White v. State, CR–14–33.

• Court: Arkansas Court of Appeals
• Writing for the Court: RITA W. GRUBER, Judge.
• Citation: White v. State, 2014 Ark. App. 587, 446 S.W.3d 193 (Ark. App. 2014)
• Decision Date: 29 October 2014
• Docket Number: No. CR–14–33.,CR–14–33.
• Parties: Travis L. WHITE, Appellant v. STATE of Arkansas, Appellee.

2014 Ark. App. 587

446 S.W.3d 193

Travis L. WHITE, Appellant

v.STATE of Arkansas, Appellee.

No. CR–14–33.

Court of Appeals of Arkansas.

Oct. 29, 2014.

Montgomery, Adams & Wyatt, PLC, Little Rock, by James W. Wyatt, for appellant.

Dustin McDaniel, Att'y Gen., by Brad Newman, Ass't Att'y Gen., for appellee.

Opinion

RITA W. GRUBER, Judge.

Members of the Lonoke County Sheriff's Office went to Travis L. White's residence on June 20, 2012, acting on information that a stolen pistol and a lawn mower might be located there. White, who was inside the residence with three other people when officers arrived, consented to a search of his house and anything on the property. Officers arrested him for felon in possession of a firearm after finding a firearm, a box of ammunition, and his wallet inside his aunt's Ford F–150 truck. He and his cousin were taken to the sheriff's office, where White was Mirandized and gave a statement in which he acknowledged that he had driven the truck earlier in the day but denied that the gun belonged to him or that he knew it was in the truck.

Evidence at the bench trial in the circuit court included testimony by officers and White. At the trial's conclusion, White was convicted on the firearms charge. He subsequently filed a motion to reconsider, which was orally argued to the circuit court and was denied. The State requested “the full range of punishment” at the sentencing phase of trial, and White requested probation in order to keep his job and continue supporting his two children. The court agreed that probation was appropriate, stating, “This case has caused me pause, not only on the guilt phase but also on the sentencing phase.” The court then pronounced a sentence of seventy-two months' probation. White now appeals, challenging the sufficiency of the evidence to show that he constructively possessed the gun.¹ We affirm.

Arkansas Code Annotated section 5–73–103(a) (Supp.2013) provides that no convicted felon shall possess or own a firearm. A showing of constructive possession, which is the control or right to control the contraband, is sufficient to prove possession of a firearm. Argo v. State, 53 Ark.App. 103, 105, 920 S.W.2d 18, 20 (1996). Constructive possession can be implied where the contraband was found in a place immediately and exclusively accessible to the accused and subject to his control. Id. 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. Id.

White argues that the evidence did not exclude every reasonable hypothesis other than his guilt. He notes testimony that his cousin had driven the truck the day before officers searched it and that before he (White) was able to drive it on the morning of the search, he had to get the key from his cousin. White points out that other people were in the residence at the time the gun was found in the truck; no one could say when the gun was put there; other people had access to the truck, in which there was a prescription bottle belonging to someone named “Jennifer”; no fingerprints were taken from the gun; and the cousin initially claimed ownership of the gun, changing his story only when officers mentioned that the gun might be stolen and he was confronted with the possibility of being AWOL from the military.

White argues that there are other reasonable hypotheses as to who put the gun in the truck: specifically, his cousin or one of the other two persons in the house. He asserts that speculation is required to conclude that he put the gun in the truck or was in the truck at a time the gun was there. In support of his argument, he cites Williams v. State, 94 Ark.App. 440, 236 S.W.3d 519 (2006), where we reversed the circuit court's finding that the appellant constructively possessed a gun found in the apartment he jointly occupied with his girlfriend.

The appellant in Williams was already outside in the parking lot when police arrived to investigate a weapon-disturbance call. 94 Ark.App. at 444, 236 S.W.3d at 522. There were no signs that a struggle had occurred in the two-bedroom apartment or that the girlfriend had been in a struggle. Id. at 442, 236 S.W.3d at 521. Under the right side of the bed in one bedroom, an officer found a pistol case containing a Ruger .44 magnum with a laser-sighting system and loaded with six hollow-point bullets. Id. The officer did not know if the gun had ever been fired, and no fingerprints were taken from the bag, the gun, or the bullets. Id. There was no testimony regarding who had placed the gun under the bed, if appellant slept on the right side of the bed or even in that particular bedroom, if he was the person who had brought the gun into the apartment, if the gun was found with any of his personal belongings, or that he was the subject of the weapon-disturbance call. Id. at 444, 236 S.W.3d at 522. We held that evidence of the gun's presence in the jointly occupied apartment, along with the officer's testimony that the gun was large and difficult to handle, was not sufficient to link appellant to the gun. Id.

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