Robinson v. State

Cite as 2016 Ark. App. 240
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-15-808
Opinion Delivered: May 4, 2016
STEVEN EDWIN ROBINSON
APPELLANT
APPEAL FROM THE GARLAND
V. COUNTY CIRCUIT COURT
[NO. CR-14-238]
STATE OF ARKANSAS
APPELLEE HONORABLE MARCIA R.
HEARNSBERGER, JUDGE
AFFIRMED
RAYMOND R. ABRAMSON, Judge
A Garland County jury convicted appellant Steven Edwin Robinson of one felony
count of possession of a schedule II controlled substance (cocaine) and one misdemeanor
count of possession of a schedule VI controlled substance (marijuana). Robinson argues on
appeal that the trial court erred in denying his motions for a directed verdict. We affirm
Robinson’s convictions.
At Robinson’s May 27, 2015 jury trial, the State called three witnesses: Officer
Nathan Williams from the Hot Springs Police Department; Margaret Meyers, the property-
and-evidence technician at the Hot Springs Police Department; and Lauren McDonald, a
forensic chemist at the Arkansas State Crime Laboratory. The defense called no witnesses.
The State’s evidence presented at trial established that Officer Williams initiated a traffic
stop on March 10, 2014, after he observed a 2000 model Cadillac DeVille being driven
down the center of both lanes on Grand Avenue. Officer Williams testified that the car was
Cite as 2016 Ark. App. 240
also driven onto the grass median. Officer Williams stated that could smell marijuana when
he approached the vehicle and the driver, later identified as Robinson, produced an Arkansas
ID card rather than his driver’s license.
Another officer arrived, and the vehicle was searched. In the search, two small plastic
bags of what Officer Williams believed was marijuana were found between the driver’s seat
and the center console. A passenger around sixteen or seventeen years old was also in the
car but was released when Robinson was taken into custody and transported to the Garland
County Detention Facility. At the detention center, Robinson was searched by a deputy,
who found less than a gram of cocaine in a plastic baggie in the front coin pocket of
Robinson’s pants.
The State produced testimony that the cocaine was submitted to the Arkansas State
Crime Laboratory, but that the marijuana was not submitted because misdemeanor amounts
of drugs are not sent to the crime lab without a special request from the prosecutor. Margaret
Meyers testified that it is protocol that once officers bring evidence to the police department,
they submit it into an evidence locker that is specific to their case. The officers lock the
lockers, and Meyers is the only one with keys to the lockers. Meyers then enters the
evidence into the computer system and files it in the evidence room. Meyers testified that
she carried the evidence from Robinson’s case to the state crime lab.
Lauren McDonald, an evidence analyst at the Arkansas State Crime Laboratory,
testified as a board-certified forensic chemist. She explained the crime lab’s procedures for
keeping the evidence protected and safe and explained the processes of her work. McDonald
stated that the amount of cocaine that was found on Robinson equaled 0.3082 grams, but
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that she did not determine the purity level of the three-tenths gram of cocaine. McDonald
was the third and final witness for the State.
After the State rested, defense counsel moved for a directed verdict on the felony
charge, arguing that the State failed to present sufficient evidence to establish that the cocaine
was a “useable” amount in order for it to constitute possession. Defense counsel also moved
for a directed verdict on count II, the marijuana charge, on the basis that the joint possession
was insufficient to show possession and that the alleged marijuana was not sufficiently
identified to be marijuana. Both motions were denied by the trial court. The defense did
not put on any evidence and rested.
Robinson challenges the trial court’s denial of his motion for directed verdict. This
court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence.
Gwathney v. State, 2009 Ark. 544, 381 S.W.3d 744. Rule 33.1(a) of the Arkansas Rules of
Criminal Procedure provides that in a jury trial, if a motion for directed verdict is to be
made, it shall be made at the close of the evidence offered by the prosecution and at the
close of all the evidence. Ark. R. Crim. P. 33.1(a). However, renewal of a directed-verdict
motion is not required to preserve a sufficiency challenge on appeal when the defense rests
without presenting any evidence. Patton v. State, 2010 Ark. App. 453.
When the sufficiency of the evidence is challenged in a criminal conviction, the
appellate court views the evidence in the light most favorable to the verdict and considers
only the evidence supporting it. Adkins v. State, 371 Ark. 159, 264 S.W.3d 523 (2007). We
will affirm if the finding of guilt is supported by substantial evidence. Id. Substantial evidence
is evidence of such sufficient force and character that it will, with reasonable certainty,
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compel a conclusion one way or the other, without resorting to speculation or conjecture.
Fernandez v. State, 2010 Ark. 148, 362 S.W.3d 905. Circumstantial evidence may constitute
substantial evidence to support a conviction. Thornton v. State, 2014 Ark. 157, at 5, 433
S.W.3d 216, 219. To be substantial, circumstantial evidence must exclude every other
reasonable hypothesis than that of the guilt of the accused. Id. Such a determination is a
question of fact for the trier of fact, who is free to believe all or part of any witness’s
testimony and who may resolve issues of conflicting testimony and inconsistent evidence.
Id.
On appeal, Robinson specifically challenges the sufficiency of the evidence to
support his convictions on two grounds: (1) that the amount of cocaine discovered on his
person was not proved to be a “useable” amount and (2) that the State failed to prove that
he constructively possessed the marijuana found in the car he was driving. 1
In support of his first argument—that the State failed to present substantial evidence
that the amount of cocaine was useable—Robinson relies on Harbison v. State, 302 Ark.
315, 790 S.W.2d 146 (1990). In Harbison, our supreme court held that possession of a
controlled substance must be of a measurable or useable amount to constitute that crime.
Id.
At trial, defense counsel attempted to solicit testimony from McDonald about the
effect of cocaine on the human body if only three-tenths of a gram were used and also asked
about the seized drug’s purity. Proof as to the effect of a given quantity of drugs on the
1
Robinson does not argue on appeal, as he did in the trial court, that the alleged
marijuana was not sufficiently identified to be marijuana.
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human body is not required under Harbison. See Buckley v. State, 36 Ark. App. 185, 187,
818 S.W.2d 579, 581 (1991). Proof of particular purity is likewise not necessary. Williams
v. State, 47 Ark. App. 143, 145, 887 S.W.2d 312, 313 (1994). Furthermore, this court has
held that 0.024 grams of cocaine constituted a useable amount because the cocaine was
capable of quantitative analysis, could be seen with the naked eye, was tangible, and could
be picked up. See Sinks v. State, 44 Ark. 1, 4, 864 S.W.2d 879, 881 (1993).
In the instant case, McDonald testified that the cocaine sample sent to her was both
“weighable and detectable.” She stated that the cocaine’s amount equaled 0.3082 grams.
The cocaine could be seen with the naked eye and was tangible. We hold that it passes the
Harbison threshold. Therefore, we hold that substantial evidence was presented that
Robinson possessed a useable amount of cocaine.
Robinson’s second argument—that the State failed to present substantial evidence
that he constructively possessed the marijuana found in the jointly occupied vehicle he was
driving—also fails. To convict an individual of possessing contraband, “the State must show
that the accused knew it was contraband and exercised control or dominion over it.” Dodson
v. State, 88 Ark. App. 380, 285, 199 S.W.3d 115, 118 (2004). The State need not prove
actual possession of contraband to prove possession; it 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 can be inferred when the
drugs are in the joint control of the accused and another individual, but joint occupancy of
a vehicle, standing alone, is not sufficient to establish possession or joint possession of any
controlled substances found within the vehicle. See Mings v. State, 318 Ark. 201, 207, 884
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S.W.2d 596, 600 (1994).
In order to establish possession, there must be some other factor linking the accused
to the drugs. Id. Other factors to be considered are whether (1) the contraband is in plain
view; (2) the contraband is found with the accused’s personal effects; (3) the contraband is
found on the same side of the car seat as where the accused was sitting or in near proximity
to it; (4) the accused is the owner of the automobile or exercises dominion or control over
it; and (5) the accused acted suspiciously before or during the arrest. Id.
Robinson’s argument that there was insufficient evidence to prove that he possessed
the marijuana that was discovered is unpersuasive. He is correct in that joint occupancy of
a vehicle, standing alone, is not sufficient to establish possession or joint possession, but there
are additional factors linking Robinson to the marijuana found in the vehicle he was driving.
The marijuana was discovered on the driver’s side of the vehicle wedged between
Robinson’s seat and the center console right next to his leg. Robinson was driving the car,
which shows he exercised dominion and control over it. See Dodson, supra. He drove over
the grass median and produced his Arkansas ID card instead of his driver’s license when
Officer Williams pulled him over. Officer Williams smelled the odor of what he believed
was marijuana when he approached Robinson’s vehicle. The evidence presented shows
several factors linking Robinson to the marijuana and supports a finding that Robinson
constructively possessed it.
Based on our standard of review in viewing the evidence in the light most favorable
to the State and considering only the evidence supporting the jury’s verdict, we cannot say
that the trial court erred in denying Robinson’s motions for a directed verdict.
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Affirmed.
WHITEAKER and HOOFMAN, JJ., agree.
Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, for appellant.
Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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