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Terry v. State

Court of Appeals of Arkansas, Division IV

September 26, 2018



          William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rachel Kemp, Ass't Att'y Gen., and Brad Aldridge, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy Att'y Gen., for appellee.


         On April 26, 2017, the State filed an eight-count information against Calvin Wallace Terry. The charges included seven felonies[1] and one misdemeanor. The circuit court dismissed the misdemeanor charge at the start of Terry's bench trial. Of the seven felonies, Terry was convicted of five. Terry appeals only the judgment of the Pulaski County Circuit Court denying his motion to dismiss the charges of (1) possession of methamphetamine and (2) simultaneous possession of methamphetamine and a firearm. We affirm.

         On March 12, 2017, Deputy Martelle McDonald of the Pulaski County Sheriff's Office initiated a late-night traffic stop on the vehicle driven by Terry in North Little Rock because the vehicle's license-plate light was not operational. Terry was the only person in the vehicle. After Deputy McDonald requested Terry's driver's license, Terry drove off, and a police pursuit ensued.

         The pursuit reached a speed of 85 miles per hour but decreased to 45 miles per hour in a residential area along Smalley Road. According to Deputy McDonald, he witnessed Terry throw a black object out of a window on the vehicle's passenger side along the south side of Smalley Road during the pursuit. The pursuit ended on Smalley Road when Terry surrendered. The pursuit lasted approximately ten minutes. Terry was subsequently arrested and taken to the Pulaski County Detention Facility after Deputy McDonald had completed an inventory search of the vehicle and waited for assistance.

         During the search of Terry's person and vehicle, Deputy McDonald found methamphetamine residue, marijuana, and drug paraphernalia. Additionally, the detention-facility staff discovered a nylon gun holster deeply hidden in Terry's pants. After Terry's processing at the detention-facility, Deputy McDonald returned to the area where he had observed the black object being thrown out of the vehicle's window. There, Deputy McDonald discovered a bag of narcotics, which later tested positive for methamphetamine, and a gun identified as a .45-caliber Glock 30.

         Terry waived his right to a jury trial, and his bench trial occurred on September 18, 2017. After the State rested its case, Terry moved to dismiss some of the charges against him, including the two felony charges at issue in this appeal, because he claimed that the State did not show any evidence that he was responsible for throwing the methamphetamine and a firearm out of a window on the passenger side of the vehicle. However, the circuit court denied the motion and found Terry guilty of five felony charges. The circuit court also found that Terry was a habitual offender and sentenced him to a term of fifteen years' imprisonment. The circuit court entered its sentencing order on October 21, 2017, and this timely appeal followed on November 1.

         On appeal, Terry argues that the circuit court erred in denying his motion to dismiss the two felony charges at issue-possession of methamphetamine and simultaneous possession of methamphetamine and a firearm-because the State failed to introduce substantial circumstantial evidence that he actually or constructively possessed the contraband.

         A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial, is considered a challenge to the sufficiency of the evidence. Cora v. State, 2009 Ark.App. 431, at 3, 319 S.W.3d 281, 283. This court will affirm a circuit court's denial of the motion if there is substantial evidence, either direct or circumstantial, to support the verdict. Id. Substantial evidence is defined as evidence forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Id. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict is considered. Id.

         Circumstantial evidence may provide the basis for a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable explanation of the crime. Block v. State, 2015 Ark.App. 83, at 5, 455 S.W.3d 336, 340. Whether the circumstantial evidence would support any other theory is for the fact-finder to decide. Id.

         When possession of contraband is an element of the offense, the State is not required to prove literal physical possession. Id. This court looks to whether the contraband was located in a place that was under the dominion and control of the accused. Id. Constructive possession can be implied when the contraband was found in a place immediately and exclusively accessible to the accused and subject to the accused's control. Id. In other words, constructive possession may be established by circumstantial evidence. Duggar v. State, 2013 Ark.App. 135, at 3, 427 S.W.3d 77, 80.

         To prove constructive possession, the State must establish that the defendant exercised "care, control, and management over the contraband." Block, 2015 Ark.App. 83, at 6, 455 S.W.3d at 340. There must be some evidence that the accused had knowledge of the presence of the contraband. Id. The defendant's control over and knowledge of the contraband can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, the ownership of the property where the contraband is found, and the accused's suspicious behavior. Id. Location of the contraband in close proximity to the defendant has been held to be a sufficient linking factor to support a constructive-possession conviction. Id. The Arkansas ...

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