Littlepage v. State
| Decision Date | 11 October 1993 |
| Docket Number | No. CR,CR |
| Citation | 314 Ark. 361,863 S.W.2d 276 |
| Parties | Dewayne R. LITTLEPAGE, Appellant, v. STATE of Arkansas, Appellee. 93-471. |
| Court | Arkansas Supreme Court |
Q. Byrum Hurst, Jr., Hot Springs, for appellant.
Teena L. White, Asst. Atty. Gen., Little Rock, for Appellee.
The appellant, Dewayne R. Littlepage, was convicted of possession of methamphetamine with intent to deliver and sentenced to a term of forty years and a fine of $25,000; possession of drug paraphernalia and sentenced to ten years and a $10,000 fine; and being a felon in possession of a firearm and sentenced to six years imprisonment and $10,000. Littlepage was also found guilty of possession of marijuana and sentenced to one year imprisonment and fined $1,000. All the sentences are to run consecutively. He raises four issues on appeal, none of which has any merit.
Dewayne R. Littlepage, along with a passenger, Fred McCaslin, was driving a rented, white Cadillac car bearing Texas tags in Malvern, Arkansas. While on patrol, Officer Ron Ball with the Arkansas State Police followed the automobile through a traffic light as the car made a right turn out of the center lane without a turn signal. Officer Ball followed and called for a registration check to determine the ownership of the car and learned that it was a rental car out of Dallas.
As Officer Ball followed the car further, he observed it hit the fog line, the white line on the right-hand side of the road, at least twice from the time it turned onto Main Street. He stopped the car and asked the driver, Littlepage, for his driver's license, which had expired about two years earlier. Littlepage produced the rental agreement, which revealed that neither Littlepage nor his passenger was the legal driver.
Officer Ball placed Littlepage under arrest for the expired driver's license, patted him down, and placed him in the back seat of his police car. Officer Ball then walked to the right side of the Cadillac and shined his flashlight inside the car while watching the passenger in the front seat. The officer observed a nylon holster with what appeared to be the butt of a pistol sticking out from under the driver's seat. He removed the weapon, which was fully loaded, and got the passenger out of the car. Informed by Littlepage that he was on probation for a felony, Officer Ball gave him his Miranda warnings and arrested him for being a felon in possession of a firearm. The officer then looked under the front seat for any additional weapons and found drugs and drug paraphernalia.
Although no drugs were found on Littlepage's person or under his seat in the car, his fingerprints were found on an Arkansas Bank & Trust envelope containing three plastic bags with a powder residue. Tests by the Crime Lab revealed that the items seized from the car contained cocaine, methamphetamine and marijuana.
Prior to trial, Littlepage filed a motion to suppress the articles found in the car arguing that the search and stop had been pretextual. In support of this motion, Littlepage revealed that Officer Ball had received a phone call earlier in the week from a confidential informant, relating that a white Cadillac with Texas tags might be used in the course of some kind of drug activity. Littlepage also emphasized that, in Officer Ball's reports on the arrest, he stated that one reason he stopped Littlepage was because he hit the fog line at least twice and had crossed the solid white line. The court denied the motion to suppress.
For his first argument on appeal, Littlepage contends that the evidence was insufficient to prove that he was in constructive possession of the drugs, drug paraphernalia, and two guns discovered in the vehicle. We disagree.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. 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. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).
Evidence of Littlepage's possession of drugs, drug paraphernalia, and weapons is more than sufficient. Officer Ball testified at trial that during the search incident to Littlepage's arrest for the expired driver's license, he noticed in plain view a black nylon-style holster, that appeared to contain a pistol, sticking out from under the driver's seat. After opening the driver's door, he examined the pistol and found it contained a fully loaded clip. In continuing his search of the car, ostensibly for other weapons, Officer Ball discovered marijuana and a Liquid Wrench can. Noticing that the bottom of the Liquid Wrench can unscrewed, he opened it and found four ziplock bags containing white powder, two more ziplock bags with white powder, one ziplock bag with a hand rolled cigarette, three zip lock bags containing vegetable material, one vial containing a liquid, four "rocks," and four syringes.
Thereafter, an inventory search of the car was conducted, and the police found a loaded .45-caliber weapon and a fake battery with a storage compartment in the trunk. Another bag containing white powder was found next to the gas cap. Police also found a pharmacy bag containing some syringes in the console next to the driver's seat; as well, a bank envelope holding three baggies covered in white powder residue was also found. Littlepage's fingerprints matched those found on the envelope.
Jerry Buck, a chemist from the State Crime Lab, testified that the white powdery substance found in the many containers in the vehicle was cocaine. Also found were several pill bottles which contained methamphetamine, codeine, and valium. Marijuana was identified, as well.
On appeal, Littlepage submits that the evidence at trial was insufficient to connect him with ownership of the drugs, drug paraphernalia, and guns. We disagree.
In order to prove a defendant is in possession of a controlled substance, constructive possession is sufficient. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Neither are exclusive nor actual, physical possession of a controlled substance necessary to sustain a charge. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). Constructive possession can be implied when it is in the joint control of the accused and another. (Osborne, supra. However, joint occupancy alone is not sufficient to establish possession or joint possession. There must be some additional factor linking the accused to the contraband. Id. In Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988), we enumerated factors that sufficiently link an accused to contraband found in a car jointly occupied by more than one person, including the contraband's being (1) in plain view; (2) on the defendant's person or with his personal effects; (3) found on the same side of the car seat as the defendant or in immediate proximity to him; or that the accused (4) owned the vehicle in question or exercised dominion and control over it; and (5) acted suspiciously before or during arrest. Plotts, supra; See also Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991).
Applying these elements to the facts at hand, it is clear that Littlepage was in constructive possession of the drugs, drug paraphernalia, and firearms. First of all, the illicit articles were found in the immediate proximity of its driver, Littlepage, at the time of the arrest. Secondly, Littlepage exercised dominion and control of the car as its driver, his fingerprints were found on an envelope containing cocaine residue, and the loaded pistol was found underneath his seat. Drug paraphernalia, specifically syringes, was found in the console next to him. Taken together, these facts specifically link him to the contraband and prove that he was in constructive possession of the drugs, paraphernalia and firearms.
In sum, we have no hesitancy in holding that the evidence was sufficient to convict on all charges.
In a motion to suppress the results of the search of the car, Littlepage contended that the officer stopped him because of the confidential informant's tip and not because he had violated a traffic law; therefore, he claims, the stop was pretextual, rendering the search and its results invalid. Since Littlepage has failed to show that he had an expectation of privacy in the rental car, we do not reach the issue of the constitutionality of the search.
After hearing the testimony of Officer Ball, the trial court denied the motion to suppress, explaining:
The motion is denied. There was probable cause for the stop and the arrest. The information received by the officer from the confidential informant had nothing to do with the stop and nothing to do with the arrest. It was based on an illegal turn. This was standard procedure for the State Police. This was a car from out of state, one with which the officer was not familiar so he called in for an identification on that, which he got. The driver's license of the defendant was expired and there was a gun in plain sight. The officer was aware at this time that Littlepage was on probation. That constitutes a violation. A limited search was then done incident to arrest. All of those things were valid and allowable under the Fourth Amendment. An inventory search was then done at that time after the officer knew that the vehicle was going to be taken into custody. All of the regular procedures were followed, as practiced...
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