Robinson v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: ROBERT J. GLADWIN, Judge
• Citation: Robinson v. State, 537 S.W.3d 765 (Ark. App. 2017)
• Decision Date: 13 December 2017
• Docket Number: No. CR–17–545,CR–17–545
• Parties: Gary ROBINSON, Jr., Appellant v. STATE of Arkansas, Appellee

537 S.W.3d 765

Gary ROBINSON, Jr., Appellant

v.STATE of Arkansas, Appellee

No. CR–17–545

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: December 13, 2017

James Law Firm, by: Michael Kiel Kaiser and William O. "Bill" James, Jr., Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Judge

Appellant Gary Robinson, Jr., appeals his conviction by a Faulkner County jury on charges of simultaneous possession of drugs and a firearm, a Class Y felony, in violation of Arkansas Code Annotated section 5–74–106 (Supp. 2013), and failure to appear, a Class C felony, in violation of Arkansas Code Annotated section 5–54–120 (Supp. 2013).¹ He challenges the sufficiency of the evidence supporting the convictions for simultaneous possession of drugs and firearms and failure to appear. We affirm.

I. Facts

On April 16, 2015, appellant was pulled over by Officer Richard Shumate of the Conway Police Department for traffic violations—failure to stop at an intersection and the trunk standing open so that the license plate could not be read—at which time appellant was found to have a suspended driver's license. Officer Shumate asked appellant to exit the vehicle, placed him into custody, handcuffed him, and performed a search of appellant's person incident to arrest.

During the search, Officer Shumate found a plastic bag that contained eleven smaller bags of methamphetamine in a pouch sewn into appellant's underwear. During the subsequent search of the car appellant was driving, Officer Shumate discovered a semiautomatic pistol between the center console and the driver's seat. Officer Shumate indicated that if a person was in the driver's seat of the vehicle looking down, the person would be able to see the firearm. The owner of the car was later found to be a woman named Felicia Jackson.

The State filed charges of simultaneous possession of drugs and a firearm, a Class Y felony; and possession of a controlled substance with purpose to deliver methamphetamine, a Class B felony, against appellant on April 17, 2015. Appellant's case was set for a jury trial on July 28, 2016, but it was canceled when appellant did not arrive by the specified time of 9:00 a.m. On November 8, 2016, the State amended the felony information to add one count of failure to appear, a Class C felony.

Appellant's jury trial was held on December 1, 2016. At the close of the State's case, and again at the close of all the evidence, appellant's counsel moved for a directed verdict on the simultaneous-possession and failure-to-appear charges, which the trial court denied. The jury found appellant guilty of all three charges and sentenced him to eighty years for simultaneous possession; forty years for possession with purpose to deliver; and seven years for failure to appear, to run concurrently. The trial court entered the sentencing order on December 2, 2016, and appellant filed a timely notice of appeal on December 28, 2016.

II. Standard of Review

On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Brooks v. State , 2016 Ark. 305, 498 S.W.3d 292. Appellate courts will affirm the conviction if there is substantial evidence to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. See Sylvester v. State , 2016 Ark. 136, 489 S.W.3d 146. The evidence may be either direct or circumstantial; however, circumstantial evidence must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. King v. State , 100 Ark. App. 208, 266 S.W.3d 205 (2007).

In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Beaver v. State , 2014 Ark. App. 188. It is the jury's role as fact-finder to resolve questions of conflicting testimony and inconsistent evidence, and the jury is free to choose to believe the State's account of the facts rather than the defendant's. Hill v. State , 2015 Ark. App. 700, 478 S.W.3d 225. When doing so, the jury is not required to abandon common sense, and it is entitled to draw reasonable inferences from the evidence. Jefferson v. State , 2017 Ark. App. 492, 532 S.W.3d 75. Whether the evidence excludes every other hypothesis is a matter for the finder of fact to determine. Cosey v. State , 2014 Ark. App. 441, 439 S.W.3d 731.

III. Discussion

A. Simultaneous–Possession Conviction

The State charged appellant with simultaneous possession of a firearm during the commission of a controlled-substance offense in violation of Arkansas Code Annotated section 5–74–106(a)(1) (Repl. 2016), which provides that "[a] person shall not unlawfully commit a felony violation of §§ 5–64–419–5–64–442 while in possession of [a] firearm."

In the motion for directed verdict, trial counsel argued that there was insufficient evidence, noting (1) the vehicle in question did not belong to appellant; (2) although there was a firearm in the vehicle at the time of the traffic stop, Officer Shumate testified that it was not visible unless the driver looked down at it; and (3) there was no indication that appellant was aware of the firearm's presence in the car.

Arkansas Code Annotated section 5–1–102(15) (Repl. 2013) defines "possession" as "to exercise actual dominion, control, or management over a tangible object." The State does not have to prove that the defendant physically held the contraband. Gill v. State , 2017 Ark. App. 22, 511 S.W.3d 865. Constructive possession, which is the control or right to control the contraband, is sufficient. Id. Constructive possession can be inferred when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id. See Lambert v. State , 2017 Ark. 31, 509 S.W.3d 637 ; see also U.S. v. Roberts , 953 F.2d 351 (8th Cir. 1992) (noting that "constructive possession" has been defined as knowledge of presence plus control). 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. White v. State , 2014 Ark. App. 587, 446 S.W.3d 193.

Appellant argues that the State did not prove beyond a reasonable doubt that he had constructive possession of the firearm located in the car. First, appellant notes that he has consistently denied any knowledge of a firearm being present in Ms. Jackson's vehicle. There was no direct evidence that established appellant's possession, such as fingerprints on the firearm or any testimony that someone saw him with the firearm or that appellant regularly drove Ms. Jackson's car, see White , 2014 Ark. App. 587, at 3–4, 446 S.W.3d at 196. And there was no testimony from Officer Shumate to indicate that appellant attempted to conceal the firearm or acted suspiciously before to the traffic stop. See Lambert , supra.

Second, appellant...