Terry v. State
559 S.W.3d 301
Ark. Ct. App.2018Background
- On March 12, 2017, Deputy Martelle McDonald stopped Calvin Terry for a nonworking license-plate light; Terry fled in his vehicle and was the only occupant. A pursuit ensued and slowed to about 45 mph in a residential area on Smalley Road.
- Deputy McDonald testified he saw Terry throw a black object out the passenger-side window during the pursuit. Terry surrendered about ten minutes after the pursuit began.
- After arrest and an inventory search, officers found methamphetamine residue, marijuana, drug paraphernalia, and a deeply hidden nylon gun holster on Terry or in the vehicle.
- Deputy McDonald returned 15–20 minutes later to the spot where he saw the object thrown and recovered a bag that tested positive for methamphetamine and a .45-caliber Glock 30; the items appeared only slightly dirty despite wet/muddy surroundings.
- Terry waived a jury, moved to dismiss after the State rested arguing lack of evidence linking him to the thrown items, was convicted of five felonies (including possession of methamphetamine and simultaneous possession of methamphetamine and a firearm), found to be a habitual offender, and sentenced to 15 years. He appealed the denial of the motion to dismiss the two possession charges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State presented substantial evidence (direct or circumstantial) to prove Terry actually or constructively possessed methamphetamine and a firearm | State: Officer observed defendant discard an object from the vehicle and later recovered contraband at that location consistent with being thrown from the vehicle; additional indicia (residue, paraphernalia, holster) support constructive possession | Terry: Officer could not identify the thrown object at night; no fingerprints or incriminating statements; items might have been placed by a third party; contraband not shown to be in his control when found | Affirmed. Court held there was substantial circumstantial evidence of constructive possession based on the officer’s observation of the discard, proximity in time and place, condition of items, absence of other traffic, and other inculpatory evidence found on Terry or in the vehicle |
Key Cases Cited
- Gamble v. State, 105 S.W.3d 801 (discussing standard for affirming bench-trial denial of motion to dismiss based on circumstantial evidence)
- McCastle v. State, 392 S.W.3d 369 (no requirement that majority of linking factors be present to show constructive possession)
- McNeely v. State, 530 S.W.3d 876 (officer observed discard and contraband found where object thrown supports constructive possession)
- Kimble v. State, 483 S.W.3d 832 (similar support for inference of constructive possession from observation of discarding and recovery nearby)
- Garner v. State, 131 S.W.3d 734 (distinguished: holding reversed where officers did not see discard, contraband found distant from pursuit path, and other linking factors absent)