prove that the appellant had consumed alcohol, neither actual nor constructive possession of alcohol was proved. Neither of the officers at the scene of the incident testified to having seen the appellant with any beverage, nor did they testify that she even had knowledge that the beer was in the hatch of the vehicle. Further, the statute is clear that alcohol in the body of a minor shall not be deemed to be in his or her possession.

The state contends that the appellant had "constructive possession" of the alcohol because it was in the vehicle in which she was an occupant. In Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982), we defined the differences between actual and constructive possession as it relates to controlled substances:

The problem with joint occupancy arises because of the rule that when joint occupancy is the only evidence the State has, there must be some additional link between the accused and the contraband.... If evidence is presented that indicates joint occupancy and occupancy is the only evidence the State offers to prove possession, it must either provide the necessary link or prove the accused was in sole possession.

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

The appellant was clearly not in actual possession of the beer in this case. The question then becomes whether there was sufficient evidence to show she was in constructive possession. In determining whether there is sufficient evidence to support a verdict, the court views the evidence in the light most favorable to the state and will affirm the conviction if there is substantial evidence to support the conviction. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988).

The following was presented by the state to prove constructive possession of the beer by the appellant: (1) beer cans were found laying between the vehicle in question and another parked vehicle; (2) a six-pack of Coors Light beer was found lying inside the vehicle in the hatch area behind the appellant, and according to Officer Eisenhower, all the appellant would have had to have done was "just turn around and reached and grabbed it [the beer];" and (3) the appellant had a smell of intoxicating alcohol about her person.

The...