Jana Shaban v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

JANA SHABAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-777

April 9, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION [CR 2001-3286]

HONORABLE JOHN W.

LANGSTON, CIRCUIT JUDGE

AFFIRMED

Appellant, Jana Shaban, was convicted in a bench trial of possession of methamphetamine, possession of drug paraphernalia, and possession of marijuana. She was sentenced to a total of ten years in the Arkansas Department of Correction. On appeal, she argues (1) that the trial court erred in denying her motion to suppress because she did not give consent for her vehicle to be searched and (2) that the State failed to prove that she had constructive possession of the contraband found in her vehicle. We find no error and affirm her convictions.

Although her second point on appeal, we must first address Shaban's contention that the trial court erred in denying her motion for directed verdict on all of the charges because the State failed to prove that she constructively possessed the contraband found in her car. Preservation of Shaban's right against double jeopardy requires that we consider the challenge to the sufficiency of the evidence before we consider alleged trial error, even if the issue was not presented as the first issue on appeal. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). A motion for directed verdict is a challenge to the sufficiency of the evidence. Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001). In a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State and affirm a conviction if there is substantial evidence to support it; substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Gabrion v. State, 73 Ark. App. 170, 42 S.W.3d 572 (2001).

In Dodson v. State, 341 Ark. 41, 47, 14 S.W.3d 489, 493 (2000), our supreme court stated:

It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Possession of drugs can be proved by constructive possession. Although constructive possession can be implied when the drugs are in the joint control of the accused and another, 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 drugs:

Other factors to be considered in cases involving automobiles occupied by more than one person 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.

In the present case, Shaban argues that the most compelling link to the contraband was not her but rather her passenger, Danny Ray Carroll. At trial, Shaban entered into evidence the recipe for manufacturing methamphetamine that was found in Carroll's pocketon August 11, 2001. She argues that some of the items listed in the recipe were found in her car; therefore, they must have belonged to Carroll, not her.

However, in reviewing the list of additional factors to be considered when determining constructive possession of drugs in a vehicle, we disagree with Shaban's contention that the trial judge's denial of her motion to dismiss was in error. Shaban was the owner of the vehicle, and she acted suspiciously before the arrest by giving the officer a false name. Additionally, the contraband found in the trunk was with Shaban's property, namely her cleaning supplies. We hold that there was sufficient evidence of constructive possession to support Shaban's convictions.

We next address Shaban's argument that the trial court erred in denying her motion to suppress the contraband found in her car during a warrantless search. At the hearing on the motion to suppress, Deborah Senter, an officer for UAMS, testified that on August 11, 2001, she noticed a white Monte Carlo illegally parked in the ambulance unloading area for the emergency room. When she ran the license plate, she discovered that the tags were fictitious. Officer Senter made contact with Shaban, who gave her name as Jackie Brashear but stated that the vehicle belonged to her. When asked, Shaban said that she had no driver's license, no proof of insurance, and no vehicle registration. Officer Senter testified that she wrote tickets for Jackie Brashear for no insurance, no registration, no driver's license, and fictitious tags. Senter than asked Shaban if she could inventory the car because she was going to have it towed. Senter testifed that Shaban verbally consented to the search and that another UAMS officer, Officer Edwin Moore, witnessed the verbal consent. Officer Senter then found a small box with gray duct tape on it in the back seat floorboard that containedsyringes, a yellow or white powdery substance, and a cigarette lighter. When she opened the trunk, she found a jar with aluminum foil on top of it, a trash bag containing matches, and some cleaning supplies. The State rested after Officer Senter's testimony.

Shaban called Officer Ledbetter, who testified that he asked Shaban to sign a consent to search form and that she declined. He said that she asked him what would happen if she did not sign the form, and he told her that the vehicle would not be searched. Officer Moore testified that Officer Senter advised Shaban that the vehicle was illegally parked and that Shaban said the vehicle belonged to her.

Shaban testified that although she knew that she had parked in a no parking zone, there was a passenger in the vehicle who could have moved it out of the way. She said that when she was asked if the car could be searched, she said no, but that the officers proceeded with the search anyway. She said that the officers searched for thirty minutes to an hour and had already opened the truck of her car before they requested that she sign a consent-to-search form. Shaban also denied that she was given citations for any infractions.

The trial judge denied Shaban's motion to suppress the evidence found during the search of her car. On appeal, Shaban argues that this was in error because she never gave her consent to search and thus the warrantless search was in violation of her Fourth Amendment rights.

In reviewing the denial of a motion to suppress evidence, the appellate court makes an independent determination based upon the totality of the circumstances, and the appellate court will not reverse that decision unless it is clearly erroneous or clearly against the preponderance of the evidence. Lobania v. State, 60 Ark. App. 135, 959 S.W.2d 72 (1998). All warrantless searches are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant; consent is a justification for a warrantless search. Id. It is the State's burden to prove that consent was freely and voluntarily given and that there was no actual or implied duress or coercion. Id. This court defers to the superior position of the trial judge in matters of credibility; conflicts in testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since she is the person most interested in the outcome of the proceedings. Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001).

In the present case, there was conflicting testimony about whether or not Shaban gave verbal consent for the search of her car. Officer Senter testified that Shaban gave verbal consent for the search; Shaban denied giving consent. The trial judge resolved the conflicting testimony in favor of the State; such resolution was clearly within his province. We cannot say that the trial judge's denial of Shaban's motion to suppress was clearly erroneous or clearly against the preponderance of the evidence.

Affirmed.

Griffen and Roaf, JJ., agree.