Jennifer Guest v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

JENNIFER GUEST

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-00063

NOVEMBER 6, 2002

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT

CR99-52 I

HON. JOHN HOMER WRIGHT, JUDGE

AFFIRMED

Appellant, Jennifer Guest, appeals from the revocation of her probation. After a hearing, the trial court found by a preponderance of the evidence that appellant had violated her probation by committing the offenses of possession of drug paraphernalia with intent to manufacture and possession of methamphetamine. She was sentenced to twelve years in the Arkansas Department of Correction. On appeal, appellant argues that the evidence was insufficient to support the revocation, and that the trial court erred by not excluding evidence taken by the authorities in bad faith. We disagree and affirm.

On February 10, 2001, law enforcement officers responded to a call from a female, intoxicated on drugs, who stated that she had just come from Room 143 at the Avanelle Motel in Hot Springs, Arkansas, and that there might be other drugs in the room. The officers proceeded to Room 143 without stopping by the manager's office and without a key to the room. They knocked on the locked door and announced themselves as law enforcement officers. The door was openedby Warren Fields, and appellant was lying on the bed nearest the door. Another individual, William Petty, was lying on the bed nearest the kitchen. The officers advised the occupants that they were following up on a call, and asked for and were given consent to search the room by all three individuals, who said they had nothing to hide. No one attempted at that time to determine who had rented the room; however, it was later determined that the room was rented to Petty.

Upon entering the room, the officers noticed the smoke detector hanging down from the wall, as if someone had possibly tampered with it, as well as drug paraphernalia in plain view, including a piece of rolled up burnt tinfoil, a pipe, a spoon, a kerosene stove, a can of acetone, and a coffee filter with a red residue thought to be red phosphorus. The officers then located a locked plastic footlocker at the foot of Petty's bed. Petty assisted in unlocking and opening the footlocker, in which officers found two syringes that were then placed on top of the footlocker to be photographed. Appellant's coat and other personal effects were also in the room, and one officer stated that some of appellant's clothes were in Petty's truck parked outside the room. Upon the discovery of the drug paraphernalia, appellant, Fields, and Petty were removed from the room and taken into custody.

Another Hot Springs police officer testified that he received a call from the scene stating that officers had gained consent to look through Room 143 and had observed instruments of crime in plain view. He brought a drug-sniffing dog into the room, and it alerted to a pillow on the bed where appellant was found. Under the pillow was a black film canister and in it were clear plastic bags with white powder. On a table, the officer observed digital scales inside a day planner and a pipe appearing to contain marijuana. He also identified a photograph that showed a contact lens case and a black case with a protruding gun handle. Appellant argued that this evidence must have come from Petty's truck, but the officer remembered the items being in the motel room.

A drug task force officer then collected evidence from the room, took photographs, and performed a field test. He testified that the lab report concluded that the items tested contained methamphetamine, phosphorus, and iodine. A state crime lab report was entered into evidence indicating that the film container, the plastic bags found therein, and a metal vial tested positive for methamphetamine residue.

Appellant argues that there was insufficient evidence presented to show that she was in possession of the contraband in violation of a condition of her probation. A trial court may revoke a defendant's probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition. Ark. Code Ann. § 5-4-309(d) (Repl. 1997). In revocation proceedings, the State has the burden of proof, and this court will not reverse the trial court's decision to revoke unless it is clearly against the preponderance of the evidence. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). Evidence that may not be sufficient to support a criminal conviction may be sufficient to demonstrate the violation of conditions of probation or suspension. Id. A determination of preponderance of the evidence turns heavily on questions of credibility and weight to be given to the testimony, and, in that respect, we defer to the superior position of the trial court to make that determination. Id.

It is undisputed that the contraband was not found on appellant's person, but possession of a controlled substance does not require actual or physical possession. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Constructive possession, which is the control or right to control the contraband, is sufficient. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id. See also Darrough v. State, 332 Ark. 251, 908 S.W.2d 325 (1995); Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517 (2002); Boston v. State,69 Ark. App. 155, 12 S.W.3d 245 (2000). Where there is joint occupancy of the premises where the contraband is seized, some additional factor must be found to link the defendant to the contraband; the State must prove that the accused exercised care, control, and management over the contraband and also that the defendant knew that the matter possessed was contraband. Mayo, 70 Ark. App. at 456, 20 S.W.3d at 421. This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. See Young v. State, 77 Ark. App. 245, 72 S.W.3d 895 (2002). Here, appellant was present in the motel room with two other people; numerous items of contraband were found in plain view; appellant was in extremely close proximity to the contraband found underneath the pillow on the bed upon which she was lying; and appellant had a similar, prior drug conviction. These facts provide sufficient evidence to support the trial court's finding that she constructively possessed methamphetamine and drug paraphernalia with the intent to manufacture in violation of the conditions of her probation.

Appellant also argues that certain evidence discovered by officers should have been excluded because the officers, acting in bad faith, moved certain items from a truck outside the motel room into the room for the purpose of photographing it. It has long been the law in this state that the exclusionary rule does not apply in revocation hearings. See Cook v. State, 59 Ark. App. 24, 952 S.W.2d 677 (1997). An exception, however, may exist if the probationer can prove a lack of good faith by the law enforcement officers. McGhee v. State, 25 Ark. App. 132, 752 S.W.2d 303 (1988). The trial judge heard testimony from the officers regarding the movement of the evidence and their explanation as to the procedures followed, and in denying the motion to suppress found that appellant failed to prove a lack of good faith by the law enforcement officers. The court was able to consider the totality of the officers' testimony when determining their credibility and weighingthe evidence, and was in a superior position to ascertain whether there was any attempt by the officers to "mislead" the court.

Moreover, appellant makes no claim that the law enforcement officers planted either the items of paraphernalia that were in plain sight upon their entry into the motel room or the film canister containing methamphetamine that was discovered during the canine search of the bed on which she had been lying. Those items alone are sufficient to support the trial court's decision that appellant violated the terms and conditions of her probation. Appellant failed to demonstrate that the movement of other items by the law enforcement officers resulted in prejudice to her. See Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001).

Affirmed.

Robbins and Baker, JJ., agree.