Court of Appeals of Arkansas, DIVISIONS I, II, III
FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43CR-14-167]
HONORABLE SANDY HUCKABEE, JUDGE
Rosenzweig, for appellant.
Rutledge, Att'y Gen., by: Amanda Jegley, Ass't
Att'y Gen., for appellee.
D. VAUGHT, Judge.
Lonoke County jury found Alexander Pokatilov guilty of
possession of a Schedule VI controlled substance (marijuana)
with the purpose to deliver. On appeal, Pokatilov argues that
(1) there was insufficient evidence to support his
conviction; (2) the circuit court abused its discretion by
rejecting his proffered instruction on constructive
possession; (3) the circuit court abused its discretion by
refusing to reinstruct the jury with his proffered
instruction on constructive possession; and (4) the circuit
court erred in denying his motion to suppress evidence seized
as a result of an illegal search. We affirm.
was an owner-operator of an automobile-transport carrier that
moved vehicles from coast to coast. On March 6, 2014, he was
carrying six vehicles when he was pulled over by Officer
Jeremy Watkins of the Arkansas Highway Police on Interstate
40 in Lonoke County. At trial, Watkins testified that he
observed a large commercial carrier loaded with vehicles
drive several times over the white line onto the shoulder
where there was ice left over from a snowstorm. Watkins
stopped the vehicle. Watkins advised Pokatilov that he was not
keeping his vehicle in his lane, and Pokatilov became
argumentative and said he was driving fine.
testified that he was certified by the Department of
Transportation to conduct inspections on commercial vehicles
and that it is standard procedure to obtain and review the
truck and trailer registration, commercial driver's
license, logbooks, and bills of lading on each automobile
being transported. He instructed Pokatilov to produce his
paperwork. According to Watkins, several things in the
paperwork aroused his suspicion. He found excessive downtime
in the logbooks, which was uncommon because carriers do not
get paid for downtime. He stated that the logbooks showed
Pokatilov to be off duty from February 9 to February 18 and
from February 21 to March 3. Watkins also testified that the
bills of lading were not filled out properly; they seemed
"very, very generic." Some showed a customer's
first name and no last name. Others did not have a customer
name on them at all.
told Watkins that he had loaded the cars onto the trailer and
that he knew there were items in some of the vehicles.
Watkins also thought Pokatilov, who was sitting in the patrol
car by this time, seemed nervous. When Watkins asked
Pokatilov if he allowed people to put personal belongings in
the cars he hauled, Pokatilov brought up the topic of
marijuana, stating that if a vehicle he was carrying smelled
like marijuana, he would report it to law enforcement.
Watkins asked, "You don't think there's anything
illegal in any of them?" Pokatilov responded, "Not
really." Watkins testified that these indicators of
criminal activities caused him to ask Pokatilov if he minded
if Watkins searched the vehicles on the carrier, and
Pokatilov answered, "Nope, not at all."
vehicle stood out to Watkins-a 1995 Chevy Tahoe. Watkins was
suspicious of this vehicle because it was the only one
Pokatilov had picked up at a shopping center; the rest had
been picked up at homes. Watkins also found it odd that
someone would pay more than the 1995 Tahoe's value to
have it hauled across the country. Watkins searched the Tahoe
first and within minutes found two Rubbermaid containers and
a Home Depot box in the cargo area. Watkins opened the
containers and found multiple bags of what appeared to be
Bangs, a forensic chemist with the Arkansas State Crime Lab,
testified that he tested twelve bags submitted by Watkins,
that they were positive for marijuana, and that the marijuana
weighed 32.37 pounds. Bangs testified that marijuana is a
Schedule VI controlled substance.
testified that his business is called AAA Cargo Transport and
that his wife works as a dispatcher and negotiates with
brokers. He said that brokers had compiled the information
about the vehicles on the dispatch sheets. He completed each
bill of lading when he picked up a vehicle. He said filling
out the bills of lading was redundant when all of the
necessary information was on the dispatch sheet. He stated
that he picked up six cars in California and Nevada for
transport to North Carolina. He explained that he had
excessive downtime in Las Vegas because his carrier had
broken down. He said he had to order parts, wait for them to
be delivered, and wait for the repair.
said that it was not unusual to pick up vehicles from
somewhere other than a residence and that loading a vehicle
in a parking lot was sometimes necessary to avoid damage to
the vehicle. He testified that he did not think it was
unusual to be hauling a nineteen-year-old vehicle and that he
did not ask why people wanted their vehicles moved. He said
that he had the keys to all of the vehicles and inspected
them but that he did not look inside containers in the
vehicles. After Watkins asked for consent to search the
vehicles on the carrier, Pokatilov testified that he told
Watkins, "Go for it. They're not my cars. I'm
just a transporter." He denied any knowledge of the
presence of marijuana in the Tahoe he was transporting, and
he claimed that he was not nervous at all. The jury convicted
him and sentenced him to five years' probation and a fine
of $5, 000. This appeal followed.
first point on appeal is a challenge to the sufficiency of
the evidence supporting his conviction. When reviewing the
sufficiency of the evidence, we determine whether there is
substantial evidence to support the verdict, viewing the
evidence in the light most favorable to the State.
Barrera v. State, 2012 Ark.App. 533, at 4.
Substantial evidence is that which is of sufficient force and
character that it will, with reasonable certainty, compel a
conclusion one way or the other, without resorting to
speculation or conjecture. Id. Circumstantial
evidence can be sufficient to sustain a conviction when it
excludes every other reasonable hypothesis consistent with
innocence. Id. The question of whether the
circumstantial evidence excludes every hypothesis consistent
with innocence is for the jury to decide. Id.
was convicted of possession of a Schedule VI controlled
substance with the purpose to deliver pursuant to Arkansas
Code Annotated section 5-64-436(a) (Supp. 2013). It is a
Class B felony if the person possessed twenty-five pounds or
more but less than one-hundred pounds by aggregate weight,
including an adulterant or diluent, of a Schedule VI
controlled substance. Ark. Code Ann. § 5-64-436(b)(4).
possession of contraband is established if the State can show
that an individual had direct physical control over it.
Craig v. State, 314 Ark. 585, 589, 863 S.W.2d 825,
827 (1993). The State does not have to establish actual
physical possession; rather, possession may be proved by
constructive possession, which is the control or right to
control the contraband. Polk v. State, 348 Ark. 446,
452, 73 S.W.3d 609, 614 (2002). Constructive possession may
be inferred when contraband is found in a place immediately
and exclusively accessible to the accused and subject to his
control. Id. at 453, 73 S.W.3d at 614. The State
satisfies its burden of showing constructive possession if it
shows that contraband was found in a location under the
accused's dominion and control. Id., 73 S.W.3d
majority of Pokatilov's argument under this point on
appeal is that there was insufficient evidence presented at
trial to prove that he knowingly possessed the
marijuana. He cites three cases for support: Fultz v.
State, 333 Ark. 586, 972 S.W.2d 222 (1998); Darrough
v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); and
Boston v. State, 69 Ark.App. 155, 12 S.W.3d 245
and Darrough are distinguishable because they are
joint-occupancy cases and require the additional element that
the defendant knew the matter possessed was a controlled
substance. Fultz, 333 Ark. at 596, 972 S.W.2d at
226; Darrough, 322 Ark. at 253, 908 S.W.2d at 326.
In Boston, our court employed a joint-occupancy
analysis, including the knowledge element, where the facts
established that the appellant was in one of two vehicles
traveling together that were stopped by police and that the
appellant had permitted a person he was traveling with to
place her suitcase containing marijuana in the trunk of his
car. Boston, 69 Ark.App. at 161-62, 12 S.W.3d at
case at bar is not a joint-occupancy case. Pokatilov was not
traveling with anyone else, he was not stopped with another
vehicle, and he was alone in his carrier when he was stopped.
Therefore, constructive possession did not require the
additional joint-occupancy element of knowledge. See Pyle
v. State, 314 Ark. 165, 180, 862 S.W.2d 823, 831 (1995)
("When contraband is found in a place under a
defendant's dominion and control a jury may infer
constructive possession, but if joint control is established,
proof of knowledge of the contraband is required.");
Barrera v. State, 2012 Ark.App. 533, at 6 (holding
that the joint-occupancy cases cited by Barrera were
inapposite as he was undisputedly the only person in the
case at bar is very similar to Barrera. There a jury
convicted Barrera of possession of marijuana with intent to
deliver and possession of drug paraphernalia. 2012 Ark.App.
533, at 1. On appeal, Barrera argued that there was no
evidence presented to indicate that he knew there was
contraband in the truck he was hauling on his flatbed
trailer. He contended that the truck he was towing on the
trailer was open to access from the general public and that
the State failed to present any evidence linking him more
definitely to the contraband. Barrera, 2012 Ark.App.
533, at 4. We affirmed the jury's convictions, holding
that the evidence demonstrated that Barrera had immediate and
exclusive access to the truck in which the marijuana was
found and that the jury could reasonably conclude that he
constructively possessed the contraband. Id. at 6.
We also held that, to the extent Barrera relied on his
testimony that he was merely driving the truck for a friend
and did not know the marijuana was in the truck, the jury was
not required to believe his self-serving testimony that he
did not know there was marijuana in the truck he was hauling.
Id. at 6.
in the case at bar, Pokatilov was the driver and sole
occupant of the carrier hauling the Tahoe that contained the
marijuana. He had the keys to the Tahoe, which was
immediately and exclusively accessible to him and subject to
his dominion and control. He loaded the Tahoe onto the
carrier. The dispatch sheet for the Tahoe instructed him to
"PLEASE DO A THOROUGH INSPECTION OF THE VEHICLE ON
PICKUP." The Tahoe's bill of lading has a
handwritten mark on the "driver's signature"
line confirming an inspection of the vehicle upon pickup, and
Pokatilov testified that he filled out each bill of lading.
Pokatilov admitted that there was some "stuff"
inside the vehicles. This is substantial evidence that
Pokatilov had immediate and exclusive access to the Tahoe in
which the marijuana was found; therefore, the jury could
reasonably conclude that he constructively possessed the
addition to Pokatilov's immediate and exclusive access to
the contraband, the jury could have further inferred
constructive possession from his suspicious behavior, which
included the discrepancies in his paperwork, his nervousness,
his bringing up the topic of marijuana, and his equivocal
response of "not really" when Watkins asked him if
there was anything illegal in any of the vehicles he was
transporting. Barrera, 2012 Ark.App. 533, at 6
(holding that an accused's suspicious behavior coupled
with proximity to the contraband is clearly indicative of
argues that his trial testimony provided alternative and
innocent explanations for the above-cited evidence. However,
these arguments focus on the credibility of the witnesses,
and it is well settled that it is the province of the
fact-finder to determine the weight of evidence and the
credibility of witnesses. Lockhart v. State, 2017
Ark. 13, at 3, ___ S.W.3d ___, ___. Viewing the evidence in
the light most favorable to the verdict, we hold that ...