Gary John Smith v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

GARY JOHN SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-388

FEBRUARY9, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 03-2708]

HON. JOHN W. LANGSTON,

JUDGE

AFFIRMED

Terry Crabtree, Judge

A jury sitting in the Pulaski County Circuit Court convicted the appellant, Gary John Smith, of possession of cocaine and sentenced him to twelve years' imprisonment in the Arkansas Department of Correction. On appeal, appellant challenges the sufficiency of the evidence supporting his conviction. We affirm.

On June 5, 2003, Detectives Tina Moore and Clark Sheffield of the Little Rock Police Department responded to a narcotics complaint at 4500 West 24th Street in Little Rock. When they arrived at the house, they did not see any activity. They looked at the house across the street and saw what appeared to be a narcotics transaction taking place. Appellant was standing on the front porch of the house. The officers saw him exchange an object with a person inside the house through a metal security door. The officers made contact with appellant as he walked off of the porch. They saw appellant with his right hand clenched as if he were holding something. When the officers asked appellant what he had in his hand, appellant said nothing. When Detective Moore asked appellant to show her what was in his hand, appellant opened his hand and flung something out of it. Next, appellant raised his hands and continued walking towards the officers. After the officers asked appellant for his name and other information, officers searched the area where appellant had thrown the object. Officer Brian Healey, who had stopped to assist the detectives, found a rock of crack cocaine in an area that was approximately one to two feet away from where appellant was standing when he threw the object.

At trial, Detectives Moore and Sheffield testified that they saw appellant exchange something through the metal security door at the house, walk away from the door with his right hand clenched as though he was holding something, and fling the object out of his hand into a nearby area. Officer Healey testified that he saw appellant throw something on the ground and that, when he found the crack cocaine in the area where appellant had thrown the object, there was nothing else on the ground in the area other than leaves and acorns. Roy Adams, a forensic drug chemist with the Arkansas State Crime Lab, testified that the crack cocaine that Officer Healey seized weighed .1803 grams.

Appellant testified that, as he was walking home that night, someone in the house where he was apprehended asked to borrow a cigarette. According to appellant, he did not know the person. Appellant further stated that the person made him walk to the door of the house and that he had to hand a cigarette to the person through a metal security door. He claimed that he had cigarettes and not crack cocaine in his possession that night.

Appellant made timely directed-verdict motions below; however, the circuit judge denied them. Motions for directed verdict are challenges to the sufficiency of the evidence. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002).

On appeal, appellant specifically argues that the trial court failed to prove that he possessed cocaine. Arkansas Code Annotated section 5-64-401(c) (Supp. 2001) provides that it is illegal to possess cocaine.1 The State needed only to prove constructive possession, and constructive possession requires that the State prove beyond a reasonable doubt that the accused exercised care, control, and management over the contraband and that the accused knew that the matter possessed was contraband. Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517 (2002). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002).

In this case, Detectives Moore and Sheffield saw appellant behave suspiciously when he obtained an object through a metal security door. Appellant threw the object, which was in his care, control, and management, into an area that was immediately accessible to him and subject to his control. The object, which was found one to two feet away from where appellant was standing, was identified to be crack cocaine. Suspicious behavior coupled with a person's proximity to contraband is indicative of possession. See Crossley v. State, 304Ark. 378, 802 S.W.2d 459 (1991). Furthermore, appellant gave an improbable explanation for why he was on the porch of a house whose occupants he did not know, and guilt can be inferred from an improbable explanation of incriminating conduct. See Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000). Although appellant denied that he possessed the contraband, the jury was not required to believe his self-serving testimony. See Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). The jury was free to believe all or part of any witnesses's testimony and could resolve questions of conflicting testimony and inconsistent evidence by choosing to believe the State's account of the facts rather than appellant's. See Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). After reviewing the evidence in the light most favorable to the State, we hold that sufficient evidence supports appellant's conviction.

Affirmed.

Griffen and Vaught, JJ., agree.

1 The General Assembly amended Ark. Code Ann. § 5-64-401 during the 2003 legislative session. See 2003 Ark. Acts No. 1336. This Act, however, did not go into effect until July 16, 2003, see Op. Att'y Gen. #2003-119, and does not apply in this case because appellant committed the offense at issue before that date.