Ashma Aaron v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ASHMA AARON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-907

March 16, 2005

APPEAL FROM THE UNION COUNTY CIRCUIT COURT

[NO. CR 2001-0441-1]

HON. CAROL CRAFTON-ANTHONY,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant Ashma Aaron was convicted in a non-jury trial of being a felon in possession of a firearm and, consequently, had his probated sentence for previous possession of a controlled substance revoked. He was sentenced to an additional thirty-six months of probation. On appeal, appellant challenges the sufficiency of the evidence supporting both the conviction for felon in possession of a firearm and the revocation of his probation. We affirm.

On October 11, 2003, Officer Angela Means of the El Dorado Police Department stopped a car for speeding. The car was driven by Terence Williams, and appellant was riding in the front passenger seat. Officer Means discovered that Williams was a suspect in a prior burglary and told both men to place their hands in the air. Williams immediately complied, but the request had to be repeated three times before appellant raised his hands. Prior to complying with Officer Means's request, appellant was sitting back in his seat but bent over with his hands under the seat where they could not be seen. Officer Means moved around to the passenger side of the car, at which time she noticed a .40-caliber firearm sticking out from under the seat where appellant was sitting.

Appellant was formally charged with possession of a firearm by certain persons on December 15, 2003, and on February 18, 2004, the State filed a petition seeking to revoke appellant's previously probated sentence for his November 20, 2001 conviction for possession of marijuana and cocaine. On April 27, 2004, a bench trial was held on both the new substantive charge and the petition for revocation. Both appellant's motion for directed verdict at the close of the State's case and renewed motion at the close of the evidence were denied. On appeal, appellant argues that there was no evidence that he ever touched the firearm or that he even had knowledge of the firearm being inside the vehicle, and accordingly, there was insufficient evidence to support either the conviction for felon in possession of a firearm or the revocation of his probation.

I. Evidence Supporting Appellant's Conviction For Felon In Possession Of A Firearm

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. Simmons v. State, __ Ark. App. __, __ S.W.3d __ (Dec. 8, 2004). 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 to sustain a conviction of possession of a firearm. Young v. State, 77 Ark. App. 245, 72 S.W.3d 895 (2002). In order to prove a defendant is in possession of contraband, constructive possession is sufficient. Gamble v. State, 82 Ark. App. 216, 105 S.W.3d 801 (2003). While constructive possession can be implied when the contraband is in the joint control of the defendant and another, joint occupancy is not sufficient by itself to establish constructive possession. Id. In joint occupancy cases, the State is required to prove beyond a reasonable doubt that the defendant (1) exercised care, control, and management over contraband, and (2) knew the matter possessed was contraband. Id.

Additional factors that may be used by the State to sufficiently link appellant to contraband, in this case a firearm, in a joint occupancy situation involving a vehicle include: (1) whether the contraband was found in plain view; (2) whether the contraband was found on appellant's person or with his personal effects; (3) whether the contraband was found on the same side of the car seat as appellant or in immediate proximity to him; (4) whether appellant owned the vehicle in question or exercised dominion and control over it; (5) whether appellant acted suspiciously before or during the arrest. In the instant case, the firearm was in Officer Means's plain view sticking out from under appellant's seat as she looked into the car window. While the firearm was not found directly on appellant's person or with his personal effects, it was directly under the seat in which he was sitting at the time and in his immediate proximity. No argument was made by the State that appellant owned the vehicle that Williams was driving, or that he was exercising control over it. However, the State did maintain that appellant acted suspiciously by keeping his hands under the seat where the firearm was located, raising them only after being told four separate times by Officer Means.

There is substantial evidence to sustain the conviction, despite appellant's arguments that Officer Means did not see his hands until he raised them and that Williams testified that he was the one who found the firearm a week earlier and stuck it in the car without appellant's knowledge. Although appellant denied that he possessed the contraband, the trial court was not required to believe his, or any other witness's, self-serving testimony. See Sera v. State, 341 Ark. 415, 17 S.W.3d 61, cert. denied, 531 U.S. 998 (2000). After reviewing the evidence in the light most favorable to the State, we hold that sufficient evidence supports appellant's conviction on the substantive count.

II. Evidence Supporting The Revocation Of Appellant's Probation

Before addressing the merits of this point, we take this opportunity to note that the parties failed to include a copy of appellant's conditions of probation in their briefs; however, that document, which was signed by appellant, was introduced at the trial as State's Exhibit 1 and is included in the record at pages 107-109. Condition number five states:

You must not purchase, own, control, or possess any firearm or other prohibited deadly weapon at any time, or be in the company of any person possessing the same.

Accordingly, we can reach the merits because it is well settled that we can go to the record to affirm. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).

To revoke probation, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003). The State need only prove one violation of the probation conditions for the trial court to revoke a probation. Sisk v. State, 81 Ark. App. 276, 101 S.W.3d 248 (2003). On appeal, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Id. Because the 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. Id.

Appellant maintains that the only allegation that he had violated the terms and conditions of his probation was that he committed the offense of possessing a firearm and that because the State failed to prove the element of possession, there was insufficient evidence to revoke his previously probated sentence, even under the preponderance-of-the-evidence standard. Because we find that substantial evidence supports the conviction for being a felon in possession of a firearm, and because one of the conditions of appellant's probation was that he could not possess a firearm, we affirm the revocation of appellant's probation as well..

Affirmed.

Griffen and Baker, JJ., agree.