James Lumpkin v. State of Arkansas

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ar04-039

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JAMES LUMPKIN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-39

October 6, 2004

APPEAL FROM THE PHILLIPS

COUNTY CIRCUIT COURT

[CR-01-49]

HONORABLE HARVEY LEE YATES,

CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

On June 13, 2001, a judgment was entered against appellant, James Lumpkin, in an underlying case involving possession of methamphetamine. He received a suspended imposition of sentence for sixty months, "to begin upon release from A.D.C.," where he was confined for other methamphetamine offenses. As part of the conditions of the suspension, appellant was not to commit an offense punishable by imprisonment, and he was not to consume, use, possess, carry, sell, distribute or otherwise handle any controlled substance without a valid prescription from a qualified physician. On March 13, 2003, during the period of the suspension, appellant was arrested and charged with possession of drug paraphernalia with intent to manufacture methamphetamine and possession of ephedrine. The State filed a petition to revoke his suspended sentence. Following a hearing, the trial court granted the petition to revoke and sentenced appellant to ten years in the Arkansas Department of Correction. We affirm.

At the revocation hearing, Charles Norman of the Phillips County Sheriff's Office and the First Judicial Task Force, testified that he had contact with appellant on March 13, 2003. He explained that the sheriff's office was executing a search warrant at the trailer of a man named Charles Harris; that he and Deputy Russell were inside the residence gathering evidence; that they were advised by another deputy that a vehicle had pulled up into the front yard; and that there were items in the vehicle that they needed to see.

Norman testified that the vehicle was a green sport-utility vehicle and that three people were in the vehicle, Will Copeland, appellant, and Kevin Stafford. He said that he believed that the vehicle belonged to Copeland's parents, and that appellant was a passenger in the backseat of the vehicle. Norman stated that there were Wal-Mart and Food Giant bags containing some plastic tubing and numerous cans of ether and starter fluid in the vehicle. He said that there were also several lithium batteries, some of which were partially stripped, and two sets of pliers on the floorboard. He explained that the plastic tubing and lithium batteries that were in a Wal-Mart bag were found in the backseat of the vehicle and that those items would be easily observed by whoever was sitting in the back of the vehicle.

He said that there were a total of eight cans of starter fluid in the vehicle, with one bag of them in the front and one bag in the back. He also stated that 84.5 grams of a white substance that field-tested positive for ephedrine was found in the glove compartment. He explained that it would take close to 1000 pills to make 84.5 grams. He said that they also found two pitchers, aluminum foil, and Dremel tool parts in the vehicle. Norman explained how these items are used to manufacture methamphetamine. In addition Norman testified that Kevin Stafford, another passenger in the vehicle, was also on parole at the time.

On cross-examination, Norman acknowledged that the glove compartment, where the ephedrine was found, had a door on it; that you could not see through the Wal-Mart and Food Giant bags, which contained several of the items; that the majority of the items recovered from the vehicle were found in the front portion of the vehicle; and that the items that were found in the back of the vehicle were additional lithium batteries, Dremel tool parts, and plastic tubing. He acknowledged that he did not know how long appellant had been in the vehicle before it arrived at the residence where the search was in progress; that it was dark when the vehicle arrived, which he acknowledged was a time when you cannot see as well as in the daytime; that he had been specially trained to know how all of these items are used in manufacturing methamphetamine; that the evidence in the vehicle had been discovered before he was called from the residence; and that it was his understanding that appellant was on the passenger side of the vehicle, but he had no personal knowledge of same.

Appellant testified that he was in the vehicle on the date in question; that the other persons in the vehicle had picked him up at Harris's trailer and taken him to Wal-Mart to get an air filter and a fuel filter to fix a car that belonged to a girl named Tiffany Hadder; and that he also got a pack of cigarettes. He said that he did not search the vehicle before he got in it and that at no time did he possess the lithium batteries, the ephedrine, the starter fluid, the tubing, or the other items found in the vehicle.

On cross-examination, appellant denied having any knowledge about how to manufacture methamphetamine, but he acknowledged having "done" methamphetamine, and having been convicted on meth charges in the past. He testified that he did not notice the items in the vehicle; that he did not know the other people in the vehicle; that he did not know that Kevin Stafford was on parole; and that Tiffany told him, "My cousin's pulling up out here," and asked him if he would ask for a ride to go get her fuel and air filters for her car.

Appellant acknowledged that he knew Charles Harris, the person whose residence they pulled up to while the police were searching it. He also explained that he did not have any receipts for auto parts because Wal-Mart did not have the air filter and fuel filter that he needed, so he just bought the cigarettes. He said that the other people in the car did not buy the items that were found in the Wal-Mart sacks while he was with them in Wal-Mart. He also said that they did not take the lithium strips off the batteries while he was in the vehicle. He stated that he had been at the trailer for about forty-five minutes before he left in the vehicle to go to Wal-Mart; that he did not notice a bag of methamphetamine on the coffee table at the trailer; that he did not notice the syringes and smoking devices lying all over the trailer; and that he had never noticed a large amount of traffic to and from the trailer. He said that Charlie [Harris] asked him to come over and look at Hadder's car with him and that she would pay him to fix it.

The trial court granted the State's petition to revoke, concluding that the State had met its burden of proving that appellant possessed drug paraphernalia and also that he constructively possessed ephedrine, which violated the conditions of his probation. Appellant was sentenced to ten years in the Arkansas Department of Correction, to run consecutively with any sentence that he was currently serving.

For his sole point of appeal, appellant contends that it was not possible to conclude from the evidence presented in this case that he was in constructive possession of the items that were found in the vehicle. He argues that the majority of the items recovered from the vehicle were located in the front portion of the vehicle, including the ephedrine that was found in the glove compartment; that the items found in the backseat where he was located were batteries, tool parts, starter-fluid cans, and tubing; that the tubing and batteries were in Wal-Mart bags and thus not visible; that the arrest took place at night, making it even harder to see items in the interior of the vehicle; and that the pitcher and aluminum foil were the only items that would have been readily available or accessible to him.

To revoke probation or a suspended sentence, the burden is on the State to prove the violation of a condition of probation or suspended sentence by a preponderance of the evidence. Ark. Code Ann. ยง 5-4-309(d) (Supp. 2003); Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). On appellate review, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Bradley, supra. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Id. Thus, the burden on the State is not as great in a revocation hearing. Id. Moreover, the State need only prove that appellant violated any one condition of his probation in order to support revocation. Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003). Since determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge's superior position. Bradley, supra.

This court has consistently held that possession of contraband may be proved by constructive possession, which is the control or right to control the contraband; thus, it is not necessary for the State to prove actual physical possession of the contraband. Jones v. State, ____ Ark. ____, ____ S.W.3d ____ (January 29, 2004). To prove constructive possession, the State must establish that the defendant exercised care, control, and management over the contraband. Id. However, possession may be implied when the contraband is found in a place that is immediately and exclusively accessible to the accused and subject to his dominion and control. Id. Similarly, constructive possession may be implied when the contraband is 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. Id. There must be some additional factor to link the accused with the controlled substance. Id. In other words, there must be some evidence that the accused had knowledge of the presence of the contraband in the vehicle. Id. 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; (5) whether the accused acted suspiciously before or during the arrest. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002).

The trier of fact is not required to believe all or any part of a defendant's statement. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003). Moreover, the fact finder need not lay aside his common sense in evaluating the ordinary affairs of life and may infer a defendant's guilt from improbable explanations of incriminating conduct. Id.

Here, at least a portion of the items recovered from the vehicle was located in the back seat where appellant was seated. Those items were lithium batteries, tool parts, starter-fluid cans, tubing, a pitcher, and aluminum foil. While appellant contends that the items were in Wal-Mart bags, and thus not visible, and that the arrest took place at night, making it even harder to see items in the interior of the vehicle, Officer Norman testified that the items in the backseat of the vehicle would be easily observed by whoever was sitting in the back of the vehicle. One of the accepted factors to be considered in linking a defendant with contraband in a jointly occupied vehicle is whether the contraband was in plain view. Moreover, because at least some of the items were in the backseat, the factor of being in close proximity to the accused is also satisfied. In addition, appellant admitted going to Wal-Mart and, as mentioned previously, some of the items were contained in Wal-Mart sacks. The trial court did not have to believe appellant's version of events that the items were not purchased when he was in Wal-Mart, especially in light of the fact that the items were still in the Wal-Mart bags when the arrest was made. Moreover, appellant's version of events was that he went to Wal-Mart to buy air and fuel filters and that the reason he did not have those items when he was arrested was because they were not available at Wal-Mart. Finally, the initial police search was underway at the Harris trailer when the vehicle that appellant occupied arrived on the scene. Appellant acknowledged spending forty-five minutes at the Harris trailer before going to Wal-Mart, yet he denied seeing syringes, smoking devices, and a bag of methamphetamine on the coffee table in the trailer. Again, the trial court, as fact finder, did not have to lay aside its common sense in evaluating the ordinary affairs of life, and was entitled to infer guilt from appellant's improbable explanation of incriminating conduct. In short, while the evidence presented might not be sufficient to support a conviction, it is more than sufficient to support the revocation in this case.

Finally, as mentioned previously, the State need only prove that appellant violated any one condition of his probation in order to support revocation. Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003). Because we are affirming the trial court's finding that appellant violated the condition of his suspension not to commit an offense punishable by imprisonment by possessing the drug paraphernalia just discussed, it is not necessary for us to consider whether appellant constructively possessed the ephedrine that was found in the glove compartment of the vehicle.

Affirmed.

Hart and Vaught, JJ., agree.