Walker v. State
| Decision Date | 10 April 2002 |
| Docket Number | No. CA CR 01-941.,CA CR 01-941. |
| Citation | 72 S.W.3d 517,77 Ark. App. 122 |
| Parties | Larry WALKER v. STATE of Arkansas. |
| Court | Arkansas Court of Appeals |
Steven M. Harper, Conway, for appellant.
Mark Pryor, Att'y Gen., by: David J. Davies, Ass't Att'y Gen., Little Rock, for appellee.
Appellant was convicted in a bench trial of possession of a controlled substance and possession of drug paraphernalia. He was sentenced to sixty months' imprisonment, with thirty-six months suspended. Appellant's sole contention on appeal is that the evidence of his constructive possession of the contraband was insufficient to sustain the convictions, and accordingly the trial court should have dismissed the charges against him. We agree.
On June 19, 2000, a vehicle driven by appellant entered into an area under surveillance by Faulkner County law enforcement. The area included a Quonset hut filled with a substantial amount of stolen property. The officers were instructed to stop any vehicle approaching or exiting the area and to identify any persons "that might have cause to be on the property." Appellant arrived about 1:30 a.m. driving a vehicle belonging to his passenger, Darlene Ables. Deputy Brocker testified that he stopped the vehicle and checked appellant's license. He noted that appellant had various charges (not warrants) including a weapons charge, and asked him and the passenger to exit the vehicle. A search of Ables's person revealed a clear plastic bag which later tested positive for methamphetamine residue. However, the search of appellant produced no evidence of contraband.
Subsequent to the searches of both individuals, a canine search of the vehicle was performed and the dog alerted under the driver's seat. A search under the seat revealed a pair of work gloves and inside one of the gloves was a ball of tinfoil containing methamphetamine. After the arrests, while being transported in the police car, Ables accused the officer of planting the drugs and the appellant joined her accusation. The appellant was tried before the court and was convicted of possession of a controlled substance and possession of drug paraphernalia (for the tinfoil).
Walker challenges the trial court's denial of his motion to dismiss. A motion to dismiss, identical to a motion for a directed verdict in a jury trial, is a challenge to the sufficiency of the evidence. Dye v. State, 70 Ark.App. 329, 17 S.W.3d 505 (2000). On appeal of a denial of a motion for dismissal, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). Circumstantial evidence is substantial if it is of sufficient force to compel a conclusion beyond mere suspicion or conjecture. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). Only the evidence supporting the guilty verdict need be considered, and that evidence is viewed in the light most favorable to the State. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).
The cases are legion concerning constructive possession and joint possession of controlled substances. It is well settled that it is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000) (citing Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994)). Constructive possession requires the State to prove beyond a reasonable doubt that 1) the defendant exercised care, control, and management over the contraband, and 2) the accused knew the matter possessed was contraband. Boston v. State, 69 Ark.App. 155, 12 S.W.3d 245 (2000). Although constructive possession can be implied when the drugs are in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Dodson, supra. There must be some other factors linking the accused to the drugs:
Other factors to be considered in cases involving automobiles occupied by more than one person 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 or control over it; and, 5) whether the accused acted suspiciously before or during the arrest.
Mings, supra at 207, 884 S.W.2d at 600.
Although factors three and four were present in this case, neither of these factors established that appellant had knowledge of the presence of the contraband without resorting to speculation or conjecture. Each of the remaining Mings factors (plain view, whether the contraband is found in the accused's personal effects, and suspicious acts of accused) indicate that the accused had direct knowledge of the presence of the contraband.
While the Mings factors offer guidance for our court in analyzing constructive possession cases, the mere presence of some of these enumerated factors does not relieve our obligation to determine whether a nexus between the accused and the contraband has been established. The link between the accused and the drugs must be sufficient to raise a reasonable inference of knowledge of the contraband. In Boston, supra, we reversed a conviction where the contraband was found in a suitcase in the trunk of appellant's car where it could not be shown that he had knowledge of the contents of the suitcase. Similarly, in Miller v. State, 68 Ark.App. 332, 6 S.W.3d 812 (1999), we affirmed a conviction where (although none of the five Mings factors were apparent) the strong odor of burning marijuana was sufficient to establish that the appellant had knowledge of the drug, and concluded that it is the knowledge of the existence of the contraband that provides substantial evidence of constructive possession. Id.
Knowledge of the presence of the contraband is a well-established element of constructive possession which has been developed better in premises cases than automobile cases. In Franklin v. State, 60 Ark.App. 198, 962 S.W.2d 370 (1998), we reversed a conviction based on constructive possession where joint occupancy of a house was at issue. After analyzing the evidence the State offered, which allegedly linked appellant to the drugs, we found it to "fall short of demonstrating the degree of connection to the contraband or knowledge of its presence." Id. at 203, 962 S.W.2d at 373 (emphasis added).
In the case at bar, appellant was in Darlene Ables's car, and methamphetamine was found on her person and not on appellant. Additionally, the officer testified that appellant was cooperative and did not act suspiciously. The State offered only two links between appellant and the contraband: 1) that the glove was found on appellant's side of the vehicle; and 2) that appellant was the driver of the automobile. Neither of these raise a reasonable inference that appellant had knowledge of the presence of the contraband. Therefore, there was no substantial evidence to support a finding of constructive possession, and we reverse appellant's convictions and dismiss the charges against him.
Reversed and dismissed.
I would affirm appellant's convictions because I believe that, viewing the evidence in the light most favorable to the State, as we must, there is substantial evidence to support the convictions.
In Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000), our supreme court, citing Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994) stated:
It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Possession of drugs can be proved by constructive possession. Although constructive possession can be implied when the drugs are in the joint control of the accused and another, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. There must be some other factor linking the accused to the drugs:
Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the...
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