Carroll Eugene Spillers v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION II

CARROLL EUGENE SPILLERS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-616

MAY 9, 2001

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT, FIRST

DIVISION, [NO. CR99-1663]

HONORABLE MARION ANDREW

HUMPHREY, CIRCUIT JUDGE

AFFIRMED

Appellant Carroll Eugene Spillers was convicted by a jury of possession of methamphetamine, possession of marijuana, possession of drug paraphernalia, and simultaneous possession of drugs and a firearm. Mr. Spillers appeals only from his conviction for simultaneous possession of drugs and a firearm, for which he was sentenced to ten years in the Arkansas Department of Correction. For reversal, he argues that there was insufficient evidence to support his conviction. Specifically, Mr. Spillers contends that there was no proof that the object he was accused of possessing met the statutory definition of a firearm. Alternatively, he argues that, even if the object constituted a firearm, there was insufficient circumstantial evidence that it was in his possession. We find no error and affirm.

When we review a challenge to the sufficiency of the evidence, we will affirm the

conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Circumstantial evidence may provide the basis to support a conviction, but it must exclude every other reasonable hypothesis consistent with innocence. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000).

Charles Wayne Allen of the Little Rock Police Department testified that he was patrolling in the early morning hours of June 8, 1999, when he observed a vehicle sitting in a self-service car wash. He stated that two individuals, later identified as Mr. Spillers and his girlfriend Jamie Grant, were sitting in the car. Since the individuals were just sitting in the car and not washing it, Officer Allen became suspicious and decided to approach.

When Officer Allen approached the vehicle, both occupants exited quickly and Mr. Spillers appeared to be nervous. Mr. Spillers exited from the driver's side and left the door open. Officer Allen asked for permission to search the car, and Mr. Spillers consented to the search.

Officer Allen testified that when he walked up to the driver's side of the car, he observed a Browning semi-automatic handgun, in plain view, lying on the floorboard in front of the driver's seat. At that time, he arrested Mr. Spillers and searched his person. During his search of Mr. Spillers, Officer Allen found small quantities of methamphetamine and marijuana. A search of the vehicle uncovered ammunition, rolling papers, and straws. Officer Allen indicated that, when he seized the handgun, it was loaded.

Mr. Spillers testified on his own behalf, and he denied possessing the handgun. He acknowledged that he had been driving the vehicle, which belonged to his girlfriend, on the morning at issue. However, he indicated that the gun belonged to a friend and he was not aware that it was in the car.

Mr. Spillers' first argument on appeal is that there was no proof that the handgun found in the car fell within the definition of Ark. Code Ann. § 5-1-102(6) (Repl. 1997), which provides:

"Firearms" means any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use, including such a device that is not loaded or lacks a clip or other component to render it immediately operable, and components that can readily be assembled into such a device[.]

Mr. Spillers acknowledged that the seized object was described as a loaded Browning semi-automatic handgun, but submits that this fails to meet the statutory definition of a firearm. He contends that the jury was left to speculate whether the gun was a firearm or merely a pellet or air gun. He further notes that the term "firearm" was never used by any witness during his trial. In addition, Mr. Spiller asserts that there was no evidence that the handgun was capable of firing. He argues that, since the proof failed to establish that the object was a firearm as defined in the criminal code, his conviction for simultaneous possession of drugs and a firearm should be reversed.

Mr. Spillers' next argument is that, even if the gun was a firearm, there was insufficient evidence that he possessed it. He points out that the State failed to prove actual possession of the gun, and contends that there was a lack of sufficient circumstantialevidence to prove constructive possession.

As the State asserts in its brief, Mr. Spillers' first challenge to the sufficiency of the evidence on appeal is not preserved for review. When Mr. Spillers moved for directed verdicts at the close of the State's case and at the close of the evidence, he argued that there was insufficient evidence that he possessed the handgun; however, he did not argue that the handgun was not a "firearm" as defined in the relevant statute. If a motion for directed verdict does not specify the basis for the motion, it is insufficient to preserve a specific argument for appellate review. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). In the instant case, Mr. Spillers preserved his second point on appeal because he argued below that the State failed to prove possession. However, we need not address his first point on appeal because it was not raised before the trial court. In Walker v. State, supra, the supreme court explained, "The reasoning underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof." Id. at 109, 883 S.W.2d at 832 (quoting Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994).

We now turn to the merits of Mr. Spillers' argument that the State failed to prove constructive possession of the handgun. Joint occupancy of a vehicle, standing alone, is not sufficient to establish possession. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). There must be some additional factor linking the contraband to the accused, and such factors include: (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 seatas 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. Id. at 207, 884 S.W.2d at 600.

In the instant case there were sufficient additional factors to link Mr. Spillers with possession of the gun. Officer Allen observed Mr. Spillers exit the vehicle from the driver's seat and Mr. Spillers admitted he was driving the car, which demonstrated that he was in control of the vehicle. Moreover, the gun was found on the floorboard in front of where Mr. Spillers had been sitting, in plain view. Finally, there was evidence that Mr. Spillers acted suspiciously before his arrest in that he was nervous upon being confronted by Officer Allen. These factors provided substantial evidence to support the jury's conclusion that Mr. Spillers was in possession of the handgun, and thus there was substantial evidence to support his conviction for simultaneous possession of drugs and a firearm.

Affirmed.

Vaught and Crabtree, JJ., agree.