LANCE W. HARJO APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE POLK COUNTY CIRCUIT COURT [NO. 57CR-16-3] HONORABLE
JERRY RYAN, JUDGE
Ethridge, for appellant.
Rutledge, Att'y Gen., by: Kent G. Holt, Ass't
Att'y Gen., for appellee.
Harrison and Brown, JJ., agree.
D. VAUGHT, Judge.
Lance Harjo appeals his conviction by a Polk County jury of
trafficking in methamphetamine, possession of drug
paraphernalia, simultaneous possession of drugs and firearms,
maintaining a drug premises, illegal use of a communication
device, possession of a defaced firearm, and possession of
marijuana with intent to deliver. Specifically, he challenges
the finding that he constructively possessed the drugs and
firearms found during the search and that security cameras
placed around the property constituted "communications
devices" under Arkansas Code Annotated section 5-64-404.
We affirm on both points.
January 5, 2016, members of the 18th West Judicial District
Task Force and the Polk County Sheriff's Department
executed a search warrant at Harjo's home. At trial, the
evidence established that the officers were familiar with
Harjo and knew that he occupied the residence. When officers
arrived to search the home, Harjo was inside an adjacent shop
building with two other individuals. Xabrina Kahn Cunningham,
who officers also knew to be living with Harjo, was asleep in
the master bedroom. As Cunningham was being led away by the
officers, Harjo stated that anything they found in their
search was his.
search of Harjo's home focused largely on the master
bedroom that, based on the clothing found there, appeared to
be shared by Harjo and Cunningham. The bedroom was described
in the trial testimony as having a shallow closet with doors
that had been removed, in which a desk had been placed. In
plain sight on the desk or beside it were various bills
addressed to Harjo (indicating that he resided in the home),
firearms (assault rifles, a shotgun, and a handgun),
ammunition, a digital scale, night vision goggles, small
quantities of packaged marijuana, various pills, and "a
lot of methamphetamine" packaged in a Ziploc bag and in
red Solo cups. Inside the desk, they found a plastic bag
containing a substance that appeared to be marijuana, another
scale, devices used to smoke methamphetamine or marijuana,
and a Ruger P-95 semiautomatic pistol with identifying serial
numbers that had been drilled out. Inside the adjacent shop
building, officers found a safe, which they seized. After
obtaining a second search warrant to open the safe, they
found cash, a firearm, and marijuana and methamphetamine in
small plastic bags.
Wilcox, a forensic chemist with the Arkansas State Crime
Laboratory, testified that she tested various items seized
during the search of Harjo's residence. Wilcox testified
that the materials tested were positively identified as
marijuana and methamphetamine. Moreover, a waxy substance
obtained in the search contained THC, and the pills contained
hydrocodone and oxycodone. Once she had established the
presence of methamphetamine in an aggregate quantity of over
approximately 300 grams, she did not test the remaining drug
contraband because the statutory presumption for trafficking
is only 200 grams. Ark. Code Ann. § 5-64-440(b)(1)
was convicted and filed a timely notice of appeal. He raises
two challenges to his convictions: that there was
insufficient evidence to establish constructive possession
and that the security cameras around his home were not
communications devices pursuant to section 5-64-404. Both of
Harjo's points on appeal are, essentially, challenges to
the sufficiency of the evidence.
reviewing the sufficiency of the evidence, this court views
the evidence in the light most favorable to the State,
considering only evidence that supports the verdict, and
affirms if substantial evidence, direct or circumstantial,
supports the verdict. Alexander v. State, 78
Ark.App. 56, 62, 77 S.W.3d 544, 547 (2002). Substantial
evidence is evidence that is of sufficient force and
character that it will, with reasonable certainty, compel a
conclusion without resorting to speculation or conjecture.
Id. For circumstantial evidence to be sufficient, it
must exclude every other reasonable hypothesis consistent
with innocence, but whether it does so is left to the jury
alone to determine. Williams v. State, 338 Ark. 97,
106-107, 991 S.W.2d 565, 569 (1999).
possession can be inferred when the contraband is found in a
place immediately and exclusively accessible to the defendant
and subject to his control. Franklin v. State, 60
Ark.App. 198, 201, 962 S.W.2d 370, 372 (1998). Constructive
possession can also be inferred when the contraband is in the
joint control of the accused and another. Id.
However, joint occupancy alone is not sufficient to establish
possession or joint possession; there must be some additional
factor linking the accused to the contraband. Id. In
such cases, the State must prove that the accused exercised
care, control, and management over the contraband and that
the accused knew the matter possessed was contraband.
Id. Control over the contraband can be inferred from
the circumstances, such as the proximity of the contraband to
the accused, the fact that it is in plain view, and the
ownership of the property where the contraband is found.
Nichols v. State, 306 Ark. 417, 420, 815 S.W.2d 382,
384 (1991). Furthermore, jurors do not and need not view each
fact in isolation, but rather may consider the evidence as a
whole. Bridges v. State, 46 Ark.App. 198, 202, 878
S.W.2d 781, 784 (1994). Jurors are also entitled to draw any
reasonable inference from circumstantial evidence to the same
extent that they can from direct evidence. Shipley v.
State, 25 Ark.App. 262, 267, 757 S.W.2d 178, 181 (1988).
satisfied that substantial evidence was presented at trial to
support the jury's finding that Harjo constructively
possessed the contraband found in the home. First, officers
testified that they were familiar with Harjo and had prior
knowledge that he lived at that address. Second, bills in his
name were found in the bedroom along with men's clothing.
Harjo was physically present at the residence when officers
arrived. Finally, and most notably, Harjo told officers that
whatever they found in their search of the home belonged to
him. Therefore, we hold that substantial evidence supports
the jury's finding that Harjo exercised care, control,
and management over the contraband and affirm on this point.
second point on appeal challenges the sufficiency of the
evidence for his conviction for using a communication device
to facilitate drug-related activity pursuant to Arkansas Code
Annotated section 5-64-404. The only communication devices
alleged to have been used were several security cameras
positioned around the home that transmitted images to a
multiplex video monitor located on the desk in the master
bedroom (the same desk where the contraband was found). Harjo
claims that the video cameras do not meet ...