FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-15-2] HONORABLE
SAM POPE, JUDGE.
COURT OF APPEALS OPINION VACATED.
F. Gibson, Jr., for appellant.
Rutledge, Att'y Gen., by: Kristen C. Green, Ass't
Att'y Gen., for appellee.
DAN KEMP, Chief Justice
Derrick Gerade Lambert was convicted by a Drew County jury of
one count of felon in possession of a firearm, and he was
sentenced to a term of four years' imprisonment in the
Arkansas Department of Correction. After trial, Lambert filed
a motion for new trial, which was denied. For reversal,
Lambert contends that the circuit court erred in denying his
motion for directed verdict because the State failed to
present sufficient evidence that he possessed the firearm. He
further contends that the circuit court erred in denying his
motion for new trial because the State withheld exculpatory
evidence from the defense. We find no error and affirm.
Sufficiency of the Evidence
person who has been convicted of a felony is prohibited from
possessing or owning any firearm. Ark. Code Ann. §
5-73-103(a)(1) (Repl. 2016). Lambert conceded at trial that
he is a convicted felon, but he argued in his
directed-verdict motion that the State failed to present
sufficient evidence that he possessed a firearm. In reviewing
a challenge to the sufficiency of the evidence, this court
determines whether the verdict is supported by substantial
evidence, direct or circumstantial. E.g.,
Airsman v. State, 2014 Ark. 500, 451 S.W.3d 565.
Substantial evidence is evidence that is forceful enough to
compel a conclusion one way or the other beyond suspicion or
conjecture. Id., 451 S.W.3d 565. The evidence is
viewed in the light most favorable to the State, and only
evidence supporting the verdict will be considered.
Id., 451 S.W.3d 565.
following evidence was presented at trial. At approximately
2:00 a.m. on December 11, 2014, Special Agent John Carter of
the Tenth Judicial Drug Task Force initiated a traffic stop
of a Chevrolet Tahoe for having no rear license plate. The
vehicle was driven by Misty Johnson. Alex Harrington was a
front-seat passenger, and Lambert was sitting in the backseat
on the passenger side. While Carter spoke with Johnson and
obtained her license and information, Lambert opened the rear
passenger door and tried to exit the vehicle. Carter told
Lambert to stay in the vehicle. Meanwhile, Officer Ben Michel
arrived on the scene to assist with the traffic stop. Carter
asked Johnson to step out of the vehicle and then advised
Michel to "keep an eye on" Harrington and Lambert.
Michel stated that, while he watched the vehicle, he did not
see anyone "pass anything around the car" and that
he "didn't see anything handed from the front to the
back." Carter testified that he did not see Harrington
turn around in his seat and reach over the backseat. Carter
further testified he observed Lambert moving around a lot
inside the vehicle.
requested consent from Johnson to search the Tahoe. Johnson
testified that she consented to the search. She also
testified that both Lambert and Harrington had told her not
to allow the search. While searching the vehicle, Michel
pulled down the backseat armrest and saw a gun. Johnson
denied that the gun belonged to her and said that she had no
idea how or when the gun was placed in the vehicle. Lambert
denied that the gun belonged to him. He maintained that the
gun had been placed under the armrest by Harrington, the
appeal, Lambert contends that this evidence failed to prove
that he possessed the firearm. A conviction for violating
section 5-73-103(a)(1) may be based on actual or constructive
possession. See, e.g., Jones v. State, 355
Ark. 630, 144 S.W.3d 254 (2004). In this case, the State
relied on a theory of constructive possession. Constructive
possession of contraband means knowledge of its presence and
control over it. See Cary v. State, 259 Ark. 510,
534 S.W.2d 230 (1976); see also United States v.
Roberts, 953 F.2d 351, 353 (8th Cir. 1992) (noting that
"constructive possession" has been defined as
"knowledge of presence plus control"). Possession
may be imputed when the contraband is found in a place that
is immediately and exclusively accessible to the accused and
subject to his or her dominion and control, or to the joint
dominion and control of the accused and another.
Cary, 259 Ark. 510, 534 S.W.2d 230.
occupancy of a vehicle may raise an inference of constructive
possession of contraband, but it is insufficient, by itself,
to establish that possession. See Garner v. State,
355 Ark. 82, 131 S.W.3d 734 (2003). There must be some
additional factor linking the accused to the contraband.
Id., 131 S.W.3d 734. Among the factors this court
has considered in cases involving vehicles occupied by more
than one person are (1) whether the contraband was found on
the same side of the car seat as the accused was sitting or
in near proximity to him and (2) whether the accused acted
suspiciously before or during the arrest. Plotts v.
State, 297 Ark. 66, 759 S.W.2d 793 (1988); see also
Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785 (noting
that an accused's suspicious behavior coupled with
proximity to the contraband is clearly indicative of
present case, the State presented sufficient evidence to
establish that Lambert constructively possessed the
contraband. Although there was joint occupancy of the
vehicle, the State presented other evidence linking Lambert
to the gun. The gun was found in the backseat where Lambert
had been the sole passenger. The compartment in which the gun
was found was immediately and exclusively accessible to
Lambert. Moreover, Lambert behaved suspiciously before and
during the traffic stop. He told Johnson not to allow the
officers to search the vehicle, he exited the vehicle before
the police could approach it, and he moved around a lot
inside the vehicle. We conclude that substantial evidence
supports Lambert's conviction for felon in possession of
a firearm and that the circuit court did not err in denying
Lambert's motion for directed verdict.