Michael Reeves v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CACR02-125

December 17, 2003

MICHAEL REEVES AN APPEAL FROM DESHA

APPELLANT COUNTY CIRCUIT COURT

[CR01-25-2A]

V. HON. SAM POPE, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Michael Reeves appeals from his conviction for possession of a firearm by certain persons. He argues that the State did not present sufficient evidence to show that he had possession of the firearm that was seized. We disagree and affirm appellant's conviction.

The firearm at issue in this case was obtained as a result of the execution of a search warrant on appellant's property. On November 27, 2000, Roger McLemore, an investigator with the Arkansas State Police, and two other police officers, executed a search warrant on the residence of appellant and LaMonica McKenzie. Appellant had been arrested the day before the search and was incarcerated at the time of the search. In appellant's bedroom, the officers found a set of body armor and a hunting vest with twelve-gauge short brass shotgun shells attached, all of which appellant subsequently admitted belonged to him.

Because the warrant authorized a search of the residence and all vehicles on the property, McLemore attempted to search a blue Pontiac Bonneville that was located approximately forty feet from appellant's residence. The vehicle was locked, and McKenzie did not have the keys to the vehicle. McLemore used a hammer and screwdriver to gain access to the trunk. Inside the trunk of the car, McLemore found a twelve-gauge Browning shotgun, more short brass shells, and more body armor.

Appellant, a convicted felon, was charged with several offenses, but the only conviction that he appeals is his conviction for possession of a firearm by certain persons. At trial, appellant denied that he had ever seen the firearm in question before, but admitted that he had recently received some guns from an uncle in Chicago who had died, including two or three twelve-gauge shotguns. Appellant further admitted that he transported the guns, shells, and body armor from Chicago. However, he testified that he did not place the body armor in the trunk of the Bonneville.

Appellant did not have possession of the keys to the Bonneville when he was arrested on November 26. At trial, he maintained that he still did not have the keys to the vehicle. However, he admitted that the Bonneville belonged to him and testified that the keys should have been in the ignition. He stated that he had wrecked the car approximately two months before and that he had not driven the vehicle since it had been wrecked. Appellant further testified that Amos James, his cousin, occasionally used the Bonneville to hunt.

James testified that he lived "off and on" with appellant and had been at appellant's house the day before or the day after Thanksgiving, which occurred on November 23. James stated that he had a twelve-gauge shotgun in the trunk of a blue Bonneville and had used the gun to squirrel hunt that morning. He testified that the gun had belonged to his father and now belonged to him since his father had died. James stated that he put the gun in the trunk, and that he told McKenzie that he put the keys back into the car.

Ronnie Bearden, a police officer who questioned James about the weapon, testified that James told him that he (James) had a twelve-gauge pump shotgun and had taken the car keys with him but had returned the keys to appellant.

During the trial, the circuit court denied appellant's motions challenging the sufficiency of the evidence. The jury found appellant guilty of being a felon in possession of a firearm. He was sentenced to serve sixty months in prison and was ordered to pay a $7,000 fine. This appeal followed.

Appellant's sole argument on appeal is that the evidence was not sufficient to support his conviction because the State failed to prove that he had actual or constructive possession of the firearm. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). On appeal, we review the evidence in a light most favorable to the State, as appellee, and affirm if substantial evidence supports the jury verdict; only evidence supporting the guilty verdict need be considered. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other with reasonable certainty beyond mere suspicion or conjecture. Id. We hold that the trial court did not err in denying appellant's motions for a directed verdict.

Arkansas Code Annotated section 5-73-103(a)(1) (Supp. 2003) provides that no person shall possess or own any firearm who has been convicted of a felony. It was not disputed that appellant is a convicted felon who has a prior conviction for aggravated assault. Therefore, the sole issue on appeal is whether the State proved that appellant owned or possessed a firearm.

Appellant maintains that, in order for the State to prove constructive possession, the State had to show that he had dominion and control over the vehicle and was required to demonstrate at least a reasonable inference that he had knowledge of the contraband. See Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517 (2002) (requiring a reasonable inference of the knowledge of the contraband); Boston v. State, 69 Ark. App. 155, 112 S.W.3d 245 (2000) (reversing where contraband was found in the suitcase of the defendant's car, but the State failed to demonstrate that the defendant had knowledge of the contents of the suitcase). Appellant maintains that the State failed to prove that he had any knowledge that the shotgun was in the trunk of his car. He notes that he was not present when the vehicle was searched, the keys were not found on his person or at his home, and there was no evidence that he had recently driven the vehicle or had any recent contact with the vehicle.

However, appellant's argument must fail. First, it is not necessary for the State to prove literal physical possession of contraband in order to prove possession. See Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). The State can prove that appellant had constructive possession of contraband by proving that he controlled the contraband or had the right to control the contraband. Id. (affirming simultaneous possession charge where cocaine was found in plastic bag sticking out above sun visor on driver's side and the handgun was found underneath rear passenger-side floor mat of the car, and the defendant was the sole occupant of borrowed car that he was driving); Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003) (affirming simultaneous possession charge where firearm was found in the defendant's kitchen next to items used to manufacture methamphetamine).

Second, appellant is mistaken in asserting that the State was required to show that he had knowledge of the contraband, because that element of proof is only required in joint possession cases, such as the cases upon which he relies. See Polk v. State, supra (stating that a single occupant in a borrowed car or a car owned by another person is subject only to the general inquiry for constructive possession and does not benefit from the increased inquiry afforded to those in a joint occupancy situation). Appellant did not allege that this case involved joint possession and did not object below when the trial court made no finding of the additional linking factors required in a joint possession case.

The following evidence, viewed in the light most favorable to the State, supports appellant's conviction. First, the fact that appellant was not physically present does not preclude a finding of constructive possession. Darrough v. State, 330 Ark. 808, 957 S.W.2d 707 (1997). Second, although appellant was in jail when the search was executed on November 27, he had only been jailed the day before the search, and prior to that time, had undisputed ownership and control of the vehicle. Appellant had recently received two or three twelve-gauge shotguns that he had transported from Chicago. Finally, additional body armor, a hunting vest, and similar twelve-gauge shells were found in appellant's bedroom, to which he admitted ownership.

While James testified that the gun belonged to him, the jury was not required to find that James's testimony was credible. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). In fact, James's testimony that he returned the car keys to appellant contradicted appellant's testimony that he did not have the keys. James's testimony also conflicted with Officer Bearden's testimony, because James asserted that he told McKenzie that he left the keys in the ignition. Therefore, the jury could have found that James's assertion that the shotgun belonged to him was not credible.

Affirmed.

Gladwin and Roaf, JJ., agree.