FROM THE LONOKE COUNTY CIRCUIT COURT [43CR-14-167] HONORABLE
SANDY HUCKABEE, JUDGE
Rosenzweig, for appellant.
Rutledge, Att'y Gen., by: Amanda Jegley, for appellee.
F. WYNNE, ASSOCIATE JUSTICE
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.
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.
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
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.
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.
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.
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,
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.
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." 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.
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. 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.
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 ...