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Strickland v. State5/12/2004
ant physically possessed contraband. It is sufficient if the State proves that the defendant constructively possessed the contraband, that is, that the contraband was under the dominion and control of the defendant. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Joint occupancy of a vehicle, alone, is not sufficient to establish joint possession. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). In the case of joint possession, the State must prove some additional factor linking the defendant to the contraband in order to show that the defendant exercised care, control, and management over the contraband, and that the defendant knew the matter possessed was contraband. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998).
Other factors to be considered in cases of joint occupancy of an automobile include: 1) whether the contraband was found in plain view; 2) whether the contraband is found with the defendant's personal effects; 3) whether the contraband is found on the same side of the vehicle or in near proximity to it; 4) whether the accused is the owner of the automobile or exercises dominion or control over it; and 5) whether the accused acted suspiciously before or during the arrest. Bradley v. State, supra.
Appellant maintains that the circuit court erred in finding that he constructively possessed drug paraphernalia because the State failed to show any additional link between him and the contraband. He notes that his nervous behavior was explained by the fact that he had just driven the wrong way on the highway. Further, appellant notes that the drug test indicated that appellant had not used any drugs that day, and that Marx's testimony cannot be trusted because he testified that he trusted his opinion better than scientific evidence.
We hold that the trial court did not err in revoking appellant's suspended sentence. The State did not fail to establish an additional linking factor. To the contrary, the evidence established several linking factors. First, appellant admitted that he owned the car and was driving it. Second, the jacket containing most of the contraband was found on the same side of the vehicle or in near proximity to appellant because it was found in the seat behind appellant. Third, appellant acted suspiciously before the arrest in that he and Watson left the feed store in a rush after they saw Marx; he drove the wrong way down the highway, and he appeared nervous and agitated when Marx spoke with him. The fact that Watson's hands were red and peeling may support an inference that Watson had been exposed to red phosphorus; however, this does not negate the fact that appellant, subsequent to his arrest, exercised dominion and control over the jacket by having someone else retrieve the jacket from impound.
While the foregoing evidence might not support a conviction for possession of drug paraphernalia beyond a reasonable doubt, on a preponderance standard, we hold that the it was a sufficient basis for the circuit court to revoke appellant's suspended sentence.
Affirmed.
Stroud, C.J., and Pittman, J., agree.
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