Kilpatrick v. State, CR

• Court: Arkansas Supreme Court
• Writing for the Court: JESSON
• Citation: Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (Ark. 1995)
• Decision Date: 18 December 1995
• Docket Number: No. CR,CR
• Parties: Albert Lee KILPATRICK, Appellant, v. STATE of Arkansas, Appellee. 95-416.

Page 917

912 S.W.2d 917

322 Ark. 728

Albert Lee KILPATRICK, Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-416.

Supreme Court of Arkansas.

Dec. 18, 1995.

John Joplin, Fort Smith, for Appellant.

Ken G. Holt, Asst. Attorney General, Little Rock, for Appellee.

JESSON, Chief Justice.

The appellant was convicted of possession of cocaine with intent to deliver, Ark.Code Ann. § 5-64-401 (Repl.1993), and of being a felon in possession of a firearm, Ark.Code Ann. § 5-73-103(a)(1) (Repl.1993). As an habitual offender, he received sentences of forty-four years on the drug charge and twelve years on the firearms charge, the sentences to run concurrently. His arguments for reversal concern the sufficiency of the evidence to support his convictions, the denial of his motion to suppress, and four evidentiary rulings by the trial court. We find no error and affirm.

The appellant was the owner of an automobile detail shop in Vian, Oklahoma, which is about ten miles west of Sallisaw, Oklahoma. On December 21, 1993, he thoroughly cleaned and detailed a 1989 black Ford Ranger pickup belonging to a Mr. Sammy Henry. According to the appellant, he planned to drive the vehicle to Fort Smith, Arkansas to visit relatives and pick up his fiancee from work. She was not scheduled to leave work until late that evening ¹, but the appellant left for Fort Smith sometime during the day. Along the way, he stopped in Sallisaw where he picked up his cousin, Eric Johnson.

Sometime after 9:30 that same evening, Detective Wayne Barnett of the Fort Smith Police Department was contacted by a confidential informant. According to the trial testimony, the informant told the detective that two black males from the Sallisaw, Oklahoma area, driving a black 1989 Ford Ranger pickup with Oklahoma tags, were selling crack cocaine. The informant stated further that the vehicle was parked in front of a residence near the intersection of 12th and G Streets in Fort Smith.

Shortly thereafter, Barnett contacted Detective Binyon with the Department's narcotics unit. Binyon testified that the call came at approximately 9:55 p.m. Barnett relayed the information he had received from the informant. Within five minutes, Binyon and his partner, Detective Bruce, travelled in an undercover vehicle to an alley near the intersection of 12th and G Streets. From that vantage point, they conducted visual surveillance and observed a small, black Ford pickup with Oklahoma tags parked in front of a residence at 12th and G Streets. According to Binyon, he had, in the past, executed a search warrant at the residence and had made several arrests at the intersection, an area well known for drug trafficking.

The detectives watched as three or four people came up to the truck, stayed for a short period, then left. Detective Bruce testified that two black males were continuously around the pickup, while other individuals came and went. About twenty minutes into the surveillance, the two men who had been standing by the truck got into it and pulled away. Bruce and Binyon called a patrol unit, and the truck was stopped before it had travelled more than a block and a half. The appellant was driving the truck and Eric Johnson was the passenger.

When Bruce and Binyon arrived at the stopped vehicle, they asked the appellant and Johnson to exit the vehicle and told them of the reason for the stop. Bruce entered the truck on the driver's side and immediately observed a plastic bag lying on the hump between the split bench seats. The bag contained a substance which the State Crime Lab later concluded was 1.868 grams of cocaine. Binyon, entering from the passenger side, found a .38 caliber revolver under the passenger seat. He also found, in the same area as the plastic bag, a pill container which held ten small chunks of a rock-like substance. The State Crime Lab later determined that the substance was .095 grams of cocaine base. Both detectives testified that the plastic bag and the pill container were in plain view between the driver and passenger seats.

After the contraband was found, the appellant and Eric Johnson were placed under arrest. They were tried together on the same charges and both found guilty.

For his first point of error, the appellant argues that the evidence was insufficient to support his conviction on either charge. In particular, he argues that the state did not prove that he was in possession of either the controlled substance or the firearm. He also argues that the state did not prove any intent to deliver the controlled substance.

Evidence to support a conviction, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. On appeal, we view the evidence in a light most favorable to the appellee and look only to that evidence which supports the verdict. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). When possession of contraband is an element of an offense, the state need not prove literal, physical possession. Constructive possession can be implied when the contraband is in the joint control of the accused and another person. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). However, joint occupancy of the vehicle, standing alone, is not sufficient to establish possession. There must be some other factor linking the accused to the contraband. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994).

Among the "linking" factors this court has considered in cases involving vehicles occupied by more than one person are: 1) whether the contraband is in plain view; 2) whether the contraband is found with the accused's personal effects; 3) whether the contraband 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. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). In addition to the five factors set out in Plotts, we have also considered the improbability that anyone other than the occupants of the vehicle placed the contraband in the vehicle, and the improbable nature of the accused's explanation for his journey. Mings v. State, supra.

In this case, the cocaine was in plain view. It was lying in proximity to the appellant in an area easily accessible by him. The handgun, while not in plain view, was also in an area accessible to the appellant. Detective Binyon testified that the truck cab was so small that anyone in the vehicle had access to anything inside. Additionally, the appellant exercised dominion and control over the vehicle. Although he did not own it, he had driven it from Vian, Oklahoma for his own personal purposes and had been the only one to drive it that day. Actual ownership is not required. Littlepage v. State, supra. Further, the appellant testified that he had thoroughly cleaned the vehicle prior to using it and would have noticed any contraband in it. Therefore, the jury could have dismissed the possibility that the drugs or the gun were in the truck when the appellant borrowed it. The jury might also have inferred that one who possesses cocaine with intent to deliver might also possess a handgun. Detective Binyon testified that it was common to find handguns in close proximity to drugs. This court has recognized that firearms are considered a tool of the narcotics dealer's trade. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). Finally, the jury might have found the appellant's explanation that he came to Fort Smith long before his fiancee was scheduled to leave work improbable. Taken together, these factors amount to substantial evidence to support the jury's determination that the appellant was in possession of the cocaine and the firearm.

The appellant also claims there was insufficient evidence of intent to deliver the cocaine. In addition to the evidence already set out in this opinion which would support that inference by the jury, the amount of cocaine possessed--in excess of one gram--created a statutory presumption that it was possessed with the intent to deliver. See Ark.Code Ann. § 5-64-401(d) (Repl.1993). This is sufficient evidence of the element of intent. Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986). The appellant attempts to argue that the presumption is unconstitutional because it shifts the burden of proof away from the state. He did not raise this argument below, so it cannot be raised on appeal. Williams v. State, 320 Ark. 211, 895 S.W.2d 913 (1995). In any event, the presumption is rebuttable and has withstood similar constitutional challenges in this court. Hooper v. State, 257 Ark. 103, 514 S.W.2d 394 (1974); Stone v. State, 254 Ark. 1011, 498 S.W.2d 634 (1973).

For his next point, the appellant argues that the search of his vehicle was the result of an illegal stop and detention. Rule 3.1 of the Arkansas Rules of Criminal Procedure provides, in pertinent part, as follows:

A law enforcement officer ... may ... stop and detain any person who he reasonably suspects is committing, has committed or is about to commit (1) a felony ... if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.

In Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982), we said that the justification for an investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized and articulable reasons indicating the person or vehicle may be involved in criminal activity. We also look to the definition of ...