White v. State

Cite as 2014 Ark. App. 587
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-33
TRAVIS L. WHITE Opinion Delivered October 29, 2014
APPELLANT
APPEAL FROM THE LONOKE
V. COUNTY CIRCUIT COURT
[NO. CR2012-275]
STATE OF ARKANSAS HONORABLE SANDY HUCKABEE,
APPELLEE JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Members of the Lonoke County Sheriff’s Office went to Travis L. White’s residence
on June 20, 2012, acting on information that a stolen pistol and a lawn mower might be
located there. White, who was inside the residence with three other people when officers
arrived, consented to a search of his house and anything on the property. Officers arrested
him for felon in possession of a firearm after finding a firearm, a box of ammunition, and his
wallet inside his aunt’s Ford F-150 truck. He and his cousin were taken to the sheriff’s office,
where White was Mirandized and gave a statement in which he acknowledged that he had
driven the truck earlier in the day but denied that the gun belonged to him or that he knew
it was in the truck.
Evidence at the bench trial in the circuit court included testimony by officers and
White. At the trial’s conclusion, White was convicted on the firearms charge. He
subsequently filed a motion to reconsider, which was orally argued to the circuit court and
Cite as 2014 Ark. App. 587
was denied. The State requested “the full range of punishment” at the sentencing phase of
trial, and White requested probation in order to keep his job and continue supporting his two
children. The court agreed that probation was appropriate, stating, “This case has caused me
pause, not only on the guilt phase but also on the sentencing phase.” The court then
pronounced a sentence of seventy-two months’ probation. White now appeals, challenging
the sufficiency of the evidence to show that he constructively possessed the gun.1 We affirm.
Arkansas Code Annotated section 5-73-103(a) (Supp. 2013) provides that no convicted
felon shall possess or own a firearm. A showing of constructive possession, which is the
control or right to control the contraband, is sufficient to prove possession of a firearm. Argo
v. State, 53 Ark. App. 103, 105, 920 S.W.2d 18, 20 (1996). Constructive possession can be
implied where the contraband was found in a place immediately and exclusively accessible to
the accused and subject to his control. Id. Constructive possession may be established by
circumstantial evidence, but when such evidence alone is relied on for conviction, it must
indicate guilt and exclude every other reasonable hypothesis. Id.
White argues that the evidence did not exclude every reasonable hypothesis other than
his guilt. He notes testimony that his cousin had driven the truck the day before officers
searched it and that before he (White) was able to drive it on the morning of the search, he
had to get the key from his cousin. White points out that other people were in the residence
1
White preserved this issue by making a specific directed-verdict motion at the close
of the evidence. Although he called his motion one for a directed verdict, the motion at a
bench trial is properly a motion to dismiss. Ark. R. Crim. P. 33.1(b) (2013). A motion to
dismiss at a bench trial is a challenge to the sufficiency of the evidence. E.g., Dobbins v. State,
2013 Ark. App. 269, at 3.
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Cite as 2014 Ark. App. 587
at the time the gun was found in the truck; no one could say when the gun was put there;
other people had access to the truck, in which there was a prescription bottle belonging to
someone named “Jennifer”; no fingerprints were taken from the gun; and the cousin initially
claimed ownership of the gun, changing his story only when officers mentioned that the gun
might be stolen and he was confronted with the possibility of being AWOL from the military.
White argues that there are other reasonable hypotheses as to who put the gun in the
truck: specifically, his cousin or one of the other two persons in the house. He asserts that
speculation is required to conclude that he put the gun in the truck or was in the truck at a
time the gun was there. In support of his argument, he cites Williams v. State, 94 Ark. App.
440, 236 S.W.3d 519 (2006), where we reversed the circuit court’s finding that the appellant
constructively possessed a gun found in the apartment he jointly occupied with his girlfriend.
The appellant in Williams was already outside in the parking lot when police arrived
to investigate a weapon-disturbance call. 94 Ark. App. at 444, 236 S.W.3d at 522. There
were no signs that a struggle had occurred in the two-bedroom apartment or that the
girlfriend had been in a struggle. Id. at 442, 236 S.W.3d at 521. Under the right side of the
bed in one bedroom, an officer found a pistol case containing a Ruger .44 magnum with a
laser-sighting system and loaded with six hollow-point bullets. Id. The officer did not know
if the gun had ever been fired, and no fingerprints were taken from the bag, the gun, or the
bullets. Id. There was no testimony regarding who had placed the gun under the bed, if
appellant slept on the right side of the bed or even in that particular bedroom, if he was the
person who had brought the gun into the apartment, if the gun was found with any of his
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Cite as 2014 Ark. App. 587
personal belongings, or that he was the subject of the weapon-disturbance call. Id. at 444, 236
S.W.3d at 522. We held that evidence of the gun’s presence in the jointly occupied
apartment, along with the officer’s testimony that the gun was large and difficult to handle,
was not sufficient to link appellant to the gun. Id.
On appeal, we view the evidence in the light most favorable to the State, considering
only the evidence that supports the verdict. Clayton v. State, 2011 Ark. App. 692. The test
for determining the sufficiency of the evidence is whether the verdict is supported by
substantial evidence, either direct or circumstantial. Barron-Gonzalez v. State, 2013 Ark. App.
120, 426 S.W.3d 508. Evidence is substantial if it is of sufficient force and character to
compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture.
Id. For circumstantial evidence to be substantial, the evidence must exclude every other
reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the
circumstantial evidence excludes every hypothesis consistent with innocence is a decision for
the fact-finder, whose determination will not be disturbed unless it reached its verdict using
speculation and conjecture. Id.
Under these standards, the evidence in the present case is as follows. Officer Keenan
Carter testified that he assisted in searching the truck, which he had often seen White driving,
and that the firearm was located under the truck’s center fold-down console. He further
testified,
If you’re looking through the window from the passenger’s side of the vehicle, you
could see just the tip of it and the tip of the holster that it was in. It wasn’t wedged
down far underneath there. . . . The firearm itself . . . was inside the holster that was
underneath the armrest.
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Cite as 2014 Ark. App. 587
Carter also testified about the location of the ammunition and White’s wallet:
[Y]ou could pull a lever there in the front and [the console] would open up like a
clamshell and that’s the contents of it, being ammunition that would fit and function
in that firearm, and the brown wallet there belonging to Mr. White. That is 9 mm
ammunition and the firearm I found underneath there was a 9 mm. The location of
that wallet is sort of to the side but on top of the ammunition.
In summary, the partially hidden gun was visible through the window of the vehicle, the gun
was beneath the console, and White’s wallet was inside the console just above a box of
ammunition matching the caliber of the weapon.
Viewed in the light most favorable to the State, the evidence established that the gun
was in the truck in plain view, located in close proximity to White’s personal effects; that
White exercised regular control over the vehicle; and that, although he was not in the vehicle
at the time the gun was discovered, he had driven the truck on the morning the gun was
found. It was up to the circuit court to decide whether White constructively possessed the
firearm and whether all other hypotheses were reasonably excluded. We hold that there was
sufficient evidence that White constructively possessed the gun.
Affirmed.
WALMSLEY and HARRISON, JJ., agree.
Montgomery, Adams & Wyatt, PLC, by: James W. Wyatt, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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