Willie Golden v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE JOSEPHINE LINKER HART

DIVISION III

WILLIE GOLDEN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-958

March 6, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2000-1237]

HONORABLE JOHN BERTRAN PLEGGE, CIRCUIT JUDGE

AFFIRMED

At a bench trial, appellant, Willie Golden, was convicted of possession of a controlled substance with the intent to deliver and possession of drug paraphernalia, and he was sentenced to four years' imprisonment. On appeal, he argues that his convictions were not supported by substantial evidence. We affirm.

The evidence presented by the State established that while police were executing a search warrant at a residence at 1522½ Sycamore in North Little Rock on February 24, 2000, they saw appellant standing outside of the residence with a group of people. According to the arresting officer, appellant and two women were in the yard of the residence; however, the women were standing next to, but not exactly where appellant was standing. The other four or five persons were standing in the yard next door. Further, appellant had been seenat the residence on several different occasions by officers who were making controlled purchases there. As the police officers approached the residence, the arresting officer saw appellant walk

the other way and throw onto the ground a plastic bag that was later retreived and found to contain marijuana. The officer also found a brown paper sack within two or three feet behind where appellant had been standing and within two or three feet of the plastic bag. That bag contained six smaller plastic bags containing marijuana. The officer further testified that the plastic bag thrown by appellant was of the same material as those found in the paper sack. The total weight of the marijuana found outside the residence was approximately fifteen to sixteen grams.

After the arrest, the police officer removed a set of keys from appellant's pocket. One of the keys fit the front door of the residence where the search warrant was to be executed. Two small children were found in the residence. In addition, one officer also found $90 on a kitchen counter top of which $50 was "North Little Rock Police Department buy funds," $178 on another kitchen counter top, and $210 under a mattress in a bedroom. The officer also found in the bedroom an "Alltel Customer Service Agreement" with appellant's name thereon, but no address, as well as three photographs of appellant. In the kitchen, the officer found marijuana residue in a trash can, marijuana residue in a trash bag, and a shopping bag that contained several plastic bags with marijuana residue, with the shopping bag being found either on or in a cabinet. The total weight of the marijuana "residue" found in theresidence was over twenty grams.1

Appellant first challenges the sufficiency of the evidence to support his conviction for possession of marijuana with the intent to deliver. He contends that the only evidence that he was in possession of any marijuana came from the testimony of the officer who saw appellant throw a small plastic bag to the ground. Appellant argues that because other persons were near the brown paper sack, there was not substantial evidence that he possessed the several bags of marijuana found in the paper sack. Further, he argues that the State failed to establish that he possessed marijuana with the intent to deliver, as the amount of marijuana found in the plastic bag that appellant threw to the ground was less than the amount necessary to trigger the statutory rebuttable presumption of possession with the intent to deliver, which is triggered only when a person possesses more than one ounce of marijuana. See Ark Code. Ann. § 5-64-401(d) (Supp. 2001).

When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and affirm if there is substantial evidence to support the conviction. Dodson v. State, 341 Ark. 41, 47, 14 S.W.3d 489, 493 (2000). "Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation orconjecture." Id. In deciding whether there is substantial evidence of constructive possession, we are guided by the following:

In order to prove that a defendant is in possession of a controlled substance, constructive possession is sufficient. Constructive possession can be implied when the controlled substance is in the joint control of the accused and another. Joint occupancy, though, is not sufficient in itself to establish possession or joint possession. There must be some additional factor linking the accused to the contraband. The State must show additional facts and circumstances indicating the accused's knowledge and control of the contraband.

Hendrickson v. State, 316 Ark. 182, 189, 871 S.W.2d 362, 365 (1994)(citations omitted).

We conclude that there was substantial evidence that appellant constructively possessed the marijuana residue found inside the residence. Appellant does not dispute that there was substantial evidence that he possessed the marijuana in the plastic bag that the officer saw him throw to the ground. Further, there was substantial evidence that appellant was in at least joint possession of the residence, as he was in possession of a key to the residence and had been seen at the residence on past occasions. The conclusion is further supported by the discovery in the residence of appellant's customer service agreement and the photographs of appellant. His knowledge and control of the marijuana residue found in the residence are supported by the fact that buy money and several bags containing marijuana residue were found in a common area of the residence. We note that constructive possession may be established in part by the presence of contraband in common areas of the residence. See Sweat v. State, 25 Ark. App. 60, 65-66, 752 S.W.2d 49, 51 (1988). We further note that it is undisputed that appellant possessed one bag of marijuana. Considering these facts together, there was substantial evidence that appellant constructively possessedthe marijuana found in the residence.

We also conclude that appellant constructively possessed the brown paper sack in which the plastic bags containing marijuana were found. The paper sack was found in close proximity to appellant and to the plastic bag appellant was seen throwing to the ground. Further, the plastic bags in the paper sack were of a similar material as that of the plastic bag appellant threw down. Also, we have concluded that appellant constructively possessed the bags containing marijuana residue that were found in the residence. This evidence, when considered together, provides substantial evidence of appellant's knowledge and control of the marijuana contained in the plastic bags found in the paper sack.

Further, when we add the total weights of the marijuana found inside the residence, over twenty grams, and outside the residence, approximately fifteen to sixteen grams, there was a sufficient amount of marijuana found, over one ounce, to trigger the rebuttable presumption that appellant possessed the marijuana with the intent to deliver. Moreover, a conviction for trafficking may be upheld when less than the presumptive amount was found in the possession of the accused but where other proof of intent to deliver was present. Hendrickson, 316 Ark. at 188, 871 S.W.2d at 365. Because appellant constructively possessed several plastic bags containing either marijuana or marijuana residue, there was substantial evidence of appellant's intent to deliver the marijuana. See Blockman v. State, 69 Ark. App. 192, 196-97, 11 S.W.3d 562, 565 (2000)(concluding that intent to deliver was evidenced by the fact that the rocks of crack cocaine were individually wrapped).

Appellant next argues that his "mere possession of one plastic bag of marijuana [that]contained a very small amount of marijuana is insufficient" to support his conviction for possession of drug paraphernalia. Appellant's argument, however, is flawed, as we conclude that there was substantial evidence that he possessed several plastic bags containing either marijuana or marijuana residue. Furthermore, there was substantial evidence that the plastic bags were drug paraphernalia.

It is unlawful for any person to use drug paraphernalia to store or contain a controlled substance. Ark. Code Ann. § 5-64-403(c)(1) (Supp. 2001). The term "drug paraphernalia" includes all equipment, products, and materials of any kind that are used for storing or containing controlled substances. Ark. Code Ann. § 5-64-101(v) (Repl. 1997). Specifically included within the definition of "drug paraphernalia" are containers and other objects used in storing controlled substances. Ark. Code Ann. § 5-64-101(v)(10) (Repl. 1997). We compare the facts at hand with those of Sanders v. State, 76 Ark. App. 104, 61 S.W.3d 871 (2001), where we held that the finder of fact could conclude that a cigar box containing marijuana and methamphetamine was used as a container for concealing controlled substances, and that such an object "fits squarely within the statutory definition of drug paraphernalia." Sanders, 76 Ark. App. at 110, 61 S.W.3d at 875. Considering that the bags found inside and outside the residence contained either marijuana or marijuana residue, there was substantial evidence to support the conclusion that the bags were drug paraphernalia.

Affirmed.

Jennings and Neal, JJ., agree.

1 The unabstracted portion of the record reveals other documents were found in the residence. An officer found in a kitchen drawer a rent receipt dated February 1, 2000, showing $275 was received from "James Parks" for rent for the month of February at 1522½ Sycamore. The officer also found in the kitchen drawer a North Little Rock water bill addressed to Markell D. Washington at 1522½ Sycamore with a billing date of January 11, 2000.