Angelo Ganaway v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

ANGELO GANAWAY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-111

DECEMBER 18, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION

[NO. CR-2001-1170]

HONORABLE JOHN W.

LANGSTON, JUDGE

AFFIRMED

Appellant Angelo Ganaway appeals his conviction for possession of cocaine with intent to deliver, as entered after a bench trial in Pulaski County Circuit Court. Appellant's sole point on appeal is that there was insufficient evidence to support the finding that he constructively possessed the cocaine. We disagree with him and affirm.

The facts as presented to the trial court are as follows. On July 6, 2000, a Little Rock police officer, Officer Healy, and his partner that day, Officer Mabry, were patrolling in a marked patrol unit when they observed a vehicle fail to stop at a stop sign. Healy followed the vehicle onto an E-Z Mart parking lot, activated the unit's blue lights, and pulled in behind the vehicle. The vehicle approached the gasoline pumps. Appellant was in the front passenger seat. Mabry noticed appellant bend over and make "a motion of putting something in the floorboard." The driver, later determined to be Christopher Winston,

exitedthe vehicle, and Healy approached Winston. Healy was told by the driver that appellant's name was Broderick Ganaway, which is appellant's brother's name.

Mabry approached the passenger side of the car. Mabry asked appellant for his name, and according to Mabry, appellant told him that his name was Ganaway Williams. Mabry ran this name through the police system with no result, so Mabry asked appellant to get out of the vehicle. A search of appellant's person revealed $60 in appellant's left shoe.

The driver was given a citation for the moving violation and for failure to have proof of insurance or a valid driver's license. The vehicle was impounded, and both the driver and appellant were placed in the back of the patrol unit. An inventory search took place, which revealed ten plastic bags of rock cocaine underneath the passenger floor mat. The total weight of the bags was just over eight grams, with a "street value" of approximately $800.

At the conclusion of the State's case, appellant moved for a directed verdict arguing that there was insufficient proof that appellant knew of, or had control over, the drugs and that the officer was speculating what appellant did when he observed him bend over.1 The motion for a directed verdict was denied.

Appellant took the stand, admitting that he was with Winston that day riding around in Winston's car and that he was in the passenger seat. Appellant could not recall bendingover while in the passenger seat. Appellant said that he did not know that there were drugs in the car and denied ownership of the drugs. Appellant conceded that he gave two false names to the officer, but he explained that he did this because he assumed that there were warrants for his arrest. Appellant stated that when the officer was questioning him, he was nervous and "under the influence." Appellant acknowledged that his brother Broderick was arrested on the current charges and had to appear in court, but appellant's true identity was eventually revealed.

At the conclusion of the evidence, appellant renewed his motion for directed verdict, which was denied. Appellant was found guilty, and this appeal followed. As he argued at trial, appellant asserts on appeal that there is insufficient evidence to support his conviction because of the lack of proof of constructive possession. Thus, appellant argues that the trial court erred in refusing to grant his motion for a directed verdict.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994). Evidence is substantial if it is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). On appeal, this court need only look at that evidence most favorable to appellee and consider only that testimony which supports the verdict. Brown, 315 Ark. at 471, 869 S.W.2d at 12.

In this case, all parties agree that the conviction depended upon sufficient proof that appellant, a joint occupant of the vehicle, possessed the cocaine. It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Possession of drugs can be proved by constructive possession. Littlepage v. State, supra. Constructive possession may be implied when the contraband is in the joint control of the accused and another. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). However, joint occupancy alone is insufficient to establish possession or joint possession. Id. The State must establish that (1) the accused exercised care, control, and management over the contraband, and (2) the accused knew the matter possessed was contraband. Id. Factors to be considered when there is joint occupancy of a vehicle 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 or control over it; and (5) whether the accused acted suspiciously before or during the arrest. Mings v. State, 318 Ark. 201, 207, 884 S.W.2d 596, 600 (1994).

Appellant argues that only two of the five linking factors in Mings, supra, are applicable to him: drugs were found on the same side of the car as he was seated, concealed under a floor mat under his feet, and he acted suspiciously by giving a false name to the officers. Appellant asserts that these factors are easily explained and are as consistent with innocence as guilt. Appellant cites to the well-known rule of law that constructivepossession may be established by circumstantial evidence, but when such evidence alone is relied on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. See Knight v. State, 51 Ark. App. 60, 908 S.W.2d 664 (1995).

The State responds that while there are not a great number of factors to link appellant to the cocaine found in the vehicle, the weight of those factors, and not the number, dictate whether there is sufficient evidence to convict. The State recites (1) the visual observation of appellant bending over as if to put something down on the passenger floor board, (2) appellant giving false names, and (3) the close proximity of a substantial quantity of pre-packaged drugs under appellant's feet. The State argues that these factors combine to provide sufficient evidence to support the trial judge's conclusion that appellant had possession of the cocaine.

Our analysis begins with the Mings factors, which offer guidance in constructive possession cases. However, the mere presence of some of these enumerated factors does not relieve our obligation to determine whether a nexus between the accused and the contraband has been established. Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517 (2002). The link or nexus must be sufficient to raise a reasonable inference of knowledge of the contraband. See id. We hold that sufficient evidence exists in this case.

In the present appeal, the State did not exclude every possibility of innocence, but it excluded every other reasonable hypothesis consistent with innocence. Appellant was seen bending over an area, just prior to an encounter with the police, in close proximity to a substantial quantity of pre-packaged cocaine. Appellant lied about his identity, whichresulted in appellant's brother being arrested in his stead. Appellant was admittedly under the influence when he was questioned by the officer, and he possessed $60 in his left shoe. None of these facts, viewed in isolation, would necessarily support a conviction, but together they provide sufficient evidence from which the trial judge could conclude that appellant constructively possessed the cocaine. See also Haygood, et al. v. State, 34 Ark. App. 161, 807 S.W.2d 470 (1991) (holding that evidence was sufficient to link all three occupants of automobile to cocaine found in gym bag in automobile and, thus, supported convictions for possession with intent to deliver; gym bag was on back seat directly beside one passenger, front seat passenger was wearing medallion that also contained cocaine, and driver exercised dominion and control over vehicle, did not take direct route to his destination, and had immediate access to contraband in passenger area of automobile). But compare Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999) (holding evidence insufficient and reversing conviction where appellant was a right rear passenger in his friend's car occupied by four persons when the vehicle was stopped, the cocaine was not in plain view, was not under appellant's exclusive control, and was found on back of driver's seat pouch in front of the left rear passenger, there was no testimony that appellant acted suspiciously, and, there was no evidence of any contraband found on appellant's person). Viewing the evidence, as we must, in the light most favorable to the State, we hold that there is sufficient evidence to sustain this conviction.

Affirmed.

Bird and Griffen, JJ., agree.

1 There were additional arguments about an inculpatory statement made by appellant to Mabry. However, the trial judge decided sua sponte to suppress the statement for violation of appellant's constitutional rights. The trial judge declared that he would not consider the alleged statement for any purpose. For this reason, we do not set forth this testimony, and we do not consider it for sufficiency purposes.