Reginald J. Dunn and Brian Hall v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

REGINALD J. DUNN and

BRIAN HALL

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR99-863

November 1, 2000

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION

[NO. CR 97-1716, CR 98-3459]

HON. JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED IN PART;

REVERSED IN PART

This criminal case arises out of a single set of circumstances resulting in the two individual appellants being convicted of various offenses. Both appellant Dunn and appellant Hall were convicted of possession of marijuana with intent to deliver. Dunn's probation for a prior offense was revoked based on the same evidence, and Hall was convicted of simultaneous possession of drugs and a firearm. From those decisions, comes this consolidated appeal.

For reversal, both Dunn and Hall argue that there was insufficient evidence to support their convictions of possession of marijuana with intent to deliver because the testimony of an accomplice was not adequately corroborated. Dunn also argues that the marijuana should not have been allowed into evidence because the State failed to establish an adequate chain of custody, and that his probation was erroneously revoked because the State failed to

introduce written conditions of his probation. Hall additionally argues that substantial evidence was lacking to support his separate conviction for simultaneous possession of firearms and drugs. We reverse and dismiss Dunn's conviction of possession of marijuana with intent to deliver, and affirm in all other respects.

The salient facts are as follows: The accomplice testified that Dunn agreed to pay him $800 to bring almost one hundred pounds of marijuana from Texas to Arkansas. The accomplice drove a rental car to Texas; he was followed by Dunn and Hall in Hall's pickup truck. After the marijuana was loaded in the accomplice's rental car, the accomplice left for Little Rock. He traveled separately from Dunn and Hall who, as previously agreed, left Texas some time afterward. While en route to Little Rock, the accomplice was stopped by police officers who discovered the marijuana and apprehended him. In exchange for a promise of leniency, the accomplice agreed to complete the transaction under police supervision. The accomplice stated that, on the instructions of a police officer, he telephoned Dunn, told him that he was in west Little Rock, that he had a flat tire, and asked if Dunn could come and help him. Dunn and Hall were observed by waiting police officers when they arrived in Hall's pickup truck, parking parallel to the accomplice's vehicle and about two feet away from it. Dunn opened the trunk of the accomplice's car and removed two dark plastic bags that he placed in the pickup truck. Amid shouts of "Police!," several officers rushed the scene with such energy and enthusiasm that the accomplice suffered a broken leg. Dunn fell to a crouch. Hall re-entered the pickup truck, shut the door, andappeared to be attempting to conceal something when apprehended. The dark plastic bags were found to contain almost one hundred pounds of marijuana.

The key issue in both Dunn and Hall's challenge to the sufficiency of their convictions of possession of marijuana with intent to deliver is whether the accomplice's testimony was sufficiently corroborated. The general rule regarding the sufficiency of corroboration recently has been set out as follows:

Standing alone, the corroboration for a felony conviction based upon accomplice testimony must be sufficient to establish the commission of the offense and to connect the defendant with it.

The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Notably, circumstantial evidence qualifies as corroborating evidence, but it must be substantial, although not so substantial in and of itself to sustain a conviction.

Henderson v. State, 337 Ark. 518, 521, 990 S.W.2d 530, 532 (1999). Furthermore:

Presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation and possession of instruments used in the commission of the offense are relevant factors in determining the sufficiency of corroboration by circumstantial evidence.

Dyas v. State, 260 Ark. 303, 314, 539 S.W.2d 251, 252 (1976). Finally, flight has been held to be sufficient corroboration of an accomplice's testimony. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983).

In the present case, we hold that the police officer's testimony that Hall fled to his vehicle is sufficient corroboration of the accomplice's testimony with respect to him. Dunn,however, did not flee, but merely crouched at the onset of the police officers. This seems completely explicable given that the raid was executed with sufficient force to result in accidental but serious injury to the accomplice, who was cooperating with the police. Although, under normal circumstances, Dunn's removal of the garbage bag from the trunk of the accomplice's car and placement of it in the pickup truck would be sufficient corroboration of the accomplice's testimony concerning Dunn's involvement, we think that, under the circumstances of the case at bar, the police officers rendered Dunn's handling of the plastic bags ambiguous by having the accomplice call and ask for help with a flat tire. As Dunn notes, it was necessary to get access to the spare tire to fix the flat, and it was necessary to remove the bags from the trunk to do so. All that remains is the bare fact that Dunn placed the bags in the pickup truck rather than on the ground, but this seems perfectly reasonable given that the bags had to be put somewhere, that it would be hazardous to leave obstacles lying around while jacking the car, and that the pickup truck was only two feet away.

We think that the facts of the present case are analogous to those presented in Green v. State, 265 Ark. 179, 182, 577 S.W.2d 586, 588 (1979), where our supreme court said that:

The question of evidence necessary to corroborate an accomplice's testimony to the extent of allowing a case to be submitted to a jury is necessarily governed by the facts and circumstances of each case as it is presented. Evidence which is merely suspicious in nature is insufficient, or if it is as consistent with innocence as guilt, it is not enough to submit the question of the defendant's guilt to the jury.

With respect to Dunn, the corroborating evidence is as consistent with innocence as with guilt, and we therefore reverse and dismiss as to him. Given our resolution of this issue, we need not address his argument concerning chain of custody. Dunn's final issue, concerning the propriety of his revocation in the absence of any evidence of written conditions, was not raised below and is therefore not preserved for appeal.1 Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (1987); Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984).

Finally, we address Hall's remaining argument, i.e., that his separate conviction for simultaneous possession of firearms and drugs is not supported by substantial evidence. Arkansas Code Annotated § 5-74-106 prohibits, among other things, a person's unlawful possession with intent to deliver a controlled substance while in possession of a firearm. Id. The State need not prove literal physical possession; possession of contraband can be proven by constructive possession. See Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). However, where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband, and the State must prove: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matterpossessed was contraband. Id. In the case of vehicles jointly occupied by more than one person, our supreme court has held that the accused's knowledge and control of the contraband is indicated by the following facts and circumstances: the contraband's presence (1) in plain view; (2) on the defendant's person or with his personal effects; (3) found on the same side of the car seat as the defendant was sitting or in immediate proximity to him; and whether the accused (4) was the owner of the automobile in question or exercising dominion and control over it, or (5) acting suspiciously before or during arrest. Id.

In determining the sufficiency of the evidence in this instance, we need only ascertain the evidence most favorable to the State. Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998). Viewed in this light, the record reflects that registration papers showing that Hall owned the pickup truck were found in the glove box; that a pistol was found in the center console of the truck along with an identification card bearing Hall's name; and that Hall fled to the pickup truck, shut the door, and appeared to be attempting to conceal something when apprehended. Given this evidence of Hall's knowledge and control pursuant to the factors enunciated in Plotts, supra, we hold that Hall's conviction of simultaneous possession of drugs and firearms is supported by substantial evidence.

Affirmed in part, reversed in part.

Neal and Stroud, JJ., agree.

1 We note that the uncorroborated testimony of an accomplice is a sufficient basis for revocation. See Ellerson v. State, 261 Ark. 525, 549 S.W.2d 495 (1977).