Nowden v. State

Judith Rogers, Judge. The appellant, Lucky Nowden, appeals his conviction at a bench trial of possession of a controlled substance (marijuana), a violation of Ark. Code Ann. § 5-65-401 (1987). Upon conviction, the appellant was sentenced to four years in prison with three years suspended. For reversal, appellant argues that the evidence was insufficient to support his conviction. We disagree and affirm. The issue on appeal is whether the verdict is supported by substantial evidence. Substantial evidence, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Upon review, it is necessary to ascertain only the evidence favorable to the appellee and only that testimony which actually supports the verdict of guilt. Id. The record reflects that on June 28, 1988, the appellant was driving down Roosevelt Road in Little Rock, Arkansas, in a pickup truck with a friend, when he was stopped by State Trooper Dale Cook. There was testimony that neither appellant nor his friend was the owner of the truck. At trial, Cook testified that he noticed that the decals on the license plate were peeling off, and a check revealed that the plate had been issued to another vehicle. Cook stated that when he had the vehicle stop, the appellant exited the truck and came straight to the patrol car “like he did not want me at the truck.” He also said that the appellant appeared to be nervous. Soon afterwards, local police officers stopped to offer assistance. Officer Charles Ray of the Little Rock Police Department testified that when he arrived, Trooper Cook was speaking with the appellant and that the passenger had stepped out of the truck. In checking the truck for weapons, Officer Ray related that he glanced through the window and observed a brown grocery sack sitting on the floorboard on the passenger side of the truck. He said that he could plainly see a large amount of green vegetable matter in the sack. The contents of the sack was later determined to be marijuana. In describing the interior of the truck, Ray stated that it was not cluttered, and that the truck had an automatic transmission with no console or other barrier between the seats. After this discovery Ray alerted Trooper Cook and the appellant and the passenger were arrested. Ray further testified that the grocery sack contained forty-seven individually wrapped plastic baggies of marijuana. In order to sustain a conviction for possession of a controlled substance, the case law is clear that actual or physical possession of the contraband is not required. Sweat v. State, 25 Ark. App. 60, 752 S.W.2d 49 (1988). In Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990), the supreme court set out the applicable standards governing proof of possession when there is evidence of joint occupancy, as follows: If this conviction is to be affirmed, it must be shown that the appellant possessed the marijuana. Constructive possession is a sufficient showing. Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Where, however there is joint occupancy of premises, then some additional factor must be present linking the accused to the contraband. The state must prove that the accused exercised care, control and management over the contraband and that the accused knew that it was in fact contraband. Id. at 616, 786 S.W.2d at 822 (citation omitted). In Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988), the supreme court recognized cases from other jurisdictions that have held that the prosecution can sufficiently link an accused to contraband found in an automobile occupied by more than one person by showing additional facts and circumstances indicating his knowledge and control of the illegal substance. From the cases cited, the court identified certain factors from which constructive possession can be inferred, such as: (1) that the contraband was in plain view; (2) that the contraband was on the defendant’s person or with his personal effects; (3) that the contraband was found on the same side of the car seat as the defendant was sitting or in immediate proximity to him; (4) that the accused was the owner of the automobile in question, or that he exercised dominion and control over it; and (5) that the accused acted suspiciously before or during arrest. In Plotts, the driver of the vehicle was arrested for reckless driving and driving without a license. As the officer was putting handcuffs on the driver, a package visibly containing syringes fell onto the ground. The officer then went to the other side of the vehicle to question the appellant, who was the passenger and owner of the car. The officer looked into the backseat of the car and saw a bag of marijuana protruding out of a clothes bag. When the officer asked appellant if he could search the vehicle, appellant replied, “You can search the vehicle, any part of the vehicle you want to. If there are any drugs in there, I want them out.” Upon searching the clothes bag, the officer found several bags of marijuana. The court held that the fact that the officer found marijuana lying in plain view, that appellant was the owner of the vehicle, and that appellant made a suspicious statement at the time of the stop were sufficient additional circumstances to link appellant to the contraband. Applying the factors set out in Plotts to the case at bar, the appellant was the driver of a vehicle in which contraband was found. The marijuana was contained in an open sack which was readily visible to the officer who made the discovery. Although the sack was located on the floorboard on the passenger side, from where the appellant was sitting, he had an unobstructed view of the sack which was in an area immediately accessible to him. Additionally, the appellant exhibited suspicious behavior just after the stop and while he was being questioned by the officer. It was said that he immediately exited the truck acting as if he did not want the officer near it, and that he appeared nervous. The evidence thus indicates that appellant was exercising dominion and control of a truck where contraband was found in plain view and in his immediate vicinity. These facts, coupled with his outwardly suspicious behavior, sufficiently established evidence linking appellant to the contraband, such that it can be inferred that he had knowledge and control over the illegal substance. Viewing the evidence in the light most favorable to the state, we cannot say that appellant’s conviction for possession of a controlled substance is not supported by substantial evidence. Affirmed. Cracraft, Cooper and Jennings, JJ., dissent.