APPEAL
FROM THE GRANT COUNTY CIRCUIT COURT [NO. 27CR-18-7] HONORABLE
CHRIS E WILLIAMS, JUDGE
Tara
Ann Schmutzler, for appellant.
Leslie
Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't
Att'y Gen., for appellee.
BART
F. VIRDEN, JUDGE
A Grant
County jury found appellant Anthony Bens guilty of possession
of a firearm by certain persons (felon) and tampering with
evidence. The jury sentenced Bens as a habitual offender to
seven years' imprisonment, and he was fined $300 for the
misdemeanor offense of tampering with evidence. Bens
challenges only the possession-of-a-firearm conviction and
argues that the evidence was insufficient to support the
conviction. We affirm.[1]
I.
Trial Testimony
The
following is a summary of the testimony at trial. On December
21, 2017, law enforcement officers responded to a report of
two males fighting in the street. When the officers arrived
at the scene, two men were in the street and began walking
toward a vehicle parked at the entrance to an apartment
complex. Deputy David Ponder with the Grant County
Sheriff's Department testified that, when he arrived at
the scene with his blue lights on, Bens had "[given him]
a wave" and had gotten into his vehicle. Deputy Ponder
ordered him to get out of the vehicle, but Bens did not
comply until after the second command. Officer Danny Clark
with the Sheridan Police Department, looking through the open
window on the passenger's side of the car, noticed a
"blunt" on the console. Corporal Tommy Holcomb with
the Grant County Sheriff's Department confirmed that it
was a marijuana "blunt," but he also saw an open
gun case on the passenger's seat. There was a loaded
magazine in the gun case, but there was no gun. When Corporal
Holcomb asked Bens about the blunt, Bens ran around to the
driver's side of the car. With the officers yelling at
him not to get in the car, and even drawing their weapons,
Bens opened the driver's-side door, grabbed the blunt,
and ate it. Corporal Holcomb then saw part of a handgun under
the driver's seat.[2] Bens was arrested, and Corporal Holcomb
secured the firearm-a .40-caliber Glock-which was loaded with
a full magazine and a cartridge in the chamber. A video of
the incident was played for the jury. Defense counsel moved
for a directed verdict, and the trial court denied it as to
the felon-in-possession-of-a-firearm charge.
Catherine
Winfrey, Bens's mother, testified that the title to the
vehicle in which the firearm was found is in her name but
that Letitia Cranford, Bens's fiancée, is the one
who primarily drives the car. Cranford testified that she had
asked Bens to take her to work that day because it was foggy.
She said that she had bought the firearm for protection and
kept it under the driver's seat. She said that she
typically puts the gun back into its case and takes the case
inside her house but that she had forgotten to do that the
night before Bens was stopped by police because she had
gotten home so late. Bens testified that he did not realize
that the gun, or even the gun case, was in the car that day.
Bens said that the gun case was not on the passenger's
seat because Cranford had been sitting there and that the
police must have put it there. He said that he was aware that
Cranford had a gun but that she kept it in a locked box in
their apartment. He insisted that he is "a pretty big
guy" and "[doesn't] need a gun." Defense
counsel then renewed his directed-verdict motion, and it was
again denied. The jury convicted Bens of felon in possession
of a firearm and sentenced him to seven years'
imprisonment.
II.
Discussion
Bens
argues that the evidence was insufficient to support his
conviction for felon in possession of a firearm because the
State failed to prove that he exercised actual or
constructive possession of the firearm. The State argues that
Bens's argument is not preserved for review because he
did not use the word "constructive" in his
directed-verdict motion at the close of the State's case.
Rule 33.1(c) of the Arkansas Rules of Criminal Procedure
provides that a motion for directed verdict based on
insufficiency of the evidence must specify the respect in
which the evidence is deficient. In his initial
directed-verdict motion, Bens argued that he did not possess
the firearm in that the firearm was not visible, that he did
not own the firearm, and that he did not own the car in which
the firearm was found. At the close of all the evidence, Bens
moved to "renew" his motion for a directed verdict
and further argued that the State had failed to prove actual
or constructive possession. We conclude that the broad term
"possession" encompasses the more precise term
"constructive possession," because here, Bens
essentially argued constructive possession in his initial
directed-verdict motion. Under these circumstances, we hold
that Bens's motions are sufficient to preserve his
argument for review.
A
motion for a directed verdict at a jury trial is a challenge
to the sufficiency of the evidence. Martin v. State,
2019 Ark.App. 19, 567 S.W.3d 558. In reviewing a challenge to
the sufficiency of the evidence, this court determines
whether the verdict is supported by substantial evidence,
direct or circumstantial. Id. Substantial evidence
is evidence forceful enough to compel a conclusion one way or
the other beyond suspicion or conjecture. Id. We
view the evidence in the light most favorable to the verdict,
and only evidence supporting the verdict will be considered.
Id.
No
person who has been convicted of a felony shall possess or
own any firearm. Ark. Code Ann. § 5-73-103(a)(1) (Repl.
2016). A showing of constructive possession, which is the
control or right to control the contraband, is sufficient to
prove possession of a firearm. White v. State, 2014
Ark.App. 587, 446 S.W.3d 193. Constructive possession may be
implied when the contraband is found in a place immediately
and exclusively accessible to the accused and subject to his
or her control. Id. Constructive possession may be
established by circumstantial evidence, but when such
evidence alone is relied on for conviction, it must indicate
guilt and exclude every other reasonable hypothesis.
Id. The credibility of witnesses is an issue for the
jury and not the court. Pokatilov v. State, 2017
Ark. 264, 526 S.W.3d 849. 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
evidence. Id.
While
Bens relies on Lambert v. State, 2017 Ark. 31, 509
S.W.3d 637, and Loggins v. State, 2010 Ark. 414, 372
S.W.3d 785, those cases are distinguishable in that they are
joint-occupancy cases in which additional factors must be
established to link the accused to the contraband. See
also Pokatilov, supra (although Pokatilov was
the only occupant of an automobile carrier, the supreme court
analyzed it as a joint-occupancy case because drugs were
found in a vehicle owned by another that was being
transported by Pokatilov's automobile carrier). Although
Bens's mother owned the vehicle and his fiancée
was the primary driver of it, Bens was the sole occupant of
the vehicle at the time of his arrest. In Polk v.
State, 348 Ark. 446, 73 S.W.3d 609 (2002), the supreme
court held that a single occupant in a borrowed car or a car
owned by another is subject to only the general inquiry for
constructive possession and that the State does not need to
inquire into the elements for joint occupancy.
The
firearm was under the driver's seat, so it was
immediately and exclusively accessible by Bens and subject to
his control. Constructive possession can be implied at that
point. The jury was not required to believe Bens's
self-serving testimony that he had no knowledge that the
firearm was in the vehicle, especially given that the
evidence showed that the gun case in which the firearm had
been kept was open and empty on the passenger's seat. We
hold that ...