Timothy Alan Ray v. State of Arkansas

ARKANSAS COURT OF APPEALS

TERRY CRABTREE, JUDGE

NOT DESIGNATED FOR PUBLICATION

DIVISION III

TIMOTHY ALAN RAY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-317

February 12, 2003

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT

[NO. CR 2001-124]

HONORABLE LANCE LAMAR HANSHAW

JUDGE

AFFIRMED

The appellant, Timothy Alan Ray, was charged with possession of a controlled substance (methamphetamine) and possession of drug paraphernalia. In a bench trial, appellant was found guilty only of possession of drug paraphernalia, a class C felony, for which he was sentenced to a term of ten years in prison. He argues on appeal that the evidence is insufficient to sustain the verdict. We disagree and affirm.

The test for determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Reinert v. State, 348 Ark. 1, 71 S.W.3d 52 (2002). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). On appeal, we review the evidence in the light

most favorable to the State and consider only the evidence that supports the verdict. Id.

Arkansas Code Annotated section 5-64-403(c)(1) (Repl. 1997) provides:

(A)(i) It is unlawful for any person to use, or possess with intent to use, drug paraphernalia to ... ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of subchapters 1 - 6 of this chapter.

(ii) A violation of subdivision (c)(1)(A)(i) is a Class A misdemeanor.

(B) Any person who violates this section in the course of and in furtherance of a felony violation of subchapters 1 - 6 of this chapter is guilty of a Class C felony.

Cabot Police Officer Jack Fitzhugh stopped a vehicle appellant was driving at 1:30 a.m. on March 19, 2000, because it had a headlight and taillight that were not working properly. The vehicle was a late-model 280 Z that was owned by appellant's daughter. A woman named Cleo Wilhite was a passenger in the car. Officer Fitzhugh called a canine unit for assistance, and the dog alerted to the passenger door. There, on the floor board, was a five-gallon bucket that had ice and water in it. A pair of hemostats were floating on top of an empty ice bag inside the bucket. On the console, nearer the passenger seat, was an eyeglass case. Inside the case there were two, tinfoil "spoons" and a white tube made from a disassembled ink pen. Officer Fitzhugh testified that the tinfoil spoons were typically used to burn and thereby ingest methamphetamine. He said that a tube, like the one found, was used to snort contraband. Methamphetamine residue was found on the spoons and the tube. There was testimony that hemostats were used to hold a marijuana cigarette and that the end of this pair of hemostats was discolored.

In addition to those items, a plastic bag containing methamphetamine was found in Ms. Wilhite's purse. A hypodermic needle was found in her make-up bag. Also, a plastic bag containing methamphetamine was found in the area between the passenger seat and door.

Ms. Wilhite testified for the State. She had pled guilty to possession of a controlled substance and possession of drug paraphernalia in connection with the contraband found in the stop. She testified that she and appellant were living together at the time and that they had been to a friend's house in Vilonia that night where appellant had "chopped up a line of dope for me." She said that appellant had smoked some as well. Ms. Wilhite testified that appellant left in the car for several hours while she remained at their friend's house playing games on the computer. She said that her purse had been in the car while appellant was gone. She related that they had first been stopped by the police in Vilonia on their way home to Cabot that night. She said that, during that stop, appellant had handed her the eyeglass case and told her to "do something with it" because he said it had "foil" in it, which she said he used for smoking methamphetamine. Ms. Wilhite further testified that appellant later confessed to her that he had placed the drugs in her purse. She also said that she did not know anything about the drugs found between the passenger seat and door.

After hearing the evidence, the trial court found appellant guilty of possessing drug paraphernalia with regard to the hemostats and the items found in the eyeglass case. Appellant was acquitted of possession of methamphetamine.

Appellant argues that the evidence is insufficient because he was not the only personin the vehicle and because none of the items of contraband were found in his immediate possession. We disagree.

It is not necessary for the State to prove literal, physical possession of contraband in order to prove possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). Constructive possession, which is the control or right to control contraband, is sufficient. Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990). In order to prove constructive possession, the State must establish beyond a reasonable doubt that: (1) the defendant exercised care, control, and management over the contraband; and (2) that the accused knew the matter possessed was contraband. Hughes v. State, 74 Ark. App. 126, 46 S.W.3d 538 (2001). Constructive possession can be implied when the contraband is in the joint control of the accused and another person. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). However, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. There must be some other factor linking the accused to the contraband. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Clearly, Ms. Wilhite's testimony was sufficient to provide the necessary link between appellant and the paraphernalia.

Appellant argues further, however, that Ms. Wilhite was an accomplice and that the State failed to offer sufficient evidence to corroborate her testimony. Appellant is correct in asserting that a person cannot be convicted of a felony based upon the testimony of an accomplice, unless that testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense. Ark. Code Ann. § 16-89-111(e)(1) (1987). The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Martin v. State, 346 Ark. App. 198, 57 S.W.3d 136 (2001). It must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with the crime and not directed toward corroborating the accomplice's testimony. Id. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). Circumstantial evidence may be used to support accomplice testimony. Jones v. State, 349 Ark.331,78 S.W.3d 104 (2002). Where circumstantial evidence is used to support accomplice testimony, all facts of evidence can be considered to constitute a chain sufficient to present a question for resolution by the trier of fact as to the adequacy of corroboration, and we will not look to see whether every other reasonable hypothesis but that of guilt has been excluded. Id.

Here, the appellant exercised dominion and control over the vehicle in which the contraband was found. The officer described the interior of the vehicle as being "cramped," and the eyeglass case and the hemostats were located in areas in close proximity and immediately accessible to the appellant. In addition, the officer testified that when he stopped the vehicle appellant immediately got out and met him, which he said was suspicious, particularly in the cool weather that evening. This evidence was sufficient to corroborate the accomplice's testimony.

Appellant also argues that, with regard to the hemostats, the evidence was insufficientto consider its possession a felony under Ark. Code Ann. § 5-64-403(c)(1)(B). Appellant concedes, however, that the evidence is sufficient to support a conviction as a felony for possessing the items found in the eyeglass case. Because we have determined that there is sufficient evidence to support appellant's conviction for possessing the items found in the case, we need not address appellant's argument with respect to the hemostats.

Affirmed.

Pittman and Robbins, JJ., agree.