Plotts v. State, CR

• Decision Date: 14 November 1988
• Docket Number: No. CR,CR
• Citation: 297 Ark. 66,759 S.W.2d 793
• Parties: Harvey D. PLOTTS, Appellant, v. STATE of Arkansas, Appellee. 88-81.
• Court: Arkansas Supreme Court

Page 793

759 S.W.2d 793

297 Ark. 66

Harvey D. PLOTTS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 88-81.

Supreme Court of Arkansas.

Nov. 14, 1988.

F. Thomas Curry, Arkadelphia, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

HOLT, Chief Justice.

The appellant, Harvey Plotts, was convicted of possession of marijuana with intent to deliver and sentenced to ten years imprisonment and a fine of $25,000.00. For reversal he argues that the trial court erred in (1) refusing to grant a directed verdict in that there is insufficient evidence of guilt and (2) refusing to give the jury an instruction on the lesser included offense of simple possession thereby creating an unconstitutional mandatory presumption. We find no error and affirm the judgment of the trial court.

At approximately 11:20 p.m. on September 24, 1987, Officer David Hathcoat, while patrolling on I-30 near Arkadelphia, spotted an eastbound Datsun "280ZX" weaving from lane to lane. After following the car for a short distance, the officer pulled the car over. After determining that Vega, the driver, had no driver's license, the officer informed him that he was under arrest for reckless driving and driving without a license. As the officer was putting the handcuffs on Vega, Vega dropped an aluminum foil package with syringes sticking out of it onto the ground. The officer then called for assistance.

Immediately thereafter, the officer walked over to the passenger side of the car to question appellant Plotts. As he approached Plotts, the officer (with the aid of a flashlight) spotted a clothes bag in the backseat which appeared to be full and thick but had no hangers sticking out of the top. He also noticed that there was a plastic bag containing green vegetable material protruding out of the clothes bag. After determining that Plotts owned the car, the officer asked him if he could search it. According to the officer, Plotts replied, "You can search the vehicle, any part of the vehicle you want to. If there are any drugs in there, I want them out."

After the deputy arrived, Officer Hathcoat took the clothes bag out of the back seat, placed it on the hood of the car, and unzipped the bag. Therein he found seven bags containing a total of 5 lbs., 12.7 ounces of marijuana. The officer immediately read Plotts his rights and arrested him.

Testimony and physical evidence supporting this scenario were the State's case. At the close of the State's presentation, Plotts moved for a directed verdict on the grounds that the State had not proved beyond a reasonable doubt that he possessed marijuana with intent to deliver. The court denied the motion, and the defense rested. The jury then found Plotts guilty.

I. SUFFICIENCY OF THE EVIDENCE.

Plotts alleges that there is insufficient evidence to support the jury verdict. We hold to the contrary.

In determining whether there is sufficient evidence to support a jury verdict, we view the evidence in a light most favorable to the State and affirm if there is substantial evidence to support the conviction. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). Substantial evidence is evidence which is of sufficient force to compel a conclusion one way or another. Id. It must be more than mere speculation or conjecture. Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986).

The issue we must decide is whether the State presented sufficient evidence to prove that Plotts possessed marijuana with intent to deliver. In order to convict a defendant on possession of a controlled substance, the State need not prove that the accused had actual possession of the controlled substance. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession, which is the control or right to ontrol the contraband, is sufficient. Id. Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id.

Where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985). See Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). In such cases, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband and (2) that the accused knew the matter possessed was contraband. Williams, supra.

In Williams, supra, the police stopped the appellant, who was driving his ex-wife's car, and another individual, who was seated in the right front seat, for speeding. In searching the car, which was emitting a cloud of blue marijuana smoke, the police found a brown paper sack on the floorboard in front of the passenger (according to one officer, in the center of the floorboard) containing 3.6 ounces of marijuana, traces of marijuana "strung all over" the floorboard, and several "roaches" in the ashtray, one still simmering. In addition, the passenger had a significant amount of marijuana scattered over his clothing. No traces of marijuana were found on the appellant.

In holding that there was insufficient evidence to support the appellant's conviction for possession of marijuana, we found that the State did not meet its burden of proving that the appellant had both (1) knowledge of the presence of marijuana and (2) control over it.

We have had few cases, except Williams, in which to develop workable guidelines for reviewing a possession conviction where the police find contraband in a vehicle occupied by more than one person, and there is no direct evidence that the contraband belongs to a particular occupant. Accordingly, a review of the analytical framework utilized by other jurisdictions would be useful.

Other courts have held that the prosecution can sufficiently link an accused to contraband found in an automobile jointly occupied by more than one person by showing additional facts and circumstances indicating the accused's knowledge and control of the contraband, such as the contraband's being (1) in plain view [Albert v. State, 659 S.W.2d 41 (Tex.Ct.App.1983); State v. Godsey, 202 Mont. 100, 656 P.2d 811 (1982); Zicca v. State, 232 So.2d 414 (Fla.Dist.Ct.App.1970) ]; (2) on the defendant's person or with his personal effects [Vaughn v. State, 473 So.2d 661 (Ala.Crim.App.1985) ]; or (3) found on the same side of the car seat as the defendant was sitting or in immediate proximity to him [Taylor v. State, 682 S.W.2d 391 (Tex.Ct.App.1984); State v. Woodruff, 205 Neb. 638, 288 N.W.2d 754 (1980); Machin v. Wainwright, 758 F.2d 1431 (11th Cir.1985) ]. Other facts include the accused (4) being the owner of the automobile in question [Rudd v. State, 649 P.2d 791 (Okl.Crim.App.1982); Albert, supra; Taylor, supra. See also Zicca, supra ] or exercising dominion and control over it [Woodruff, supra ]; and (5) acting suspiciously before or during arrest [Machin, supra; Taylor, supra ].

In Taylor, supra, the police discovered cocaine in a clear cellophane package on the floorboard of the driver's side of a truck in which thedriver-appellant and a passenger were seated. The court held that the officer's testimony that the appellant was the owner of the truck, that cocaine was located on the appellant's side of the truck, and that the appellant's movements just before his arrest indicated he was removing something from his pocket was sufficient to show possession.

In Zicca, supra, the police stopped a vehicle in which the appellant-driver and three other persons were present. The evidence introduced at trial established that the appellant was the owner of the car and that after stopping the appellant, the police spotted marijuana in a cellophane bag on a homemade shelf behind the passenger seat of the car in plain view. On appeal, the court held that this evidence was sufficient to show possession.

In Westbrook, supra, utilizing some of the same facts or circumstances enunciated by these other courts, we linked the accused to contraband found in the kitchen area of a home jointly occupied by the accused and another individual. These facts or circumstances were as follows: (1) the accused owned the house and had the superior right to its control; (2) while an officer was searching the bathroom, the accused came in, picked up a jewelry box, and started out; when the officer retrieved the box it was found to contain $3,700.00 wrapped in three brown paper bags; and (3) upon being taken into custody, the accused asked, "I would like to know which whore in town turned me in."

We turn now to the facts of the case at bar and apply the relevant factors. After stopping Plotts' car and determining that Vega, the driver, had no driver's license, the officer informed Vega that he was under arrest for reckless driving and driving without a license. As the officer was putting the handcuffs on Vega, Vega dropped an aluminum foil package with syringes sticking out of it onto the ground. The officer then called for assistance.

Immediately thereafter, the officer walked over to the passenger side of the car to question appellant Plotts. As he approached Plotts, the officer (with the aid of a flashlight) spotted a clothes bag in the backseat which appeared to be full and thick but had no hangers...