Gary F. Williams v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION I

GARY F. WILLIAMS,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-233

JANUARY 31, 2001

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT,

NO. CR96-69,

HON. GERALD E. PEARSON,

JUDGE

AFFIRMED

Gary F. Williams appeals the revocation of his probation after a hearing in which he was found to have violated one of the conditions of the probation by possessing cocaine. He was then sentenced to serve ten years in the Arkansas Department of Correction. Williams's attorney has filed a no merit brief, and the State has responded by letter stating that it does not intend to file a brief in the case.

On May 10, 1996, Williams entered a plea of guilty to possession of a controlled substance with the intent to deliver, a Class Y felony, and was granted a ten-year suspended imposition of sentence as long as he adhered to certain conditions. A petition for revocation was filed on May 27, 1999, and an amended petition for revocation was filed on June 25, 1999. The June petition alleged that Williams had violated the conditions of his suspended imposition of sentence by (1) failing to pay fines, costs, and probation fees as ordered; (2)failing to report to his probation officer as directed; (3) possessing and using a controlled

substance, cocaine; (4) failing to keep his probation officer and the sheriff apprised of his current address and employment; (5) associating with others in committing crimes; (6) failing to work regularly at suitable employment; and (7) associating with other felons.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Williams's counsel has filed a motion to withdraw on the ground that this appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with a list of objections made by the appellant and ruled on by the court, a record of all motions and requests made by the appellant and denied by the court, and a statement of the reasons why counsel considers there to be nothing in the record that will support the appeal. The State concurs that the appellant's counsel has complied with Rule 4-3(j) and that the appeal has no merit. The clerk of this court furnished the appellant with a copy of his counsel's brief and notified him of his right to file a pro se statement of points on appeal. The appellant has not done so.

To revoke probation, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. Ark. Code Ann. § 5-4-309(d)(Repl. 1993); Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992); Ramey v. State, 62 Ark. App. 204, 972 S.W.2d 952 (1998). On appellate review, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Since determination of a preponderance of the evidence turns on questions of credibility and weight to be giventestimony, we defer to the trial judge's superior position. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998).

At the revocation hearing, Chris Neal, an officer of the West Memphis Police Department, testified that on May 21, 1999, at approximately 3:00 a.m., he was patrolling a high crime area when he noticed a vehicle on the back parking lot of the McDonald's on Martin Luther King, Jr., Drive that had an invalid license plate. He approached the vehicle and removed the driver as Officer William Nelson and his partner, Officer Lawson, got the passengers out of the car. Appellant Williams was identified by both officers as the occupant of the vehicle who was seated in the front on the passenger's side of the car. The officers conducted pat-down searches; then Officer Lawson asked the driver, who owned the car, if they could look inside. He agreed, and in the front floorboard, directly in front of the place where Williams was seated, the officers discovered several loose, white, rock-like substances that field tested as containing cocaine. Furthermore, in the back seat of the car was a man the officers knew as Paul Jones a/k/a Paul Johnson, a convicted felon whom Officer Nelson testified he had arrested just a week before. Officer Nelson's testimony also corroborated Officer Neal's testimony.

The trial court revoked William's probation upon finding that he had violated the conditions regarding controlled substances and convicted felons. Counsel asserts that due to the lower burden of proof in a revocation hearing, preponderance of the evidence, the evidence recited is sufficient to support the revocation of Williams's probation.

Since the cocaine was not found on Williams, the State had to prove that he hadconstructive possession of it. Constructive possession is control or the right to control the contraband. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Darrough, supra. 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. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994); Osborne, supra. The State must show facts and circumstances indicating the accused's knowledge and control of the contraband. See Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994); Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). 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 and control over it; and (5) whether the accused acted suspiciously before or during the arrest. Plotts v. State, 297 Ark. 66, 69, 759 S.W.2d 793, 795 (1988).

Here, the testimony of the officers established that the cocaine was in plain view, scattered on the floor of the passenger's side of the car where it would have been at Williams's feet. Furthermore, there is no question that Williams knew that it was there because Officer Nelson testified that when Officer Neal advised Williams of his Mirandarights, Williams immediately denied that the crack was his, and said, "It must be his crack, it is not my crack, it has got to belong to that white dude driving." The officer said it did not appear to him that Williams even knew the driver's name. In addition, there was a convicted felon in the car. This evidence is adequate to support the court's findings that Williams had violated two conditions of his probation: that he not possess any controlled substance or associate with anyone who does, and that he not associate with anyone who has been convicted of a crime. In order for probation to be revoked, the State need only prove that the defendant committed one violation of the conditions. Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998); Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987).

Counsel has also abstracted each objection decided adversely to Williams and explained why the trial court's ruling in every instance was correct. Therefore, from our review of the record and brief presented, we find there has been full compliance with the requirements of Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed.

Hart and Griffen, JJ., agree.