Gill v. State , 2017 Ark. App. LEXIS 31 ( 2017 )

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ARKANSAS COURT OF APPEALS
DIVISION IV
No.CR-16-364
Opinion Delivered: January 18, 2017
BOBBY JOE GILL APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT,
[NO. 23CR-15-723]
V.
HONORABLE CHARLES E.
CLAWSON, JR., JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED; MOTION TO BE
RELIEVED GRANTED
KENNETH S. HIXSON, Judge
Appellant Bobby Joe Gill was convicted in a bench trial of possession of
methamphetamine, possession of drug paraphernalia, felon in possession of a firearm, and
simultaneous possession of drugs and a firearm. For these offenses, Mr. Gill was sentenced
to twenty years in prison. Mr. Gill now appeals.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k)(1) of the
Rules of the Arkansas Supreme Court, appellant’s counsel has filed a no-merit brief wherein
counsel asserts that this appeal is wholly without merit. Appellant’s counsel’s abstract, brief,
and addendum contain the adverse rulings and an explanation as to why each ruling is not
a meritorious ground for reversal. Appellant’s counsel has also filed a motion to be relieved. 1
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In appellant’s counsel’s motion to be relieved, counsel asserts that he has filed the
motion under protest because our clerk instructed him to file it, and he asks that his motion
be denied. Counsel acknowledges that our Anders procedure “apparently” requires a motion
to withdraw, but states that Rule 4-3(k)(1) does not explicitly require one. Counsel
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Mr. Gill was provided with a copy of his counsel’s brief and notified of his right to file a list
of pro se points for reversal, but he has filed no points. Having reviewed the record before
us, we conclude that this appeal is wholly without merit and affirm appellant’s convictions.
Officer James Kallen Lacy of the Conway Police Department was the only witness
to testify at the bench trial. Officer Lacy testified that, at about 3:30 a.m. on September 22,
2015, he stopped a truck being driven by Mr. Gill because a tail light was out. After the
stop, Officer Lacy noticed that Mr. Gill was extremely nervous, and he asked Mr. Gill if he
could search him for weapons. Mr. Gill consented, and during the search Officer Lacy
found an automatic knife in Mr. Gill’s pocket, as well as a gun holster in his waistband.
Officer Lacy contacted the Arkansas Crime Information Center and learned that Mr. Gill
was driving on a suspended license. Officer Lacy then arrested Mr. Gill for driving on a
suspended license and placed him in the back of the patrol car.
After Mr. Gill was taken into custody, Officer Lacy discovered a loaded pistol in
plain view on the floorboard of the truck within the reach of the driver. Officer Lacy called
in the serial number and was informed that the gun was stolen. Officer Lacy and his partner
then searched the rest of the vehicle. The police found a leather handbag in the front of
the truck between the driver’s and passenger’s seats. The handbag contained a gun box, and
the gun box contained a purple liquid in a glass smoking device, as well as a white crystalline
contends that requiring a motion to withdraw, even in an Anders case, puts the criminal
defense bar in disrepute with their clients and client’s families, and at a minimum creates the
appearance of impropriety from the client’s perspective. However, our supreme court held
in Blue v. State, 287 Ark. 345, 698 S.W.2d 302 (1985), that in order to file a no-merit brief,
the appellant’s attorney must also file a motion for permission to withdraw as counsel.
Therefore, our clerk was correct in advising appellant’s counsel that he was required to
accompany his no-merit brief with a motion to withdraw.
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substance. These items were transported to the crime lab, and the purple liquid and white
crystalline substance both tested positive for methamphetamine. In addition, the gun was
found to fit the holster being worn by Mr. Gill. The State also introduced into evidence
several prior felony convictions against Mr. Gill.
In this no-merit appeal, Mr. Gill’s counsel accurately states that the only adverse
rulings below were the trial court’s denials of his motions for dismissal with respect to each
of the four offenses for which he was convicted. A motion for dismissal in a bench trial is
a challenge to the sufficiency of the evidence. Doty v. State, 2015 Ark. App. 193. On
appeal, the test for determining the sufficiency of the evidence is whether the conviction is
supported by substantial evidence, direct or circumstantial. Stone v. State, 2015 Ark. App.
543, 473 S.W.3d 29. In making this determination, the evidence is reviewed in the light
most favorable to the State, considering only the evidence that supports the verdict.
Thornton v. State, 2014 Ark. 157, 433 S.W.3d 216. Substantial evidence is evidence of
sufficient force and character to compel a conclusion one way or the other beyond suspicion
or conjecture. Id.
In this case the only basis for Mr. Gill’s dismissal motions was that there was
insufficient evidence that he was in possession of any of the contraband. In Mr. Gill’s
counsel’s brief, he correctly asserts that there can be no meritorious challenge to the trial
court’s determination that he was in possession of the firearm, methamphetamine, and drug
paraphernalia.
Arkansas Code Annotated section 5-1-102(15) (Repl. 2013) defines “possession” as
“to exercise actual dominion, control, or management over a tangible object.” The State
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does not have to prove that the defendant physically held the contraband. Conley v. State,
2014 Ark. 172, 433 S.W.3d 234. Constructive possession, which is the control or right to
control the contraband, is sufficient. Id. Constructive possession can be implied when the
contraband is found in a place immediately and exclusively accessible to the defendant and
subject to his control. Id.
The testimony in this case showed that Mr. Gill was driving the truck and was the
only occupant when he was stopped by the police. Subsequent to the stop, the police found
a loaded pistol in plain view on the floorboard within reach of the driver. In the middle of
the front seat was a handbag containing quantities of methamphetamine and a smoking
device. All of the contraband was immediately accessible to Mr. Gill and in his exclusive
control. Therefore, Mr. Gill’s convictions for possession of methamphetamine, possession
of drug paraphernalia, felon in possession of a firearm, and simultaneous possession of drugs
and a firearm were supported by substantial evidence, and there could be no meritorious
argument to the contrary on appeal.
Based on our review of the record and the brief presented, we conclude that there
has been compliance with Rule 4-3(k)(1) and that this appeal is without merit.
Consequently, appellant’s counsel’s motion to be relieved is granted, and the judgment is
affirmed.
Affirmed; motion to be relieved granted.
GRUBER, C.J., and VIRDEN, J., agree.
John Wesley Hall and Sarah M. Pourhosseini, for appellant.
No response.
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