Pokatilov v. State , 2017 Ark. App. LEXIS 163 ( 2017 )

Cite as 2017 Ark. App. 155
ARKANSAS COURT OF APPEALS
DIVISIONS I, II & III
No. CR-16-522
Opinion Delivered March 8, 2017
ALEXANDER POKATILOV APPEAL FROM THE LONOKE
APPELLANT COUNTY CIRCUIT COURT
[NO. 43CR-14-167]
V.
HONORABLE SANDY HUCKABEE,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
A Lonoke County jury found Alexander Pokatilov guilty of possession of a Schedule
VI controlled substance (marijuana) with the purpose to deliver. On appeal, Pokatilov argues
that (1) there was insufficient evidence to support his conviction; (2) the circuit court abused
its discretion by rejecting his proffered instruction on constructive possession; (3) the circuit
court abused its discretion by refusing to reinstruct the jury with his proffered instruction on
constructive possession; and (4) the circuit court erred in denying his motion to suppress
evidence seized as a result of an illegal search. We affirm.
Pokatilov was an owner-operator of an automobile-transport carrier that moved
vehicles from coast to coast. On March 6, 2014, he was carrying six vehicles when he was
pulled over by Officer Jeremy Watkins of the Arkansas Highway Police on Interstate 40 in
Lonoke County. At trial, Watkins testified that he observed a large commercial carrier loaded
with vehicles drive several times over the white line onto the shoulder where there was ice left
Cite as 2017 Ark. App. 155
over from a snowstorm. Watkins stopped the vehicle.1 Watkins advised Pokatilov that he was
not keeping his vehicle in his lane, and Pokatilov became argumentative and said he was
driving fine.
Watkins testified that he was certified by the Department of Transportation to conduct
inspections on commercial vehicles and that it is standard procedure to obtain and review the
truck and trailer registration, commercial driver’s license, logbooks, and bills of lading on each
automobile being transported. He instructed Pokatilov to produce his paperwork. According
to Watkins, several things in the paperwork aroused his suspicion. He found excessive
downtime in the logbooks, which was uncommon because carriers do not get paid for
downtime. He stated that the logbooks showed Pokatilov to be off duty from February 9 to
February 18 and from February 21 to March 3. Watkins also testified that the bills of lading
were not filled out properly; they seemed “very, very generic.” Some showed a customer’s first
name and no last name. Others did not have a customer name on them at all.
Pokatilov told Watkins that he had loaded the cars onto the trailer and that he knew
there were items in some of the vehicles. Watkins also thought Pokatilov, who was sitting in
the patrol car by this time, seemed nervous. When Watkins asked Pokatilov if he allowed
people to put personal belongings in the cars he hauled, Pokatilov brought up the topic of
marijuana, stating that if a vehicle he was carrying smelled like marijuana, he would report it
to law enforcement. Watkins asked, “You don’t think there’s anything illegal in any of them?”
Pokatilov responded, “Not really.” Watkins testified that these indicators of criminal activities
1The encounter with Pokatilov was videotaped and played at trial.
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caused him to ask Pokatilov if he minded if Watkins searched the vehicles on the carrier, and
Pokatilov answered, “Nope, not at all.”
One vehicle stood out to Watkins—a 1995 Chevy Tahoe. Watkins was suspicious of
this vehicle because it was the only one Pokatilov had picked up at a shopping center; the rest
had been picked up at homes. Watkins also found it odd that someone would pay more than
the 1995 Tahoe’s value to have it hauled across the country. Watkins searched the Tahoe first
and within minutes found two Rubbermaid containers and a Home Depot box in the cargo
area. Watkins opened the containers and found multiple bags of what appeared to be
marijuana.
Gene Bangs, a forensic chemist with the Arkansas State Crime Lab, testified that he
tested twelve bags submitted by Watkins, that they were positive for marijuana, and that the
marijuana weighed 32.37 pounds. Bangs testified that marijuana is a Schedule VI controlled
substance.
Pokatilov testified that his business is called AAA Cargo Transport and that his wife
works as a dispatcher and negotiates with brokers. He said that brokers had compiled the
information about the vehicles on the dispatch sheets. He completed each bill of lading when
he picked up a vehicle. He said filling out the bills of lading was redundant when all of the
necessary information was on the dispatch sheet. He stated that he picked up six cars in
California and Nevada for transport to North Carolina. He explained that he had excessive
downtime in Las Vegas because his carrier had broken down. He said he had to order parts,
wait for them to be delivered, and wait for the repair.
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Pokatilov said that it was not unusual to pick up vehicles from somewhere other than
a residence and that loading a vehicle in a parking lot was sometimes necessary to avoid
damage to the vehicle. He testified that he did not think it was unusual to be hauling a nineteen-
year-old vehicle and that he did not ask why people wanted their vehicles moved. He said that
he had the keys to all of the vehicles and inspected them but that he did not look inside
containers in the vehicles. After Watkins asked for consent to search the vehicles on the
carrier, Pokatilov testified that he told Watkins, “Go for it. They’re not my cars. I’m just a
transporter.” He denied any knowledge of the presence of marijuana in the Tahoe he was
transporting, and he claimed that he was not nervous at all. The jury convicted him and
sentenced him to five years’ probation and a fine of $5,000. This appeal followed.
Pokatilov’s first point on appeal is a challenge to the sufficiency of the evidence
supporting his conviction. When reviewing the sufficiency of the evidence, we determine
whether there is substantial evidence to support the verdict, viewing the evidence in the light
most favorable to the State. Barrera v. State, 2012 Ark. App. 533, at 4. Substantial evidence is
that which is of sufficient force and character that it will, with reasonable certainty, compel a
conclusion one way or the other, without resorting to speculation or conjecture. Id.
Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other
reasonable hypothesis consistent with innocence. Id. The question of whether the
circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to
decide. Id.
Pokatilov was convicted of possession of a Schedule VI controlled substance with the
purpose to deliver pursuant to Arkansas Code Annotated section 5-64-436(a) (Supp. 2013). It
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is a Class B felony if the person possessed twenty-five pounds or more but less than one-
hundred pounds by aggregate weight, including an adulterant or diluent, of a Schedule VI
controlled substance. Ark. Code Ann. § 5-64-436(b)(4).
Actual possession of contraband is established if the State can show that an individual
had direct physical control over it. Craig v. State, 314 Ark. 585, 589, 863 S.W.2d 825, 827 (1993).
The State does not have to establish actual physical possession; rather, possession may be
proved by constructive possession, which is the control or right to control the contraband.
Polk v. State, 348 Ark. 446, 452, 73 S.W.3d 609, 614 (2002). Constructive possession may be
inferred when contraband is found in a place immediately and exclusively accessible to the
accused and subject to his control. Id. at 453, 73 S.W.3d at 614. The State satisfies its burden
of showing constructive possession if it shows that contraband was found in a location under
the accused’s dominion and control. Id., 73 S.W.3d at 614.
The majority of Pokatilov’s argument under this point on appeal is that there was
insufficient evidence presented at trial to prove that he knowingly possessed the marijuana. He
cites three cases for support: Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Darrough v.
State, 322 Ark. 251, 908 S.W.2d 325 (1995); and Boston v. State, 69 Ark. App. 155, 12 S.W.3d
245 (2000).
Fultz and Darrough are distinguishable because they are joint-occupancy cases and
require the additional element that the defendant knew the matter possessed was a controlled
substance. Fultz, 333 Ark. at 596, 972 S.W.2d at 226; Darrough, 322 Ark. at 253, 908 S.W.2d at
326. In Boston, our court employed a joint-occupancy analysis, including the knowledge
element, where the facts established that the appellant was in one of two vehicles traveling
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together that were stopped by police and that the appellant had permitted a person he was
traveling with to place her suitcase containing marijuana in the trunk of his car. Boston, 69 Ark.
App. at 161–62, 12 S.W.3d at 249.
The case at bar is not a joint-occupancy case. Pokatilov was not traveling with anyone
else, he was not stopped with another vehicle, and he was alone in his carrier when he was
stopped. Therefore, constructive possession did not require the additional joint-occupancy
element of knowledge. See Pyle v. State, 314 Ark. 165, 180, 862 S.W.2d 823, 831 (1995) (“When
contraband is found in a place under a defendant’s dominion and control a jury may infer
constructive possession, but if joint control is established, proof of knowledge of the
contraband is required.”); Barrera v. State, 2012 Ark. App. 533, at 6 (holding that the joint-
occupancy cases cited by Barrera were inapposite as he was undisputedly the only person in
the vehicle).
The case at bar is very similar to Barrera. There a jury convicted Barrera of possession
of marijuana with intent to deliver and possession of drug paraphernalia. 2012 Ark. App. 533,
at 1. On appeal, Barrera argued that there was no evidence presented to indicate that he knew
there was contraband in the truck he was hauling on his flatbed trailer. He contended that the
truck he was towing on the trailer was open to access from the general public and that the
State failed to present any evidence linking him more definitely to the contraband. Barrera,
2012 Ark. App. 533, at 4. We affirmed the jury’s convictions, holding that the evidence
demonstrated that Barrera had immediate and exclusive access to the truck in which the
marijuana was found and that the jury could reasonably conclude that he constructively
possessed the contraband. Id. at 6. We also held that, to the extent Barrera relied on his
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testimony that he was merely driving the truck for a friend and did not know the marijuana
was in the truck, the jury was not required to believe his self-serving testimony that he did not
know there was marijuana in the truck he was hauling. Id. at 6.
Likewise, in the case at bar, Pokatilov was the driver and sole occupant of the carrier
hauling the Tahoe that contained the marijuana. He had the keys to the Tahoe, which was
immediately and exclusively accessible to him and subject to his dominion and control. He
loaded the Tahoe onto the carrier. The dispatch sheet for the Tahoe instructed him to
“PLEASE DO A THOROUGH INSPECTION OF THE VEHICLE ON PICKUP.” The
Tahoe’s bill of lading has a handwritten mark on the “driver’s signature” line confirming an
inspection of the vehicle upon pickup, and Pokatilov testified that he filled out each bill of
lading. Pokatilov admitted that there was some “stuff” inside the vehicles. This is substantial
evidence that Pokatilov had immediate and exclusive access to the Tahoe in which the
marijuana was found; therefore, the jury could reasonably conclude that he constructively
possessed the contraband.
In addition to Pokatilov’s immediate and exclusive access to the contraband, the jury
could have further inferred constructive possession from his suspicious behavior, which
included the discrepancies in his paperwork, his nervousness, his bringing up the topic of
marijuana, and his equivocal response of “not really” when Watkins asked him if there was
anything illegal in any of the vehicles he was transporting. Barrera, 2012 Ark. App. 533, at 6
(holding that an accused’s suspicious behavior coupled with proximity to the contraband is
clearly indicative of possession).
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Pokatilov argues that his trial testimony provided alternative and innocent explanations
for the above-cited evidence. However, these arguments focus on the credibility of the
witnesses, and it is well settled that it is the province of the fact-finder to determine the weight
of evidence and the credibility of witnesses. Lockhart v. State, 2017 Ark. 13, at 3, ___ S.W.3d
___, ___. Viewing the evidence in the light most favorable to the verdict, we hold that there
was substantial evidence to support Pokatilov’s conviction for possession of marijuana with
the purpose to deliver.
Pokatilov’s second argument on appeal centers on the circuit court’s denial of his
proffered jury instruction on constructive possession. A party is entitled to a jury instruction
when it is a correct statement of the law and when there is some basis in the evidence to
support giving the instruction. Vidos v. State, 367 Ark. 296, 308, 239 S.W.3d 467, 476 (2006).
The model instruction is presumed to be accurate, and the party challenging its accuracy must
overcome that presumption. Thomas v. State, 370 Ark. 70, 84, 257 S.W.3d 92, 103 (2007).
“Nonmodel instructions are to be given only when the trial court finds that the model
instructions do not accurately state the law or do not contain a necessary instruction.” Bond v.
State, 374 Ark. 332, 340, 288 S.W.3d 206, 212 (2008). We will not reverse a circuit court’s
decision to give an instruction unless the court abused its discretion. Vidos, 367 Ark. at 308,
239 S.W.3d at 476.
At trial, the circuit court read AMI Crim. 2d 64.420 to the jury. This model instruction
provided in part that
[t]here are two kinds of possession, actual and constructive. Actual possession of a thing
is direct physical control over it. Constructive possession exists when a person, although
not in actual possession of a thing, has the right to control it and intends to do so, either
directly or through another person or persons.
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At trial, Pokatilov proffered the following instruction:
In order to prove constructive possession, the State must establish beyond a reasonable
doubt that 1) the defendant exercised care, control, and management over the controlled
substance, and 2) that the defendant knew the matter possessed was a controlled substance.
The circuit court refused the proffered instruction. On appeal, Pokatilov claims this was an
abuse of discretion. He cites Fultz, Darrough, and Boston, and argues that the model instruction
was incomplete and inaccurate because it omitted the knowledge requirement. He further
claims that this violated his due-process rights.
As previously stated, the case at bar is not a joint-occupancy case; therefore,
constructive possession did not require the additional joint-occupancy element of knowledge.
Under the facts of this case, the model instruction given to the jury was correct. Furthermore,
our supreme court has held that the language contained in other model instructions describing
constructive possession, which is identical to the language in AMI Crim. 2d 64.420, accurately
states the law. Walley v. State, 353 Ark. 586, 601, 112 S.W.3d 349, 357 (2003) (holding that the
identically worded model instruction on constructive possession was a “legally sufficient”
statement). Accordingly, we hold that the circuit court did not abuse its discretion in rejecting
Pokatilov’s proffered instruction.
Pokatilov’s third point on appeal also involves jury instructions. During deliberations,
the jury wrote the following question to the court: “Are we judging on Defendant’s knowledge
of having the drug or just possession. Actual possession or constructive possession.” In
response, Pokatilov’s counsel asked the court again to give his proffered instruction, arguing
that the jury was clearly confused by the model instruction. The court refused, telling the jury
to make its decision based on the evidence presented and the instructions submitted. Pokatilov
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claims that the court abused its discretion in refusing to reinstruct the jury with his proffered
instruction. We disagree. As set forth above, the model instruction was not inaccurate. We
affirm on this point.
For his final point on appeal, Pokatilov makes five arguments regarding the denial of
his motion to suppress. In reviewing the denial of a motion to suppress evidence, this court
conducts a de novo review based on the totality of the circumstances, reviewing findings of
historical facts for clear error and determining whether those facts give rise to reasonable
suspicion or probable cause, giving due weight to inferences drawn by the circuit court. Jones
v. State, 2014 Ark. App. 649, at 4, 448 S.W.3d 214, 217–18. We defer to the superior position
of the circuit court to pass upon the credibility of witnesses. Id., 448 S.W.3d at 218. We will
reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence.
Id., 448 S.W.3d at 218.
Pokatilov first argues that he has standing to pursue an appeal of the suppression issue
because he had a possessory interest as a bailee. The circuit court found that Pokatilov had
standing, and the State does not dispute this finding on appeal.
Pokatilov next challenges the circuit court’s finding that Watkins had probable cause
to make the traffic stop. A police officer may stop and detain a motorist if the officer has
probable cause to believe that a traffic violation has occurred. Freeman v. State, 2012 Ark. App.
144, at 5, 391 S.W.3d 682, 685. Probable cause is defined as facts or circumstances within a
police officer’s knowledge that are sufficient to permit a person of reasonable caution to
believe that an offense has been committed by the person suspected. Laime v. State, 347 Ark.
142, 153, 60 S.W.3d 464, 472 (2001). In assessing the existence of probable cause, our review
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is liberal rather than strict. Id., 60 S.W.3d at 472. Whether a police officer has probable cause
to make a traffic stop does not depend on whether the driver was actually guilty of the violation
which the officer believed to have occurred. Id., 60 S.W.3d at 472.
In this case, the circuit court found that Watkins had probable cause to stop Pokatilov
pursuant to section 27-51-104:
(a) It shall be unlawful for any person to drive or operate any vehicle in such a careless
manner as to evidence a failure to keep a proper lookout for other traffic, vehicular or
otherwise, or in such a manner as to evidence a failure to maintain proper control on
the public thoroughfares or private property in the State of Arkansas.
(b) It shall be unlawful for any person to operate or drive any vehicle on the
public thoroughfares or private property in the State of Arkansas in violation of
the following prohibited acts:
...
(6) To operate any vehicle in such a manner which would cause a failure
to maintain control.
Ark. Code Ann. § 27-51-104(a), (b)(6) (Repl. 2010).
Pokatilov contends that Watkins lacked probable cause to make the stop because there
is no video evidence that his carrier crossed the white line; if he crossed the line it was not a
violation of section 27-51-104; and if he crossed the line it was reasonable due to the icy
roadway.
Here, Watkins testified that he saw Pokatilov violate a traffic law—crossing the white
line onto the shoulder multiple times. Bedsole v. State, 104 Ark. App. 253, 255, 290 S.W.3d 607,
608 (2009) (noting that the officer’s initial traffic stop of the appellant was lawful because the
officer witnessed appellant’s car cross the fog line onto the shoulder). According to Watkins,
this was particularly dangerous, because there was ice on the shoulder—not the roadway.
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Pokatilov cites no authority for his proposition that video evidence of the traffic violation is
required. Therefore, we affirm the circuit court’s finding that the stop was based on probable
cause.
Before moving to Pokatilov’s next argument, we note that the circuit court also found
that Watkins had authority, under Arkansas Code Annotated section 23-13-217, to stop
Pokatilov’s commercial carrier in his capacity as a certified highway officer with the
Department of Transportation.2 Pokatilov does not challenge this finding. When an appellant
fails to attack a circuit court’s independent, alternative basis for its ruling, we will not reverse.
May v. State, 2016 Ark. App. 605, at 5, ___ S.W.3d ___, ___.
Pokatilov’s third argument under the motion-to-suppress point on appeal involves
Arkansas Rule of Criminal Procedure 3.1:
A law enforcement officer lawfully present in any place, may, in the performance of his
duties, stop and detain any person who he reasonably suspects is committing, has
committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger
of forcible injury to persons or of appropriation of or damage to property, if such
action is reasonably necessary either to obtain or verify the identification of the person
or to determine the lawfulness of his conduct. An officer acting under this rule may
require the person to remain in or near such place in the officer’s presence for a period
of not more than fifteen (15) minutes or for such time as is reasonable under the
circumstances.
2Thisstatute gives authority to certified highway officers to (A) require the operator of
motor vehicles, engaged in intrastate or interstate movements and subject to the rules and
regulations of the Motor Carriers Act, to stop, exhibit, and submit for inspection all documents
required to be carried in that vehicle or by that operator pursuant to the regulations regarding
the operator or operators of that vehicle, including, but not limited to, the operator or driver’s
duty status or hours-of-service records, bills of lading, waybills, invoices, or other evidences
of the character of the lading being transported in the vehicle, as well as all records required
to be carried by the regulations concerning that vehicle; (B) inspect the contents of the vehicle
for the purpose of comparing the contents with bills of lading, waybills, invoices, or other
evidence of ownership or of transportation for compensation; and (C) require the operator to
submit the vehicle for a safety inspection pursuant to the rules and regulations, if deemed
necessary by the officers. Ark. Code Ann. § 23-13-217(c)(1)(A)–(C) (Supp. 2013).
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Our criminal rules define “reasonable suspicion” as “a suspicion based on facts or
circumstances which of themselves do not give rise to the probable cause requisite to justify a
lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is
reasonable as opposed to an imaginary or purely conjectural suspicion.” Ark. R. Crim. P. 2.1
(2016). Our supreme court has further said that “[w]hether there is reasonable suspicion
depends on whether, under the totality of the circumstances, the police have specific,
particularized, and articulable reasons indicating that the person may be involved in criminal
activity.” Laime, 347 Ark. at 155, 60 S.W.3d at 473.
Pokatilov contends that his continued detention (almost one hour in length) was not
based on reasonable suspicion and violated Rule 3.1. He asserts that Watkins’s bases for the
detention—that Pokatilov was argumentative, nervous, and unable to present proper
paperwork—were not legitimate and “appear to have been manufactured.” He maintains that
he was not argumentative or nervous and that he presented all the paperwork Watkins
requested.
Pokatilov’s argument turns on the circuit court’s weighing of the evidence and
credibility findings. The circuit court did not believe Pokatilov. It believed Watkins’s testimony
that he had reason to suspect that Pokatilov was engaging in criminal activity (based on his
demeanor, responses to questioning, and paperwork). We defer to the superior position of the
circuit court to pass upon the credibility of witnesses. Jones, 2014 Ark. App. 649, at 4, 448
S.W.3d at 218.
As for the extended length of the stop, it is well settled that as part of a valid traffic
stop, a police officer may detain a traffic offender while he completes certain routine tasks and
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that those routine tasks are unrelated to a Rule 3.1 detention. Laime, 347 Ark. at 157, 60 S.W.3d
at 474. Watkins also testified that the detention took extra time because, in his role as a certified
highway officer, he had many documents to review in order to perform his inspection of the
six vehicles on the carrier. Watkins testified that during the long silences on the video of the
stop, he was reviewing Pokatilov’s paperwork and typing the inspection report. Considering
the totality of the circumstances, we hold that the circuit court did not err in finding that there
was reasonable suspicion of a felony sufficient to justify the continued detention.
Pokatilov’s fourth motion-to-suppress argument is that his continued detention “is
equivalent to an arrest” and that pretextual arrests are forbidden.3 However, Pokatilov fails to
develop or cite convincing authority for this argument. This court does not research or
develop arguments for appellants. Eastin v. State, 2010 Ark. 275, at 5. Therefore, we affirm.
Pokatilov’s fifth and final argument under the motion-to-suppress point on appeal is
that the circuit court erred in finding that Pokatilov’s consent was freely given. He argues that
“it was obvious to [him] that he would not be able to leave until a search occurred.”
The test for a valid consent to search is that the consent be voluntary, and voluntariness
is a question of fact to be determined from all the circumstances. Freeman v. State, 2012 Ark.
App. 144, at 6, 391 S.W.3d 682, 685. The validity of consent is a factual question, and the
circuit court’s finding of fact will not be reversed unless it is shown to be clearly erroneous.
Gonder v. State, 95 Ark. App. 144, 150–51, 234 S.W.3d 887, 893 (2006). When the testimony of
an officer and an appellant are in direct conflict on the issue of consent to search, the decision
3Pokatilov concedes that in Arkansas, pretextual stops are permissible. State v. Harmon,
353 Ark. 568, 576, 113 S.W.3d 75, 79–80 (2003).
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amounts simply to the question of which witness to believe, which is a decision left to the trier
of fact. Nelson v. State, 365 Ark. 314, 320, 229 S.W.3d 35, 41 (2006).
The transcript of the video shows that when Watkins asked Pokatilov whether he
minded if Watkins searched the vehicles on the carrier, Pokatilov responded, “Nope, not at
all.” At the suppression hearing, Pokatilov testified that he consented to the search because he
did not feel like he was free to leave until his vehicle was searched. At trial, he testified that
when Watkins asked for consent to search the vehicles, Pokatilov said, “Go for it. They’re not
my cars. I’m just a transporter.” He explained that he was not nervous and did not feel he had
anything to hide.
Pokatilov’s testimony is inconsistent. His statement in the video and his testimony at
trial demonstrate that his consent was voluntarily given. However, at the suppression hearing
and on appeal, he claims his consent was not voluntary. Watkins’s testimony was not
inconsistent—he testified at the suppression hearing and at trial that Pokatilov consented to
the search. Credibility of the witnesses is an issue for the finder of fact. Menne v. State, 2012
Ark. 37, at 8, 386 S.W.3d 451, 456. Therefore, we hold that the circuit court did not clearly err
in determining that the evidence proved that Pokatilov voluntarily consented to the search.
We affirm the circuit court’s denial of Pokatilov’s motion to suppress.
Affirmed.
GRUBER, C.J., and GLADWIN, HARRISON, WHITEAKER, and BROWN, JJ., agree.
VIRDEN, KLAPPENBACH, and HIXSON, JJ., dissent.
BART F. VIRDEN, Judge, dissenting. I respectfully dissent on the limited issue of
whether Mr. Pokatilov was entitled to a jury instruction regarding his knowledge of the
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contraband found in a vehicle he was hauling on his transport. Specifically, I disagree with the
resulting state of the law and potential for abuses. I feel that, in any common-carrier or
commercial-vehicle situation, when the driver is charged as Mr. Pokatilov was, the jury should
be instructed in accordance with a joint-occupancy situation. Granted, the actual term “joint
occupancy” does not describe this situation, i.e., Mr. Pokatilov was the only one in the truck
and had the keys to the vehicles on the trailer; but that analysis is currently the only way to
instruct the jury on the requirement of knowledge of the contraband. If one reads “joint
occupancy” to mean that more than one person was responsible for the cargo and its contents
being transported, the cases can be read in complete harmony. The nearest case on point is
Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000), where this court concluded that
[t]he State’s argument that, because the vehicles were traveling together, the jury could
have inferred that the appellant was an additional person in control of the contraband,
is not persuasive. The State would essentially have us remove the knowledge
requirement from the constructive possession analysis by holding that when a driver
agrees to carry a parcel that belongs to another person in his car, and the parcel is later
found to contain contraband, this conduct is sufficient to demonstrate the driver knows
the container holds contraband. We decline to so hold. While this conduct may be
sufficient to demonstrate control of the container, it is not sufficient to demonstrate
knowledge of the contents of the container, and our case law clearly requires the State
must prove both elements to show constructive possession.
Id. at 160, 12 S.W.3d at 248–49 (citations omitted) (emphasis added).
In Boston, the defendant was driving a car, and another person not in the car with the
defendant had placed her suitcase containing marijuana in the trunk of the defendant’s car.
Although that other person was not in the defendant’s car, she was found to have been
traveling with the defendant. The difference is merely one of degree. Unless the driver has
complete and total control of the contents in his or her vehicle, the State should be required
to prove knowledge, and the jury should be so instructed.
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In this case, the jury might well have found that Mr. Pokatilov did have knowledge, but
the jury was not instructed on that point. Counsel for Mr. Pokatilov correctly predicted that
not instructing the jury on knowledge invited confusion:
DEFENSE COUNSEL: And specifically, the real issue in this case is whether the
Defendant knew the matter possessed was a controlled
substance. And, as I say, that’s the issue. This is a statement of
the law. The AMCI instruction by itself, 64.420, doesn’t say that,
or doesn’t accurately say that. And in as much as the Arkansas
Supreme Court twice and the Court of Appeals once has
specifically said this. We know it’s the law, and we submit that
this is something the jury should have in order to understand
what the State’s burden of proof is.
By clarifying that every common-carrier case with similar facts be treated as a joint-occupancy
case for purposes of instructing the jury, we would be giving the jury the tools needed to make
the required findings of fact.
Certainly our facts are different from Boston, supra, but what about any other
commercial-truck driver? Are we going to say those drivers are in sole possession and control
and therefore impart a form of strict liability? Or are we going to allow the jury to determine—
as was requested by this jury—whether the driver knew of the contraband?
The drivers and companies are protected from civil forfeiture in this situation by a
specific statute. Arkansas Code Annotated section 5-5-201(b)(1) (Repl. 2013) provides that
“[n]o conveyance used by any person as a common carrier in the transaction of business as a
common carrier is subject to forfeiture under this subchapter unless it appears that the owner
or other person in charge of the conveyance was a consenting party or privy to the commission
or attempt to commit the offense.”
The bar should not be lower to prove a criminal offense.
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Cite as 2017 Ark. App. 155
I am authorized to say that Judges Klappenbach and Hixson join in this dissent.
Jeff Rosenzweig, for appellant.
Leslie Rutledge, Att’y Gen., by: Amanda Jegley, Ass’t Att’y Gen., for appellee.
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