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Supreme Court of Arkansas

357 Ark. 545

Jonah Vaughn Jones  v.  State of Arkansas

Appeal from Sebastian Circuit Court

No. CR 03-1129. --- Delivered: May 27, 2004. 

Court Documents
Opinion of the Court
Dissenting Opinion
Imber
  1. MOTIONS–TEST FOR MOTION FOR DIRECTED VERDICT–SUBSTANTIAL EVIDENCE DEFINED.–The supreme court treats a motion for directed verdict as a challenge to sufficiency of the evidence; the test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; 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.
  2. APPEAL & ERROR–EVIDENCE ON APPEAL–STANDARD OF REVIEW.–On appeal, the supreme court views evidence in the light most favorable to the State, considering only evidence that supports the verdict.
  3. CRIMINAL LAW–CONTROLLED SUBSTANCES–CONSTRUCTIVE POSSESSION.–The State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under dominion and control of the accused.
  4. CRIMINAL LAW–POSSESSION OF CONTRABAND–HOW ESTABLISHED.–Constructive possession may be established by circumstantial evidence; when seeking to prove constructive possession, the State must establish that the defendant exercised care, control, and management over the contraband; this control can be inferred from the circumstances, such as proximity of the contraband to the accused, the fact that it is in plain view, and ownership of the property where the contraband is found.
  5. CRIMINAL LAW–JOINT OCCUPANCY OF VEHICLE–FACTORS TO BE CONSIDERED WHEN ESTABLISHING POSSESSION.–Joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession; 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 persons 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.
  6. EVIDENCE–CONSTRUCTIVE-POSSESSION CONVICTION–SUPPORTED BY SUFFICIENT EVIDENCE.–The third and fourth factors for establishing constructive possession, which factors outweigh the others, were satisfied: when the officer stopped the vehicle, appellant was driving the vehicle, and the officer testified that five plastic bags with white residue were found directly behind the driver's seat of the vehicle, and appellant exercised dominion and control over the vehicle; additionally, a syringe, which was described as drug paraphernalia by a detective, was found on appellant's person.
  7. MOTIONS–MOTION FOR DIRECTED VERDICT PROPERLY DENIED–NO ERROR FOUND.–Although there was no testimony that appellant acted suspiciously, the supreme court believed that Dodson v. State, 341 Ark. 42, 14 S.W.3d 489 (2000), applied because of the combined third and fourth factors in addition to drug paraphernalia being found on appellant's person; in viewing the evidence in the light most favorable to the State, the supreme court could not say that the trial court erred in denying appellant's motion for directed verdict on the constructive-possession charge.
  8. CRIMINAL LAW–CASE HERE DISTINGUISHABLE FROM HARBISON–ENOUGH SUBSTANCE WAS FOUND IN BAGS TO WEIGH AND TEST.–A usable-amount criteria was adopted in Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), where the court determined that the appellant was found in possession of a bottle containing only cocaine dust or residue, which amount was too small to weigh with equipment at the state crime laboratory; thus, the supreme court held that appellant could not be convicted of possession of cocaine; the present case was distinguishable from Harbison, because here there was a usable amount of methamphetamine; there was enough substance in the plastic bags to weigh and to test; appellant possessed a total of 0.8839 grams, or 883.9 milligrams, of a methamphetamine-nicotinamide compound, which the expert testified was a usable amount; based upon uncontroverted expert testimony, the supreme court concluded that the 883.9 milligrams constituted a usable amount under Harbison.
  9. EVIDENCE–MEASURABLE AMOUNT OF METHAMPHETAMINE FOR PURPOSE OF INFERRING INTENT–POSSESSION OF MORE THAN 200 MILLIGRAMS OF METHAMPHETAMINE FOUND SUFFICIENT TO MEET TEST OF SUFFICIENCY OF EVIDENCE.–In Piercefield v. State, 316 Ark. 128, 871 S.W.2d 348 (1994), the supreme court decided that, under Ark. Code Ann. § 5-64-401(a)(1)(i) (Supp. 2003), the "measurable amount of the methamphetamine for the purpose of inferring intent includes the amount of the pure drug plus all adulterants"; the court then held that appellant's possession of more than 200 milligrams of methamphetamine was sufficient to meet the test of sufficiency of the evidence.
  10. EVIDENCE–APPELLANT HERE POSSESSED 883.9 MILLIGRAMS OF METHAMPHETAMINE COMPOUND–MOTION FOR DIRECTED VERDICT PROPERLY DENIED.–Appellant possessed 883.9 milligrams of the methamphetamine compound, an amount that greatly exceeded the 200 milligrams of a methamphetamine compound that the court found sufficient in Piercefield; thus, the trial court did not err in denying appellant's motion for directed verdict on the methamphetamine-possession charge.
  11. CRIMINAL LAW–DRUG PARAPHERNALIA–SYRINGES.–Syringes are drug paraphernalia when in close proximity to methamphetamine.
  12. CRIMINAL LAW–MOTION FOR DIRECTED VERDICT ON PARAPHERNALIA CHARGE PROPERLY DENIED–EVIDENCE WAS OF SUFFICIENT FORCE OR CHARACTER TO COMPEL REASONABLE MINDS TO REACH CONCLUSION & PASS BEYOND SUSPICION & CONJECTURE.–The officer testified that during his pat-down search of appellant, he discovered a syringe in appellant's front pants pocket, a narcotics detective assigned to the Drug Enforcement Administration Task Force, testified that the syringe is most commonly used to inject methamphetamine, and on cross-examination, the detective testified that there was no residue in the syringe that would indicate that it had yet been used; under Ark. Code Ann. Code Ann. § 5-64-101(v)(11) (Repl. 1977), a syringe is deemed as drug paraphernalia when it is intended to be used to inject a controlled substance; additionally, under Ark. Code Ann. § 5-64-101(v), the syringe in appellant's pocket was in close proximity to the methamphetamine found in the plastic bags behind appellant's driver's seat; nothing in the record revealed that appellant possessed the syringe for a legitimate use; therefore, the evidence was of sufficient force or character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture under applicable precedent, and the motion for directed verdict was properly denied.
  13. CRIMINAL LAW–JURY INSTRUCTIONS–DO NOT TRUMP PLAIN LANGUAGE OF CRIMINAL STATUTES.–The criminal jury instructions do not trump the plain language of the criminal statutes.
  14. CRIMINAL LAW–AMCI 2D 9202 DOES NOT ACCURATELY REFLECT LAW IN EFFECT AFTER 1993–BECAUSE TRIAL COURT ERRONEOUSLY INSTRUCTED JURY UNDER AMCI 2D 9202 CASE WAS REMANDED FOR RESENTENCING IN PENALTY PHASE.–Under subsections (1), (3), and (5), respectively, Ark. Code Ann. § 5-4-104(d) (Supp. 2003) allows for imprisonment, payment of a fine, or imprisonment and a payment of a fine; however, AMCI 2d 9202 allows for the jury to consider only the possibility of imprisonment when the defendant is an habitual offender; it does not give the jury the option of considering only payment of a fine, as authorized by Ark. Code Ann. § 5-4-104(d)(3); thus, AMCI 2d 9202 does not accurately reflect the law in effect after 1993, when section (e)(4) of Ark. Code Ann. § 5-4-104 (1987), was repealed; the State conceded that the trial court's error with respect to this point on appeal regarding jury instructions; thus, the supreme court held that the trial court erroneously instructed the jury under AMCI 2d 9202; the convictions in the guilt phase were affirmed, and the case was remanded for resentencing in the penalty phase.

Appeal from Sebastian Circuit Court; J. Michael Fitzhugh, Judge; affirmed in part; reversed and remanded in part.

John W. Settle, for appellant.

Mike Beebe, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

[Opinion of the court by Justice RAY THORNTON. Dissenting opinion by Justice ANABELLE CLINTON IMBER, joined by Justices GLAZE and CORBIN.]

 

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