Calvin Burnside v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CALVIN BURNSIDE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-758

February 25, 2004

APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT

[NO. CR02-143]

HON. PHILLIP T. WHITEAKER,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Lonoke County jury found Calvin Burnside guilty of possession of marijuana with intent to deliver, and he was sentenced to ten years' imprisonment. On appeal, appellant argues that the trial court erred in denying his motion for a directed verdict. We affirm.

Officer Farris McClain testified that on March 24, 2002, while on patrol at around 11:00 p.m., he saw a man quickly get into the back seat of a green Saturn in the Exxon parking lot. As the car drove away, McClain noticed that the left rear tail light was not operating, so he initiated a traffic stop. Appellant, who was driving, got out of the car and met the officer halfway between the Saturn and the patrol car. McClain asked him for identification and proof of insurance and registration. Appellant identified himself as Terreance Jefferson. Because he had no ID, McClain ran the name and birth date appellant provided through A.C.I.C. Appellant, a black male, did not match the description for Terreance Jefferson, who was a white male in Fayetteville. Appellant then gave a different birth date, and there was no record of that person at all. McClain testified that after appellant had given false information four or five times, appellant finally admitted that his driver's license was suspended. McClain stated that when he attempted to make contact with the two passengers, he smelled a strong odor of marijuana as he approached the car. McClain discovered that one of the passengers had a suspended driver's license and the other had active warrants. According to McClain, appellant stated that the car belonged to his girlfriend. McClain testified that appellant appeared nervous and, because he was afraid appellant might flee, he instructed appellant to get back into his car and waited for backup. Because the car would have to be towed according to departmental policy, McClain and the backup officer did an inventory search. In the trunk, McClain saw a large paper bag that was open. Inside of it was a white plastic bag containing over forty pounds of marijuana.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Id. On appeal, this court need only look at that evidence most favorable to the State as appellee and consider only that testimony that supports the verdict. See Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).

It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999). Possession of drugs can be proved by constructive possession. Id. Constructive possession requires the State to prove beyond a reasonable doubt that (1) the defendant exercised care, control, and management over the contraband, and (2) the accused knew the matter possessed was contraband. Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000). Although constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy alone is not sufficient to establish possession. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Other facts that sufficiently link an accused to contraband found in a vehicle jointly occupied by more than one person include: (1) whether the contraband was found in plain view; (2) whether the contraband was found on the defendant's person or with his personal effects; (3) whether the contraband was found on the same side of the car seat as the defendant or in immediate proximity to him; (4) whether the accused owned the vehicle in question or exercised dominion and control over it; (5) whether the accused acted suspiciously before or during the arrest. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). In addition to the five factors listed above, our supreme court has also considered the improbability that anyone other than the occupants of the vehicle placed the contraband in the vehicle, and the improbable nature of the accused's explanation for his journey. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995).

Appellant argues that there was insufficient evidence that he had knowledge that the contraband was in the trunk of the car. He contends that, of the five factors, it could perhaps be said that he had control over the vehicle, which he contended was owned by his girlfriend. In addition, he argues that there was a high probability that someone else placed the contraband inside the trunk.

Appellant relies on Boston, supra. In that case, Boston, who was following his cousin and her boyfriend in a separate car, was stopped by officers. After determining that Boston had been drinking and had no proof of insurance, the officers had to have Boston's car towed. While doing an inventory search, officers found in the trunk of his car a suitcase containing five pounds of marijuana. This court determined that Boston owned and occupied the vehicle where the contraband was found; he had exclusive access to the contraband because he alone had the key to the trunk; and he had consented to the boyfriend's placing the suitcase in his trunk. Despite these factors, the court found no evidence from which the jury could have reasonably inferred that Boston knew that the suitcase contained marijuana. The court in Boston stated:

The State would essentially have us remove the knowledge requirement from the constructive possession analysis by holding that when a driver agrees to carry a parcel that belongs to another person in his car, and the parcel is later found to contain contraband, this conduct is sufficient to demonstrate the driver knows the container holds contraband. We decline to so hold. While this conduct may be sufficient to demonstrate control of the container, it is not sufficient to demonstrate knowledge of the contents of the container, and our case law clearly requires the State must prove both elements to show constructive possession. 

69 Ark. App. at 160, 12 S.W.3d 248-49.

Boston's conviction was thus reversed and dismissed. The case at bar is distinguishable from Boston. The court in Boston noted that the State did not dispute that the marijuana was well-wrapped inside several bags and the State made no assertion that any odor emanated from the suitcase. Here, McClain's testimony indicates that the bag containing the marijuana was open and that the odor was so strong that he smelled it upon approaching the car.

Although the first three factors are not present, the last two factors should be considered. Appellant exercised control over the vehicle by driving it, even assuming that it belonged to his girlfriend as he asserted. Furthermore, appellant was acting suspiciously by giving false information to McClain. See Gamble v. State, ___ Ark. App. ___, 105 S.W.3d 801 (2003). In addition to these factors, McClain smelled the marijuana upon approaching the vehicle, which tends to establish that appellant had knowledge of the presence of the contraband. See Miller, supra. It is the knowledge of the existence of the contraband that provides substantial evidence of constructive possession. Id.

Affirmed.

Pittman and Baker, JJ., agree.