Carlos Terrell May v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, CHIEF JUDGE

DIVISION IV

CARLOS TERRELL MAY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-351

OCTOBER 25, 2000

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT, FORT

SMITH DISTRICT,

[NO. CR94-422-G, CR94-433-B]

HONORABLE MARK HEWETT,

CIRCUIT JUDGE

AFFIRMED

Appellant Carlos May appeals the revocation of his suspended imposition of sentence. On September 14, 1994, appellant was convicted of aggravated assault, engaging in criminal group activity, and robbery. Appellant was sentenced to serve a four-and-one-half-year prison term to be followed by fifteen-and-one-half years of suspended imposition of sentence, conditioned upon adhering to specified conditions including not violating any state or federal law. The State moved to revoke based upon allegations that, following his release from prison, appellant had violated the terms of his suspended sentence by committing the offenses of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and possession of marijuana. After a hearing on August 27, 1999, the trial court found by a

preponderance of the evidence that appellant had violated the terms andentered a revocation. Appellant challenges the sufficiency of the evidence to prove that he possessed contraband. We affirm.

To revoke a suspended sentence, a trial court must find by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension. Ark. Code Ann. § 5-4-309(d) (Repl. 1997). When appealing a revocation, the appellant has the burden of showing that the trial court's findings are against the preponderance of the evidence. Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). On appellate review, we uphold a revocation unless the trial court's findings are clearly against a preponderance of the evidence. Id. Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Id. We give due regard to the trial court's superior position to determine the credibility of the witnesses and the weight to be given their testimony. Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996).

The following evidence was presented at the revocation hearing, and we view it in the light most favorable to the State. In July 1999, law enforcement had received reports of drug activity in Room 31 of the Capri Motel in Fort Smith, Arkansas, which gave rise to monitoring by the Fort Smith Police Department. The police set up surveillance from another motel room. Appellant was observed on July 24, 1999, coming and going from the suspected room about ten times between 6:30 and 9:00 p.m. The police recorded appellant's following activity during that time. Appellant was seen leaving the motel room carrying a large quantity of clothes toward the office and laundry area of the motel and returning to the room minutes later. Appellant was observed leaving the room and entering a red car; thengetting out of the car with the two occupants and going to Room 29; then leaving Room 29 and getting into the car and leaving with the two males. One of those two males was seen unwrapping some object in his hand and nervously and repeatedly looking around; appellant was standing next to him drinking a beer at that time. Appellant later returned to Room 31. Appellant was seen entering Room 29 at other times, and this room was occupied by a known prostitute and crack user. Other vehicles came and went during surveillance. Due to the high traffic of various persons coming and going, the police strongly suspected that drugs were being dealt from Room 31.

Thereafter, police sent a confidential informant to buy crack cocaine with police money; the controlled drug buy was successful. The police were uncertain if appellant was present in the room during that transaction. The police then obtained a search warrant to search the motel room for crack cocaine and the police money. That same night, the police executed the search warrant and found appellant, three more adults, and one infant in the room. Appellant and another male were standing in front of the dresser when the police entered. One officer testified that he smelled marijuana emanating from the room. A search of the dresser revealed 4.1 grams of marijuana, 1.89 grams of cocaine, a cigar box, and a box of rolling papers in a drawer. The officers learned that the motel room was rented to one of the other male adults found in the room, who also had the key to the room and the drug-buy money in his pocket. Another of the adults had cocaine in his pocket. The known crack user who appellant had visited was searched, and a crack pipe was found on her person. It is undisputed that appellant had no contraband or money on him when the search wasconducted and that there was no contraband in plain view.

Appellant argues that there is insufficient evidence to link appellant to the contraband items found in the room such that this revocation should be reversed. We disagree with his argument. According to Darrough v. State, 330 Ark. 808, 811, 957 S.W.2d 707 (1997), the State need not prove that the accused physically possessed the contraband to sustain a possession conviction. Although constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy alone is insufficient to establish possession or joint possession in a criminal prosecution. Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998). The State must prove some additional factor linking the appellant to the contraband. See id. Specifically, the State must prove that the appellant exercised care, control, and management over the contraband, and that he knew the matter possessed was contraband. See Darrough v. State, supra. A defendant's suspicious behavior coupled with proximity to contraband is also indicative of possession. Id.

Appellant was observed leaving and returning several times to this room wherein drugs were found; visiting a nearby room that was occupied by a known crack user; escorting men from the room and returning; and standing next to the location where the contraband was found. Furthermore, one of the officers smelled the odor of marijuana emanating from the room. While this might not have been sufficient proof of constructive possession for a criminal conviction, because the State is held to a lesser standard of proof in revocation proceedings, constructive possession can be inferred on lesser proof. See Billings v. State, 53Ark. App. 219, 921 S.W.2d 607 (1996). We hold that the trial court was not clearly erroneous in concluding that the State proved by a preponderance of the evidence that appellant constructively possessed the drugs and paraphernalia in the motel room in violation of the terms of his suspended imposition of sentence.

Affirmed.

Bird and Neal, JJ., agree.