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Pokatilov v. State

Supreme Court of Arkansas

September 28, 2017

ALEXANDER POKATILOV APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE LONOKE COUNTY CIRCUIT COURT [43CR-14-167] HONORABLE SANDY HUCKABEE, JUDGE

          Jeff Rosenzweig, for appellant.

          Leslie Rutledge, Att'y Gen., by: Amanda Jegley, for appellee.

          ROBIN F. WYNNE, ASSOCIATE JUSTICE

         Alexander Pokatilov appeals from his conviction for possession of a controlled substance with purpose to deliver, for which he was sentenced to five years' probation and ordered to pay a $5000 fine. Appellant makes the following arguments on appeal: 1) the circuit court should have granted his motion for directed verdict; 2) the circuit court erred in refusing a proffered jury instruction; 3) the circuit court erred in refusing to reinstruct the jury after it submitted questions during its guilt-phase deliberations; and 4) the trial court erred in denying appellant's motion to suppress. Our court of appeals affirmed appellant's conviction, Pokatilov v. State, 2017 Ark.App. 150, 516 S.W.3d 285, and we granted appellant's petition for review. Because we granted the petition for review, our jurisdiction lies pursuant to Rule l-2(e) of the Rules of the Arkansas Supreme Court (2016). We affirm.

         Appellant was the owner-operator of an automobile-transport carrier. On March 6, 2014, he was driving a load of vehicles from the west coast to the east coast when he was stopped on Interstate 40 in Lonoke County. Arkansas Highway Police Officer Jeremy Watkins stopped appellant because he observed the car carrier cross the white line and drive on to the shoulder several times. At that time, there was ice on the shoulder of the roadway. I Watkins was certified by the United States Department of Transportation (DOT) to perform inspections of commercial vehicles. During the stop, Watkins instructed appellant to produce his paperwork, including his registration, commercial driver's license, logbooks, and the bill of lading for each vehicle being transported, as part of an inspection of the car carrier. After his review of the paperwork was complete, Watkins requested and obtained j permission from appellant to search the vehicles appellant was transporting. Approximately thirty-two pounds of marijuana were discovered in one of the vehicles, a 1995 Chevrolet 1 Tahoe. Appellant was arrested and charged with possession of a controlled substance with purpose to deliver.

         Prior to trial, appellant filed a motion to suppress evidence, arguing that the stop of his carrier was illegal and that the search of the vehicles was illegal. After a hearing on the motion, it was denied. During trial, at the close of the State's case during the guilt phase and again after close of all the evidence, appellant moved for a directed verdict. Both motions were denied. Appellant subsequently proffered a non-model jury instruction on constructive possession. The trial court declined to give the non-model instruction. When the jury submitted questions to the trial court during its guilt-phase deliberations, appellant again requested that his proffered instruction be given. The request was denied. Appellant was convicted and sentenced as stated above. This appeal followed.

         Appellant's first argument is that the trial court erred by denying his motions for directed verdict, arguing that the State failed to prove that he possessed the marijuana. On appeal from the denial of a directed-verdict motion challenging the sufficiency of the s evidence, we view the evidence in the light most favorable to the verdict, considering only the evidence that supports the verdict, and determine whether the verdict is supported by substantial evidence, which is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Turner v. State, 2014 Ark. 415, at 3, 443 S.W.3d 535, 537.

         Although circumstantial evidence may provide a basis to support a conviction, it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id. The credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent I evidence. Id. It is not necessary for the State to prove that an accused physically held the contraband, as possession of contraband can be proven by constructive possession, which is the control or right to control the contraband. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id.

         Appellant was the only person in the automobile carrier when it was stopped. However, because the marijuana was not found in the carrier, but was instead located in a vehicle belonging to another person that was being transported by appellant, this case does not fit the typical fact pattern for constructive-possession cases, and there exists a question as to whether the analysis required for joint occupancy should be applied. In cases involving joint occupancy of the premises where the contraband is found, some additional factors must be present linking the accused to the contraband, Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785. Those factors include (1) that the accused exercised care, control, or management over the contraband; and (2) that the accused knew the matter possessed was contraband. The control and knowledge 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. Id. In addition, an accused's suspicious behavior coupled with proximity to the contraband is clearly indicative of possession. Id.

         While it does not appear that this court has ever considered a constructive-possession case involving an automobile carrier, we have decided a case in which drugs were found in the trailer of an eighteen-wheel truck. See McKenzie v. State, 362 Ark. 257, 208 S.W.3d 173 (2005). In McKenzie, we stated that the issue of constructive possession of contraband located in the trailer of an eighteen-wheel truck was one of first impression, [1] and rejected the defendant's challenge to the sufficiency of the evidence because "the State proved other factors linking [him] to the contraband." 362 Ark. at 267, 208 S.W.3d at 178. Because the State was required to prove other factors linking the defendant to the contraband in a case involving drugs found in the trailer of an eighteen-wheel truck, we hold that the State should likewise be required to prove additional factors in the instant case, where contraband was found in one of several different vehicles, all belonging to persons other than appellant, s that were being hauled on an automobile carrier.[2]

         As stated above, marijuana was found in a 1995 Chevrolet Tahoe that was on appellant's carrier. At trial, Watkins testified that appellant's logbooks contained excessive downtime, which was explained as being unusual because appellant would not be paid for downtime. Watkins stated that the bills of lading were not filled out properly and were "very, very generic." Some of the bills listed a first name with no last name; others had no name listed at all. When Watkins asked appellant if he allowed people to keep items in the vehicles, appellant spontaneously brought up marijuana, stating that if the vehicles smelled like marijuana, he would have a friend in law enforcement check them out for him. When Watkins asked appellant if he thought there was anything illegal in the vehicles, appellant responded, "Not really." Watkins testified that appellant appeared "nervous."[3] Watkins indicated during his testimony that he was suspicious of the Tahoe because it was the only one that appellant had picked up from a location other than a residence. According to Watkins, the fact that the Tahoe was a 1995 model with only 40, 000 miles on it also aroused his suspicion that it might be being used to transport drugs. Watkins also stated that he was curious why someone would pay to transport a vehicle he thought was worth less than the amount paid to transport it.

         Randy Couch, whom Watkins called in as backup after he located the marijuana, ) I testified that he found packaging materials similar to those in which the marijuana was wrapped in another vehicle on the carrier.[4] The vehicle also contained a substantial amount of marijuana, rendering it less likely that another person left it in the vehicle for appellant l to transport unaware of its presence. See Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994) (stating that the large amount and significant street value of contraband found in a mobile home was strong circumstantial evidence that it was not inadvertently left there by 1 someone else). Appellant had driven the vehicles on to the carrier and retained their keys, making them exclusively accessible to him while they were being transported. We also note that the paperwork for the Tahoe required appellant to perform a thorough inspection of the vehicle on pickup.

         Although appellant took the stand and attempted to provide an innocent explanation for the testimony elicited by the State, the jury was not required to believe his self-serving testimony. Brown v. State,374 Ark. 341, 288 S.W.3d 226 (2008). Taken as a whole and viewed in the light most favorable to the State, the evidence adduced at trial presents additional factors linking appellant to the marijuana sufficient for the jury to conclude that appellant constructively possessed the marijuana without resorting to ...


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