FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCR-16-557] HONORABLE J. MICHAEL FITZHUGH, JUDGE
L. Dunagin, for appellant.
Rutledge, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., for appellee.
M. GLOVER, JUDGE.
Russell was convicted by a Sebastian County jury of
possession of drug paraphernalia and sentenced to six years
in prison. On appeal, he argues the evidence was insufficient
to support his conviction. We affirm.
trial, Cody Elliott, a K-9 officer with the Fort Smith Police
Department, testified he and his canine, Chico, were working
on January 22, 2016, when he noticed a vehicle that had a
cracked windshield. After running the tag, Elliott learned
the vehicle had no insurance, so he immediately turned around
and pursued the vehicle. When Elliott turned around, the
vehicle accelerated around the corner. Elliott momentarily
lost sight of the vehicle but then observed it traveling down
an alley at such a high rate of speed that the vehicle was
leaving the ground and "bouncing" down the alley.
When Elliot stopped the vehicle, the driver and the passenger
initially would not give their correct names; however,
Russell, the driver, eventually gave Elliott his name.
Elliott's request for consent to search the vehicle was
denied; so he had Chico conduct a free-air narcotic sniff
around the circumference of the vehicle. Chico indicated the
presence of a narcotic odor emanating from the vehicle. Once
Chico alerted, Elliott searched the vehicle, where he located
what he believed to be a broken methamphetamine pipe between
the driver's and passenger's seats. Both Russell and
the passenger denied the pipe belonged to them. Elliott then
placed both of them under arrest.
cross-examination, Elliott testified he did not recall whose
vehicle it was, but both Russell and the passenger told him
the vehicle was not theirs. Elliott said he found the pipe in
plain view between the seats.
Desrochers, a forensic chemist with the Arkansas State Crime
Lab, testified she tested the broken smoking device, and the
tests indicated methamphetamine had been used in the pipe.
The State rested after Desrochers's testimony.
counsel moved for a directed verdict, arguing that the State
failed to present sufficient evidence Russell possessed the
contraband or that he was in a position to exercise dominion
and control over the contraband. The circuit court denied the
motion. Russell rested without calling any witnesses and
renewed his motion for directed verdict, which was again
denied. The jury found Russell guilty and sentenced him to
six years in prison. Russell filed this timely appeal.
appeal from the denial of a motion for directed verdict is a
challenge to the sufficiency of the evidence. McCastle v.
State, 2012 Ark.App. 162, 392 S.W.3d 369. Our test for
determining the sufficiency of the evidence is whether the
verdict is supported by substantial evidence, direct or
circumstantial. Wells v. State, 2017 Ark.App. 174,
518 S.W.3d 106. Evidence is substantial if it is of
sufficient force and character to compel reasonable minds to
reach a conclusion and pass beyond suspicion and conjecture.
Id. Circumstantial evidence may constitute
substantial evidence to support a conviction if it excludes
every other reasonable hypothesis other than the guilt of the
accused; that determination is a question of fact for the
finder of fact. Holland v. State, 2017 Ark.App. 49,
510 S.W.3d 311. On appeal, the evidence is viewed in the
light most favorable to the State, and only the evidence
supporting the verdict is considered. McCastle,
supra. Weighing the evidence, reconciling conflicts
in testimony, and assessing credibility are all matters
exclusively for the trier of fact. Holland,
not necessary for the State to prove literal physical
possession of drugs to prove possession; possession may also
be proved by constructive possession. Dodson v.
State, 341 Ark. 41, 14 S.W.3d 489 (2000). Although
constructive possession can be implied when the drugs are in
the joint control of the accused and another, joint occupancy
of a vehicle, standing alone, is not sufficient to establish
possession or joint possession. Id. There must be
some other factor linking the accused to the drugs:
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 or
control over it; and (5) whether the accused acted
suspiciously before or during the arrest.
Id. at 48, 14 S.W.3d at 493.
argues that Walker v. State, 77 Ark.App. 122, 72
S.W.3d 517 (2002), is directly on point with the facts of his
case. We disagree, as Walker is clearly
distinguishable from the present case. The appellant in
Walker, was driving the vehicle, but the vehicle
belonged to the passenger, Darlene Ables. While a clear
plastic bag found on Ables's person during a search
tested positive for methamphetamine residue, a search of
Walker did not reveal any contraband on his person. A canine
search of the vehicle revealed a pair of work gloves under
the driver's seat that contained a ball of tinfoil with
methamphetamine inside of it. Appellant was convicted in a
bench trial of possession of a controlled substance and
possession of drug paraphernalia. Our court reversed the
conviction, holding that while the glove was found on
Walker's side of the vehicle and Walker was the driver,
neither of those factors raised a reasonable inference that
Walker had knowledge ...