APPEAL FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-15-2] HONORABLE SAM POPE, JUDGE
John F. Gibson, Jr., for appellant.
Leslie Rutledge, Att'y Gen., by: Kristen C. Green, Ass't Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge
Appellant Derrick Lambert was convicted by a Drew County jury of one count of being a felon in possession of a firearm. He was sentenced to four years in the Arkansas Department of Correction and fined $1000. Following trial, Lambert filed a motion for new trial, which was denied. On appeal, he raises two arguments for reversal: (1) his conviction was not supported by substantial evidence, and (2) the circuit court erred in denying his motion for new trial. We find no error and affirm.
I. Sufficiency of the Evidence
Arkansas Code Annotated section 5-73-103(a)(1) (Repl. 2005) prohibits any person who has been convicted of a felony from possessing or owning any firearm. Lambert conceded at trial that he is a convicted felon. However, he argued in his directed-verdict motion that the State failed to prove that he possessed the gun in question. The court denied his motion.
An appeal from the denial of a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Block v. State, 2015 Ark.App. 83, at 4, 455 S.W.3d 336, 339. On appeal, we will affirm the denial of a motion for directed verdict if substantial evidence, either direct or circumstantial, supports the conviction. Harmon v. State, 340 Ark. 18, 22, 8 S.W.3d 472, 474 (2000). Substantial evidence is evidence which would compel a conclusion one way or the other with reasonable certainty, without relying upon mere speculation or conjecture. Id., 8 S.W.3d at 474. We view the evidence in the light most favorable to the State and consider only evidence supporting the verdict. Butler v. State, 2009 Ark.App. 695, at 5, 371 S.W.3d 699, 702.
Lambert argues that the evidence does not support the verdict because the State's case against him relied on the theory of constructive possession and was entirely circumstantial. As a result, we consider the law on both constructive possession and circumstantial evidence.
The State is not required to establish actual physical possession but may prove possession constructively. Patton v. State, 2010 Ark.App. 453; Cherry v. State, 80 Ark.App. 222, 95 S.W.3d 5 (2003). 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. Walker v. State, 77 Ark.App. 122, 72 S.W.3d 517 (2002). Constructive possession may be inferred where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Alexander v. State, 2011 Ark.App. 610.
Constructive possession may also be inferred when contraband is in the joint control of the accused and another. Webb v. State, 2015 Ark.App. 257, 460 S.W.3d 820. Joint occupancy alone, however, is not sufficient to establish possession. Gamble v. State, 82 Ark.App. 216, 105 S.W.3d 801 (2003). Other factors must sufficiently link an accused to contraband found in a vehicle jointly occupied by more than one person. Among the factors sufficient to link an accused to contraband are whether the contraband was found on the same side of the car seat as the defendant or in immediate proximity to him and whether the accused acted suspiciously before or during the arrest. Id. (citing Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988)).
Lastly, constructive possession may be established by circumstantial evidence. Patton, supra. Circumstantial evidence may provide the basis for a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable explanation of the crime. Harris v. State, 2014 Ark.App. 448, at 3, 439 S.W.3d 715, 717. The question of whether the circumstantial evidence would support any other theory is for the jury to decide. Block, supra.
With these standards in mind, we examine the evidence presented at trial. Special Agent John Carter of the Tenth Judicial Drug Task Force conducted a traffic stop at about 2:00 a.m. on an older-model Tahoe for having no rear license plate. The Tahoe was driven by Misty Johnson; Alex Harrington was a front-seat passenger, and Lambert was sitting in the backseat on the passenger side. As Carter spoke with Johnson and got her information, Lambert opened the rear passenger door and tried to exit. Carter told him to stay in the vehicle. About that time, Patrolman Ben Michel arrived on the scene. Michel maintained observation of the passengers, Harrington and Lambert. Lambert was observed moving around in the Tahoe. Michel did not observe Harrington attempting to reach from his position in the front seat to the backseat area where Lambert was seated.
Carter requested consent to search the Tahoe from Johnson. The uncontroverted testimony from Johnson was that both Lambert and Harrington told her not to allow the search. Carter obtained consent from Johnson to search the vehicle, and a subsequent search revealed a gun in the armrest compartment inside the seat back next to where Lambert had been seated within the Tahoe. The armrest compartment was immediately accessible by Lambert. Johnson denied that the gun belonged to her or that she had ever seen the gun before. Lambert denied that the gun belonged to him. He took the position that the gun had been placed in the armrest by Harrington, the front-seat passenger. This position, however, was refuted ...