Larry Cromwell v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

LARRY CROMWELL,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-375

DECEMBER 8, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

SIXTH DIVISION,

(NO. CR02-3829)

HON. TIM FOX, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Larry Cromwell was convicted in a non-jury trial of being a felon in possession of a firearm and was sentenced to five years in prison. On appeal, Cromwell contends that the trial court erred when it denied his motion to dismiss. We hold that there was substantial evidence to support the conviction in this case; thus, we affirm.

At trial, Officer Edward Mooring of the Little Rock Police Department testified that on August 6, 2002, he assisted in performing a search and seizure at 3600 West 12th Street. He said that the house at this location contained two bedrooms, a living room, a kitchen, and a washroom area, and that he was assigned to search the master bedroom. Mooring stated that while conducting his search, he found a nine-millimeter pistol in the master-bedroom closet that contained only men's clothes. According to Mooring, the weapon was in the pocket of a man's coat inside the closet.

Detective Donnie Bakalekos then testified that he obtained and served the warrant for the search and seizure at 3600 West 12th Street. The warrant was obtained based on information that a black female was selling drugs at this location. Bakalekos also said that one of the bedrooms at this location contained a closet full of men's clothes, while another bedroom had a closet containing women's clothes. According to Bakalekos, the persons in the house at the time he served the warrant were Cromwell, a female named Shante Sabbs, and a child.

Officer Reginald Ridgell testified that he also participated in serving the warrant at 3600 West 12th Street. Ridgell said that two people were inside the residence when he went in, Cromwell and a female. He stated that he found some paperwork in the master bedroom of the house, a letter addressed to Larry Cromwell and a Comet Cleaners bill with Cromwell's name on it. It is undisputed that Cromwell was a convicted felon.

At the close of the State's case, Cromwell moved for a directed verdict on the grounds that the State failed to show that Cromwell had knowledge or control over the gun. The trial court denied the motion. Cromwell rested and renewed his motion for a directed verdict. The court again denied the motion.

It is well-settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). In a non-jury trial, a motion for dismissal is the equivalent of a motion for a directed verdict in a jury trial. Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002).

For evidence to be sufficient, there must be substantial evidence, direct or circumstantial, to support the verdict, meaning that the evidence must be forceful enough to compel a conclusion one way or the other without having to resort to speculation and conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). In reviewing a challenge to the sufficiency of the evidence, the court will view the evidence in a light most favorable to the State and consider only the evidence that supports the conviction. Id.

Circumstantial evidence may constitute substantial evidence to support a defendant's conviction, but only if it excludes every reasonable hypothesis consistent with innocence. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999). The question of whether circumstantial evidence excludes every reasonable hypothesis other than guilt is generally reserved for the factfinder. Id.

Arkansas Code Annotated section 5-73-103(a)(1) (Supp. 2003) states that no person who has been convicted of a felony shall possess or own any firearm. Neither actual physical possession nor ownership are necessary for conviction of possession of a firearm. Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986). In order to prove a defendant is in possession of contraband, constructive possession is sufficient. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). While constructive possession can be implied when the contraband is in joint control of defendant and another, joint occupancy is not sufficient by itself to establish constructive possession. Id. In joint occupancy cases, the State must show that the defendant (1) exercised care, control, and management over contraband, and (2) knew the matter possessed was contraband. See, e.g., Gamble v. State, 82 Ark. App. 216, 105 S.W.3d 801 (2003); see also Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988).

While conceding that that there was joint occupancy of the residence where the gun was found, Cromwell argues that there was no evidence linking the gun found in the closet to him, and that, thus, the evidence was insufficient to support his conviction in this case. To support this argument, Cromwell cites Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978), in which the supreme court said that when only circumstantial evidence is presented, there must be some factor in addition to joint control of the premises to link the accused with the contraband.

However, Cromwell's reliance on Ravellette disregards the part of the opinion where the supreme court went on to explain that "[i]n other words, it cannot be inferred that one in non-exclusive possession of the premises knew of the presence of contraband and had joint control of it unless there were other factors from which the factfinder could reasonably infer that the accused had joint possession and control." Id. at 346, 571 S.W.2d at 434. It is clear under Ravellette that where a person does not exclusively possess the premises, one cannot infer that the person has knowledge and control of contraband found on the premises unless other factors, direct or circumstantial, are present to support such inference. As our supreme court said in Cary v. State, 259 Ark. 510, 518, 534 S.W.2d 230, 236 (1976), "The evidence of the circumstances is [a] sufficient basis for a reasonable inference that appellant knew of the presence of [contraband] and that he had the right to exercise, at least, joint dominion and control of it."

The State cites numerous cases in which Arkansas courts have addressed sufficiency of the evidence with respect to convictions for being a felon in possession of a firearm. In Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995), the supreme court upheld the defendant's simultaneous convictions for possession of cocaine and a firearm and for being a felon in possession, where the defendant jointly occupied a residence with another woman, they were in the bedroom at the time the residence was searched, there was a considerable amount of drugs and cash in open view in the bedroom, and a loaded shotgun was found nearby. The court said that it had "no hesitancy in holding that these facts constitute substantial evidence that [the defendant] knew of and had control of the contraband ... and that he was a felon in possession of a firearm." Id.

In addition, this court has held that a statement by a defendant that a gun "needed tobe hidden better" was sufficient to link him to a weapon for purposes of upholding his conviction for being a felon in possession of a firearm. See Killian v. State, 60 Ark. App. 127, 959 S.W.2d 432 (1998). Furthermore, we have affirmed a defendant's conviction for being a felon in possession of a firearm where he was merely standing in a window below which a gun was found. See Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986).

In this case, Cromwell jointly occupied the residence at 3600 West 12th Street with two other persons, a woman and a child. According to testimony, Cromwell and at least one other occupant were in the house at the time of the search. There were two bedrooms in the house, a master-bedroom with a closet that contained only men's clothing, and another with a closet containing only women's clothes. The only other rooms in the house were a living room, a kitchen, and a washroom. One of the officers found a nine-millimeter pistol in the pocket of a man's coat in the master-bedroom closet. Also in the master bedroom, another officer found a letter to Cromwell and a cleaners receipt with Cromwell's name on it. Cromwell does not dispute that he was a convicted felon.

Viewing this evidence in the light most favorable to the State, we have no difficulty in concluding that there were additional factors that sufficiently linked Cromwell with the gun found in the master-bedroom closet. Thus, the evidence was sufficient to establish an inference that Cromwell had the requisite knowledge and control of the gun to support his conviction for being a felon in possession of a firearm.

Affirmed.

Robbins and Roaf, JJ., agree.