McKenzie v. State

• Decision Date: 12 May 2005
• Docket Number: No. CR 03-775.,CR 03-775.
• Citation: 208 S.W.3d 173
• Parties: Kevin McKENZIE, a/k/a Keith Barrett, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

208 S.W.3d 173

Kevin McKENZIE, a/k/a Keith Barrett, Appellant, v. STATE of Arkansas, Appellee.

No. CR 03-775.

Supreme Court of Arkansas.

May 12, 2005.

Leah Chavis, Jacksonville, for appellant.

Mike Beebe, Att'y Gen., by: Misty Wilson Borkowski, Ass't Att'y Gen., Little Rock, for appellee.

TOM GLAZE, Justice.

Appellant Kevin McKenzie was convicted of possession of marijuana and cocaine with intent to deliver and was sentenced to a total of sixty years' imprisonment. The court of appeals certified McKenzie's appeal to this court because the appeal presents an issue needing clarification or development of the law regarding the constructive possession of contraband. See Ark. Sup.Ct. R. 1-2(b)(5).

In his first point on appeal, McKenzie argues that the trial court erred in denying his directed-verdict motion because the evidence was insufficient to demonstrate beyond a reasonable doubt that McKenzie constructively possessed the contraband. In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003); Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. We view the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id.

We have explained that, in constructive possession cases, 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. George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004). Constructive possession may be established by circumstantial evidence. Polk, supra. When seeking to prove constructive possession, the State must establish that the defendant exercised care, control, and management over the contraband. Id. 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; Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991).

Further, while this court does not appear to have addressed this particular question in the context of a driver of an eighteen-wheel tractor-trailer, we have opined that joint occupancy of an ordinary vehicle (such as a car) 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.; see also Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). Constructive possession may be established by circumstantial evidence, but when such evidence alone is relied on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990).

The evidence presented during the State's case-in-chief at McKenzie's trial was as follows: On September 23, 2001, Officer Greg Toland of the Arkansas Highway Police was working at a weigh station in Crawford County. Toland pulled McKenzie over for a random inspection of his truck; when McKenzie showed Toland his log book, Toland noticed that McKenzie was two hours over his permissible drive hours. Toland also saw that McKenzie's bill of lading indicated that only two pallets had been picked up in California, which Toland thought unusual. Toland asked for consent to search the vehicle, which McKenzie granted.

McKenzie provided Toland with the key to open the trailer. When Toland and McKenzie opened the trailer, Toland noticed it was warmer than it should be, given that the bills of lading indicated that McKenzie was carrying lemons and grapefruit, which should have been stored at a temperature between thirty-seven and forty-five degrees, according to the loading sheet. After noticing the temperature, Toland saw that somebody had been on top of the load of produce, "like they had been crawling from the back to the front," and the boxes were "mashed down." Toland shone his flashlight underneath the pallets; at the very front, far end of the truck, he saw some green and black material that turned out to be duffel bags. Toland said that there was a "space on the left hand side, where you could see all the way down," and at the front, there was a stack of empty pallets.

Toland called for back-up, because McKenzie had a passenger in the cab of his truck. When Officer Jeff Smith of the Crawford County Sheriff's Department arrived, the two proceeded to the front of the trailer and started taking pallets off the top of the duffel bags; then they opened the bags and found 334.4 pounds of marijuana.¹

Jack Stepp, assistant safety supervisor for the Arkansas Highway Police, also testified for the State. Stepp testified about drivers' responsibilities under Department of Transportation regulations, stating that "the driver is ultimately responsible for [the] load" in his trailer, and that "[w]ith respect to produce, if there is a seal and a lock on the load, the driver is responsible for putting it there," although it was not common for a shipper of produce to lock the load. It was so unusual, Stepp testified, that he could not recall ever seeing a lock on a load of produce in his fifteen years of experience. Stepp further stated that it was uncommon to have the temperature at sixty-one degrees for a load of produce, and that it was "not a common trucking practice to have a load crawled on top of because it would damage the produce." Of the five or six trucks Stepp had seen where someone had crawled on top of the produce, he said, "all of them were hauling illegal controlled substances."

We believe that this evidence, viewed in the light most favorable to the State, supports the jury's finding of guilt. As mentioned above, there have been no other Arkansas cases involving constructive possession of contraband in a tractor-trailer or eighteen-wheeler, but cases from federal courts of appeal are instructive. For example, in United States v. Sanchez, 252 F.3d 968 (8th Cir.2001), the Eighth Circuit Court of Appeals affirmed a conviction for possession of marijuana with intent to deliver. In that case, the facts showed that appellant Sanchez was driving a tractor-trailer; at a weigh station, Missouri State Highway Police Officer John Adams stopped the truck and decided to perform a safety inspection. Adams became suspicious because the trailer lacked proper registration; the bill of lading indicated that Sanchez was hauling onions from Springer, Oklahoma (despite the fact that Adams had never seen produce that originated in Springer, Oklahoma); the weight on the bill of lading did not match the weight on the scales; the onions were being refrigerated, even though it was November; and the trailer was only half-full, despite Sanchez's assertions that he was traveling all the way to the east coast. In addition, Adams later testified that Sanchez appeared nervous and had a difficult time sitting still while the two spoke. Sanchez, 252 F.3d at 970.

A second officer arrived and asked permission to search the trailer; Sanchez gave the officer a key. When the officer looked in the trailer, he became suspicious that a false wall had been built into the trailer, because there was new metal trim that was out of keeping with the rest of the truck. Information that Sanchez gave to the officers about his trip eventually turned out to be false, such as the fact that the company for which Sanchez claimed to work indicated that they had never met Sanchez. In addition, a search of the cab turned up a Home Depot receipt that reflected the recent purchase of items consistent with those necessary to build a false compartment. Id. at 971.

In affirming, the Eighth Circuit held that Sanchez had sole control and dominion over the vehicle in which the contraband was discovered; Sanchez had given false and evasive answers in response to police questioning; and his testimony at trial was inconsistent with the responses he had given to police. Id. at 972.

In another Eighth Circuit case, that court affirmed a conviction for possession of cocaine with intent to distribute. United States v. Johnson, 285 F.3d 744 (8th Cir.2002). There, appellant Johnson was stopped at a weigh station; the officer present discovered that Johnson's log book was missing information for three days of his trip. The log book did reflect, however, that Johnson had stopped in El Paso, Texas, which was several hundred miles out of the way for his stated itinerary of Bakersfield, California, to "someplace in Connecticut or Maryland." The officer also noticed that the trailer was locked with a lock "of a type impervious to bolt cutters, and the truck's vent door, a small door permitting inspection of the load, was locked." Johnson, 285 F.3d at 746. When the officer finally got up into the back of the trailer and began moving boxes, Johnson jumped up into the truck to move the boxes around. Id. at 747. The officer eventually discovered forty...