Decorrie Washington v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

DECORRIE WASHINGTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-90

September 10, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 02-222]

HONORABLE JOHN W. LANGSTON, JUDGE

AFFIRMED

Terry Crabtree, Judge

In a bench trial, the appellant, Decorrie Washington, was found guilty of being a felon in possession of a firearm for which he was sentenced as an habitual offender to a term of twelve years in prison. As his only issue on appeal, appellant contends that the evidence is insufficient to support a finding that he was in possession of a firearm. We affirm.

When the sufficiency of the evidence is challenged, the appellate court considers only that evidence which supports the guilty verdict, and the test is whether the verdict is supported by substantial evidence. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). Substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Id. Circumstantial evidence can constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003).

Actual or physical possession is not required to prove guilt of possession; constructive possession, which is control or the right to control the contraband, is sufficient. Gwatney v. State, 75 Ark. App. 331, 57 S.W.3d 247 (2001). In Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994), the supreme court observed that:

Constructive possession can be implied when the drugs are in the joint control of the accused and another. 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 drugs. Osborne v. State, 278 Ark. at 50, 643 S.W.2d at 253. 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 or was sitting in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion and control over it; and (5) whether the accused acted suspiciously before or during the arrest.

Id. at 207, 884 S.W.2d at 600.

The State's evidence was presented primarily through the testimony of Scott Tudor, a deputy with the Pulaski County Sheriff's Office. According to Tudor, early on October 27, 2001, he and other officers responded to a disturbance at the 145th Street Social Club, which is near Interstate 530. Afterwards, they stayed in the area in case there was more trouble, parking at an elementary school where they had a clear line of vision and easy access to 145th Street. At around 4:30 a.m., Tudor heard a single gunshot, followed by a louder boom that sounded as if it had come from a shotgun. He then heard five or six more shots, fired rapidly, from what he believed was a pistol. Tudor said that the first shots seemed to have been fired from a stationary position but that there was movement with the other shots and that the gunfire seemed to be moving closer to his position. Tudor drove in the direction of the shots and immediately encountered a white Suburban and a white Oldsmobile. He said that his belief that the shots were moving towards him corresponded with the appearance of the vehicles.

He caught up with the vehicles on the interstate. He said that the vehicles were driving side-by-side, that they were traveling forty miles an hour in a seventy m.p.h. zone, and that they were using their brakes to keep pace with one another. He observed the occupants of the vehicles gesturing towards each other and said that it was readily apparent that there was an argument going on between the occupants of the two vehicles.

Tudor initiated his lights to make a traffic stop of the Suburban, while another officer stopped the Oldsmobile. He said that the Suburban had slowed to under forty m.p.h. and that it took well over a mile for the vehicle to finally come to a stop. The delay was such that he had contemplated calling in a vehicle pursuit because of the vehicle's initial failure to stop. Just before the stop, Tudor saw movement in the vehicle but he could not see what the two occupants of the vehicle were doing.

Based on the gunfire, Tudor initiated a "felony stop procedure" where, armed with a shotgun, he stayed beside the patrol car and ordered the driver to come out to him. He said that he had to repeat the order several times before the driver, the appellant, exited the vehicle. He then ordered appellant to show his hands. Tudor said that he had to ask this of appellant several times and that appellant gave him "mean looks" before eventually complying. He and another officer removed the passenger from the vehicle.

Three weapons were found upon inspection of the vehicle. Immediately upon opening the door, Tudor saw a Jennings nine millimeter handgun on the floor protruding from under the middle of the back seat. He said that the Suburban had bucket seats and that the weapon was sitting butt forward within easy access to either front-seat passenger but that it was closer to the passenger side "by the slightest of margins." It contained nine rounds and one spent shell casing that had failed to eject. A .22 caliber Ruger semi-automatic pistol was beside the nine millimeter, closer to the driver's side. It was loaded with hollow point cartridges. Further behind the other weapons was a Smith and Wesson .22 caliber semi-automatic pistol. It was fully loaded and the safety was off.

Appellant argues that he was a joint occupant of the vehicle and that there were no additional factors linking him to the weapons inside. We find no merit in this argument. The evidence shows that appellant, as the driver, exercised dominion and control over the vehicle and that the weapons were all in close proximity to him, and two of them were in plain view. One of the handguns, the Ruger, was closer to the driver's side, and the nine millimeter was accessible to him, although positioned slightly nearer the passenger side. In addition, the circumstances before and after the stop must also be considered. Gunshots had been fired from a moving vehicle, and the trier of fact could conclude that the Suburban and Oldsmobile were involved in that incident since they were spotted immediately after the shots were fired and came from the direction from whence the shots were heard. That inference is bolstered by the way the vehicles were being driven on the interstate and the testimony that the occupants engaged in some sort of disagreement. Moreover, the officer detected movement in the vehicle just prior to the stop, and appellant acted suspiciously by both delaying the stop and his initial refusal to exit the vehicle and to comply with the officer's request to show his hands. When all of the evidence is considered, there is substantial evidence to support the finding of guilt.

Affirmed.

Hart and Roaf, JJ., agree.