Osborne v. State, CR80-154

• Decision Date: 13 December 1982
• Docket Number: No. CR80-154,CR80-154
• Citation: 643 S.W.2d 251,278 Ark. 45
• Parties: Gerald OSBORNE, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 251

643 S.W.2d 251

278 Ark. 45

Gerald OSBORNE, Appellant, v. STATE of Arkansas, Appellee.

No. CR80-154.

Supreme Court of Arkansas.

Dec. 13, 1982.

William C. McArthur, Little Rock, for appellant.

Steve Clark, Atty. Gen. by William C. Mann, III, Asst. Atty. Gen., Little Rock, for appellee.

HAYS, Justice.

Appellant was charged with two counts of possession of a controlled substance with intent to deliver and one count of possession only. He was tried by a jury on July 17, 1979 and found guilty on all three counts. From that conviction he brings this appeal. We find no merit in the first two points raised, but there is merit in the third point and we reverse the case in part.

Appellant first argues that the search warrant used to seize the controlled substances was defective and the evidence should have been suppressed. He contends the search was in violation of A.R.Cr.P. 13.2 because it was conducted at 8:20 p.m. and with insufficient justification. Whether an encroachment of 20 minutes on the 8:00 p.m. time limit set by Rule 13.2 would amount to a substantial violation is questionable--see A.R.Cr.P. 16.2. But we need not reach that issue as the appellant failed to raise the argument before the trial court. Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977).

Appellant also claims the warrant was invalid because of the form of the affidavit. In the space provided for detailing the facts constituting probable cause, "see attachment" is typed in. On the attached sheets are the facts with the officer's signature at the bottom. At the suppression hearing the judge who signed the warrant testified he read the affidavit and had the officer sign it and the attachment in his presence. He said this procedure was often followed when the form failed to provide enough space for all the information. We approved this procedure in Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981), in a similar situation, and said that where the information would not fit in the space provided, the statement was incorporated in a practical and common sense manner.

The appellant's second argument relates to the instructions. He first contends that it was error not to give a requested instruction which read:

"Mere occupancy of a place where drugs are found does not establish possession of controlled substances without additional evidence of possession."

The trial court refused the instruction because it was an incomplete statement of the law. We agree. The court gave the correct AMCI instruction on possession, but the appellant also contends that it erred by not including any instructions on actual and constructive possession. Following the possession instructions, the AMCI 3304 gives the definition of actual and constructive possession and notes that these instructions should be given when constructive possession is at issue. In the brief discussion of the proffered instructions, the issue of constructive possession was never directly discussed, and the record shows that at one point the prosecution said the state was not alleging constructive possession, to which the appellant made no reply. In addition, we stated in Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980), a criminal case, that the parties are implicitly required to request an applicable AMI, or upon tendering a substitute instruction, to state into the record, the reasons they believe the AMI is inadequate or inaccurately states the law. This the appellant failed to do. For the reasons stated we find that the appellant has waived his objection to the instructions as they were given.

Appellant's last argument challenges the sufficiency of the evidence. The facts reveal that on January 11, 1978, the police went to appellant's residence with a search warrant. When they arrived his wife answered the door and told them appellant was across the street at his parents' home. One of the officers went to get him while the others began the search. When the appellant arrived, the police had already found controlled substances and the appellant was arrested. He was searched incident to his arrest and a small vial of cocaine was found in his pocket. At the residence the police confiscated phentermine pills from a dresser in one of the bedrooms and from a suitcase in the hall. Marijuana was found on a tray in the living room, where appellant's wife and three others were present.

We have said that possession need not be actual, physical possession, but may be constructive, when one controls a substance or has the right to control it. Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control, or to the joint control of the accused and another, but neither actual nor exclusive possession of the contraband is necessary to sustain a charge of possession. See Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). However, we have also held that joint occupancy of premises alone will not be sufficient to establish possession or joint possession unless there are additional factors from which the jury can infer possession. See Cary v. State, supra; Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978).

There are two separate problems involved in establishing "exclusive control" of the premises in order to impute possession. The first is whether the accused is a sole or joint occupant, and the second is, if the accused is the sole occupant, does he have actual exclusive control of the premises.

The problem of 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. On the other hand, if the state is proving a case through constructive possession of contraband by the occupant of a dwelling, it is not required in the first instance to disprove joint occupancy. If however, 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 (but see further discussion below). For example, in Lee v. State, 270 Ark. 892, 609 S.W.2d 3 (1980), the state was establishing its case through constructive possession. The defendant presented evidence to...