{ "id": 6137639, "name": "Larry WALKER v. STATE of Arkansas", "name_abbreviation": "Walker v. State", "decision_date": "2002-04-10", "docket_number": "CA CR 01-941", "first_page": "122", "last_page": "129", "citations": [ { "type": "official", "cite": "77 Ark. App. 122" }, { "type": "parallel", "cite": "72 S.W.3d 517" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "60 Ark. App. 198", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139421 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "203" }, { "page": "375", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/ark-app/60/0198-01" ] }, { "cite": "68 Ark. App. 332", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141026 ], "weight": 3, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark-app/68/0332-01" ] }, { "cite": "69 Ark. App. 155", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139090 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/69/0155-01" ] }, { "cite": "318 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455726 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "207" }, { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/ark/318/0201-01" ] }, { "cite": "341 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257795 ], "weight": 3, "year": 2000, "pin_cites": [ { "parenthetical": "citing Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994)" }, { "parenthetical": "citing Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994)" } ], "opinion_index": 0, "case_paths": [ "/ark/341/0041-01" ] }, { "cite": "338 Ark. 97", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243584 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0097-01" ] }, { "cite": "336 Ark. 191", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 51308 ], "weight": 2, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/336/0191-01" ] }, { "cite": "932 S.W.2d 432", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1999, "opinion_index": 0 }, { "cite": "326 Ark. 423", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12022916 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/326/0423-01" ] }, { "cite": "70 Ark. App. 329", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142092 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark-app/70/0329-01" ] }, { "cite": "50 Ark. App. 185", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139464 ], "weight": 2, "year": 1995, "opinion_index": 1, "case_paths": [ "/ark-app/50/0185-01" ] }, { "cite": "322 Ark. 728", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447472 ], "weight": 2, "year": 1995, "opinion_index": 1, "case_paths": [ "/ark/322/0728-01" ] }, { "cite": "318 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455726 ], "weight": 2, "year": 1994, "opinion_index": 1, "case_paths": [ "/ark/318/0201-01" ] }, { "cite": "341 Ark. 41", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1257795 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "47" }, { "page": "493", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/ark/341/0041-01" ] }, { "cite": "300 Ark. 369", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886889 ], "weight": 2, "year": 1989, "opinion_index": 2, "case_paths": [ "/ark/300/0369-01" ] }, { "cite": "75 Ark. App. 126", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138242 ], "weight": 2, "year": 2001, "opinion_index": 2, "case_paths": [ "/ark-app/75/0126-01" ] }, { "cite": "325 Ark. 73", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369200 ], "weight": 2, "year": 1996, "opinion_index": 2, "case_paths": [ "/ark/325/0073-01" ] }, { "cite": "337 Ark. 239", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1241025 ], "weight": 2, "year": 1999, "opinion_index": 2, "case_paths": [ "/ark/337/0239-01" ] }, { "cite": "346 Ark. 62", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1111308 ], "weight": 2, "year": 2001, "opinion_index": 2, "case_paths": [ "/ark/346/0062-01" ] }, { "cite": "50 Ark. App. 185", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139464 ], "weight": 2, "year": 1995, "opinion_index": 2, "case_paths": [ "/ark-app/50/0185-01" ] } ], "analysis": { "cardinality": 659, "char_count": 13433, "ocr_confidence": 0.745, "pagerank": { "raw": 3.2702194628678883e-07, "percentile": 0.8700408788311597 }, "sha256": "698b84c4f956065a5c65b3ead513aa07989f6a2699cb989f32b1be518348bcc5", "simhash": "1:a2ced185e98a37da", "word_count": 2247 }, "last_updated": "2023-07-14T22:00:28.541561+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hart, Bird, Griffen, Neal, and Baker, JJ., agree.", "Stroud, C.J., Pittman, and Jennings, JJ., dissent." ], "parties": [ "Larry WALKER v. STATE of Arkansas" ], "opinions": [ { "text": "Larry D. Vaught, Judge.\nAppellant was convicted in a bench trial of possession of a controlled substance and possession of drug paraphernalia. He was sentenced to sixty months\u2019 imprisonment, with thirty-six months suspended. Appellant\u2019s 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.\nOn 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 \u201cthat might have cause to be on the property.\u201d Appellant arrived about 1:30 a.m. driving a vehicle belonging to his passenger, Darlene Abies. Deputy Brocker testified that he stopped the vehicle and checked appellant\u2019s 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\u2019s person revealed a clear plastic bag which later tested positive for methamphetamine residue. However, the search of appellant produced no evidence of contraband.\nSubsequent to the searches of both individuals, a canine search of the vehicle was performed and the dog alerted under the driver\u2019s 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, Abies 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).\nWalker challenges the trial court\u2019s 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 432 (1999). 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).\nThe 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:\nOther 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\u2019s 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,r 5) whether the accused acted suspiciously before or during the arrest.\nMings, supra at 207, 884 S.W.2d at 600.\nAlthough 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\u2019s personal effects, and suspicious acts of accused) indicate that the accused had direct knowledge of the presence of the contraband.\nWhile 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\u2019s 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.\nKnowledge 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 \u201cfall short of demonstrating the degree of connection to the contraband or knowledge of its presence.\u201d Id. at 203, 962 S.W.2d at 375 (emphasis added).\nIn the case at bar, appellant was in Darlene Ables\u2019s 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\u2019s 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\u2019s convictions and dismiss the charges against him.\nReversed and dismissed.\nHart, Bird, Griffen, Neal, and Baker, JJ., agree.\nStroud, C.J., Pittman, and Jennings, JJ., dissent.", "type": "majority", "author": "Larry D. Vaught, Judge." }, { "text": "ohn F. Stroud, Jr., Chief Judge,\ndissenting. I would affirm appellant\u2019s 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.\nIn 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:\nIt 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:\nOther 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\u2019s 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.\n341 Ark. at 47, 14 S.W.3d at 493 (citations omitted) (emphasis added). I agree with the majority that in the present case, only factors three and four are present. However, there is no set number of factors that are required to be present in order to link a defendant to the contraband. Furthermore, this list of factors to be considered is not an exhaustive one. In addition to the five factors fisted above, our supreme court has also considered the improbability that anyone other than the occupants of the vehicle placed the contraband in the vehicle, and the improbable nature of the accused\u2019s explanation for his journey. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995).\nIn this case, appellant and Abies drove up to a Quonset hut that was filled with stolen merchandise at 1:30 in the morning. Appellant\u2019s stated reason for being in Mount Vernon was that he was going to Ables\u2019s mother\u2019s house to spend the night and to help start a garden and clean the yard. He said that when he missed the driveway, Abies told him to go on up to the Quonset hut because she knew some girl that was there and she wanted to see if she was home. Appellant said that he could not understand why Abies would tell the police that they were at the Quonset hut to see Dan because they had heard someone had been arrested. Appellant, who admitted that he had previous felony drug convictions, testified that he told Abies that she needed to clean her car out because he knew that she had been \u201cconvicted of crystal meth.\u201d He denied knowing that the gloves were in the car and said that when he got in the car, it appeared to have been picked up. However, decisions regarding the credibility of witnesses are for the trier of fact, and the trier of fact is not required to believe any witness\u2019s testimony, especially the testimony of the accused since he is the person most interested in- the outcome of the trial. Hickson v. State, 50 Ark. App. 185, 901 S.W.2d 868 (1995).\nIn my opinion, there is substantial evidence to support appellant\u2019s convictions. Appellant was driving the car, the drugs were found under his seat, and when asked, he gave an improbable explanation as to why he was at a secured crime scene at 1:30 in the morning.\nI dissent, and I am authorized to state that Judges Pittman and Jennings join in this dissent.", "type": "dissent", "author": "ohn F. Stroud, Jr., Chief Judge," }, { "text": "John Mauzy Pittman, Judge,\ndissenting. I join in Chief Judge Stroud\u2019s dissent. I write only to point out one\nadditional problem with the majority opinion.\nThe majority appears to rely heavily upon the idea that the car belonged to appellant\u2019s passenger; the majority opinion states the proposition as fact more than once. In concluding that the evidence was insufficient to support a finding that appellant constructively possessed the methamphetamine found under the seat of a car that appellant was driving, the majority emphasizes that \u201cappellant was in Darlene Ables\u2019s car, and [other] methamphetamine was found on her person and not on appellant.\u201d However, the only evidence that the car belonged to Ms. Abies is found in appellant\u2019s own testimony.\nThis case is unquestionably governed by the substantial evidence standard of review. That standard includes as an integral part the rule that we view the evidence in the light most favorable to the appellee, in this case the State. Among other things, viewing the evidence in the light most favorable to the State means that we consider only that evidence that tends to support the verdict and that we do not weigh it against evidence favorable to the appellant. Branstetter v. State, 346 Ark. 62, 57 S.W.3d 105 (2001); Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999); Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). Nor do we pass on the credibility of the witnesses; that duty is left to the trier of fact. Ford v. State, 75 Ark. App. 126, 55 S.W.3d 315 (2001); Hickson v. State, 50 Ark. App. 185, 901 S.W.2d 868 (1995). The trier of fact is not required to believe any witness\u2019s testimony, especially that of the accused since he is the person most interested in the outcome of the trial. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989); Hickson v. State, supra. By accepting appellant\u2019s testimony regarding ownership of the car as true, the majority has failed to view the evidence in the light most favorable to the State and has misapplied this court\u2019s standard of review.\nFor the reasons stated in Judge Stroud\u2019s dissent, my opinion that appellant\u2019s conviction is supported by substantial evidence would not change even were I to assume that the car belonged to Ms. Abies. However, to the extent that the majority relies upon such ownership for its decision to reverse, that reliance is misplaced.", "type": "dissent", "author": "John Mauzy Pittman, Judge," } ], "attorneys": [ "Steven M. Harper, for appellant.", "Mark Pryor, Att\u2019y Gen., by: David J. Davies, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Larry WALKER v. STATE of Arkansas\nCA CR 01-941\n72 S.W.3d 517\nCourt of Appeals of Arkansas Divisions II, III, and IV\nOpinion delivered April 10, 2002\nSteven M. Harper, for appellant.\nMark Pryor, Att\u2019y Gen., by: David J. Davies, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0122-01", "first_page_order": 142, "last_page_order": 149 }