FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO.
60CR-16-516] HONORABLE JAMES LEON JOHNSON, JUDGE
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't
Att'y Gen., for appellee.
D. VAUGHT, JUDGE
Wayne Baltimore appeals a nonjury verdict entered by the
Pulaski County Circuit Court convicting him of possession of
cocaine, a Class D felony, in violation of Arkansas Code
Annotated section 5-64-419(b)(1)(A) (Repl.
2016). He was sentenced to two years of
probation. On appeal, Baltimore challenges the sufficiency of
the evidence supporting the possession-of-cocaine conviction.
We reverse and dismiss the conviction for possession of
Baltimore's bench trial, the evidence revealed that on
November 14, 2015, Officer Ryan Davidson of the North Little
Rock Police Department initiated a traffic stop of a gray
Toyota Camry after it failed to stop at an intersection and
made a right turn without signaling. When Davidson made
contact with the driver, Baltimore, he (Davidson) smelled
marijuana coming from inside the vehicle. The officer asked
Baltimore to step out of the vehicle, and as he stepped out,
the officer testified that he "observed . . . marijuana
. . . in plain view" on Baltimore's seat. Davidson
stated that there were two other passengers in the
vehicle-one in the front passenger seat and another in the
on these circumstances, Davidson conducted a search of
Baltimore's vehicle. Davidson testified that
"[d]uring the search, I located two crack rocks, I
believe in the front center cup holder." Davidson said
that there were "also small pieces of crack cocaine on
the floorboard." The officer testified that he gathered
and bagged the evidence and gave it to North Little Rock
police officer Jeffrey Elenbaas, whom Davidson had called for
testified that he received a call from Davidson to assist
with a traffic stop on November 14, 2015. Elenbaas stated
that he helped identify the occupants of the vehicle, took
custody of the evidence given to him by Davidson, and
delivered the evidence to the police property room. Elenbaas
further testified that as he stood "right next to the
[passenger side of the] vehicle, " he smelled the faint
odor of marijuana coming from the vehicle but did not see any
drugs in plain view. Gene Bangs, a forensic chemist with the
Arkansas State Crime Lab, confirmed that the evidence he
tested consisted of 0.1315 grams of marijuana and 0.0908
grams of cocaine.
on this evidence, the circuit court found Baltimore guilty of
possession of marijuana and possession of cocaine. On appeal,
Baltimore contends that the circuit court erred in denying
his motion to dismiss the possession-of-cocaine charge
because there was insufficient evidence that he
constructively possessed the cocaine.
motion to dismiss at a bench trial and a motion for a
directed verdict at a jury trial are both challenges to the
sufficiency of the evidence. See Ark. R. Crim. P.
33.1 (2016). In reviewing a challenge to the sufficiency of
the evidence, this court determines whether the verdict is
supported by substantial evidence, direct or circumstantial.
Foster v. State, 2015 Ark.App. 412, at 4, 467 S.W.3d
176, 179. Substantial evidence is evidence forceful enough to
compel a conclusion one way or the other beyond suspicion or
conjecture. Id., 467 S.W.3d at 179. We view the
evidence in the light most favorable to the verdict, and only
evidence supporting the verdict will be considered.
Id., 467 S.W.3d at 179.
unlawful for a person to possess a controlled substance. Ark.
Code Ann. § 5-64-419(a). Possession of less than two
grams of a Schedule I or Schedule II controlled substance
that is methamphetamine or cocaine is a Class D felony. Ark.
Code Ann. § 5-64-419(b)(1)(A).
not necessary for the State to prove literal physical
possession of drugs in order to prove possession. Mings
v. State, 318 Ark. 201, 207, 884 S.W.2d 596, 600 (1994).
Possession of drugs can be proved by constructive possession.
Id., 884 S.W.2d at 600. Constructive possession
requires the State to prove beyond a reasonable doubt that
(1) the defendant exercised care, control, and management
over the contraband and (2) the accused knew the matter
possessed was contraband. Walker v. State, 77
Ark.App. 122, 125, 72 S.W.3d 517, 519 (2002).
possession can be inferred when the drugs are in the joint
control of the accused and another. Mings, 318 Ark.
at 207, 884 S.W.2d at 600. However, joint occupancy of a
vehicle, standing alone, is not sufficient to establish
possession or joint possession. Id., 884 S.W.2d at
600. There must be some other factor linking the accused to
the drugs. Id., 884 S.W.2d at 600. Other factors to
be considered in cases involving automobiles occupied by more
than one person are (1) whether the contraband is in plain
view; (2) whether the contraband is found with the
accused's personal effects; (3) whether it is found on
the same side of the car seat as the accused was sitting or
in near proximity to it; (4) whether the accused is the owner
of the automobile or exercises dominion and control over it;
and (5) whether the accused acted suspiciously before or
during the arrest. Id., 884 S.W.2d at 600.
argues that the State failed to present substantial evidence
of three of the five factors linking him to the cocaine. He
contends that there was no evidence that the cocaine was
found in his personal effects, that he acted suspiciously
before or during the arrest, or that the cocaine was found in
plain view. He concedes that the State presented evidence of
two of the five linking factors-that he exercised dominion
and control over the vehicle (based on testimony from
Davidson that Baltimore was driving the vehicle when it was
pulled over) and that the cocaine in the front center cup
holder was found in close proximity to him. However, relying
on Walker, Baltimore argues that this evidence is
insufficient to raise a reasonable inference that he knew the
cocaine was in the front cup holder. He contends ...