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Kimbrell v. State6/16/2004
NOT DESIGNATED FOR PUBLICATION
The appellant, Harold Keith Kimbrell, was charged by information with the offenses of possession of methamphetamine with intent to deliver, possession of drug paraphernalia with intent to use, possession of marijuana, driving while intoxicated, and simultaneous possession of drugs and a firearm. In a bench trial, the court found appellant guilty of the lesser-included offense of possession of methamphetamine; he was found guilty as charged on the remaining counts. He was sentenced to concurrent terms of imprisonment totaling ten years.
On appeal, appellant contends that there is insufficient evidence to establish that he committed the offense of simultaneous possession of drugs and a firearm. We affirm.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.
Arkansas Code Annotated section 5-74-106(a)(1) (Repl. 1997) provides that no person shall unlawfully commit a felony violation of § 5-64-401 (possession, manufacture, delivery, possession with intent to manufacture or deliver a controlled substance) while in possession of a firearm. In order to obtain a conviction under this section, the State must prove two elements: (1) that the defendant possessed a controlled substance and a firearm; and (2) that a connection existed between the firearm and the controlled substance. Vergara-Soto v. State, 77 Ark. App. 280, 74 S.W.3d 683 (2002). In Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998), the supreme court found sufficient evidence supporting a conviction for this crime where the appellant was the sole occupant of a car that contained drugs and a firearm in close proximity to one another.
The record in this case shows that appellant was found asleep at the wheel of his vehicle at 5:00 a.m. on June 9, 2002, by Officer Scott Baker of the Jonesboro Police Department. The vehicle was sitting in the left-turn lane at an intersection with its engine on and its blinker flashing. Appellant was arrested for driving while intoxicated after the officer noticed the strong odor of intoxicants, after appellant admitted that he had been drinking, and after he failed to satisfactorily perform field-sobriety tests. The officer found a marijuana cigarette in appellant's shirt pocket. In the vehicle, a partially-smoked marijuana cigarette was sitting on the driver's seat. A loaded Remington 870 Express Magnum shotgun was protruding from under the seat. There were additional shotgun shells in the truck. The officer also found a gray, zippered bag that was wrapped inside a t-shirt and sitting under the fold of the driver's-seat armrest. This bag contained five plastic bags of crystal methamphetamine and a bag of marijuana. The methamphetamine weighed roughly one ounce, as did the marijuana. Various items of drug paraphernalia were also seized, including rolling papers, hemostats, a glass tube, and a pipe for smoking marijuana.
Appellant testified that the items of contraband were his, but he maintained that he possessed the methamphetamine for his own personal use. He also testified that it was his lifestyle to keep a gun under the seat but that he had not used the weapon since the hunting season the previous November.
Appellant contends tha
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