*1 of Arkansas STATE Alexander NEWBORN CA CR 04-989 of Arkansas
Court of Appeals 15, 2005 delivered Opinion June LeVar, for Alan Gen., Beebe, Gen., Ass’t for Vada
Mike Att’y by: Berger, Att’y appellee. Newborn, Barer,
Karen R. Alexander Judge. Appellant, the revocation of his challenges probation alleging of a Based firearm. of violating guilty finding, firearm and the terms of his of a probation by sentenced him to imprisonment twenty years’ Department and six conviction for residential Corrections on prior burglary The sentences on a conviction terroristic threatening. years prior to run were concurrently. the circuit court must find
In revocation proceedings, of the evidence the defendant inexcusably 5-4-309(d) Ann. violated a condition of Code § *2 Evidence be sufficient to convict can 2003). (Supp. may be sufficient to revoke due to the burden State’s lower of proof. State, 518, 521, 874, v. 347 Ark. 65 S.W.3d 876 A Bradley (2002). circuit court’s in revocation will not be finding proceedings reversed on unless it is are appeal clearly against State, 381, 383, of the evidence. 861, v. 310 Ark. Lemons 836 S.W.2d (1992).
862 circumstances, Under these facts and we cannot say clearly at by concluding least one found in trunk of the car in which he was a passenger. At the revocation hearing, Pomaybo
that on November she was the officer for back-up Officer who made a traffic on the Tracy Copeland stop seat. There was riding front-passenger an odor of the officers found burning and marijuana, marijuana, the driver claimed The driver did not have drug. a valid driver’s license and was taken to for the jail marijuana so officers conducted an of the car. The possession, inventory officers found two in the trunk inventory search. Officer testified that she could not recall Pomaybo ammunition. was released after
Appellant
officers
telling
Officer
According
Pomaybo, stated that he was
there were items of hunter’s
retrieved,
in the vehicle that
and
orange
a Carhart
worn while
jumpsuit
typically
hunting
keep
warm. The officers were not aware at the
time
the incident that
was on
testified that she did
not know to whom the car
she
but
believed that
belonged,
did not own the car.
contraband,
order
the State does
State,
have to establish actual
v.
348
physical possession.
446,
Ark.
constructive possession,
to demonstrate
and was
ion
control over
required
inference that he
a reasonable
least
necessary prove physical Polk v. in order to supra. contraband prove possession. can that constructive The State prove or had that he controlled the contraband contraband by proving simultaneous control the contraband. Id. (affirming was found in where cocaine plastic bag sticking possession charge driver’s was found out above sun visor on side handgun car, and the floor mat of the underneath rear passenger-side car that he was the sole of borrowed defendant was occupant 5 (2003) driving); Cherry where firearm simultaneous (affirming charge to items used to manufacture found in the defendant’skitchen next methamphetamine). Harris, uncle, that William
In this Appellant’s had never been had sold him but that shotgun, appellant delivered to him. This
fact with that coupled to deer hunter-orange clothing, stated camp, going and testimony posses- Carhart regarding jumpsuit, the facts and sion of shotgun provide and control over the gun. trial on testified at that when Additionally, appellant stopped November he did that not know truck; however, testified that told her Pamaybo trunk his father. In weapons conducting review, our this court defers circuit court’s determinations toas of the witnesses who at the revocation credibility testify Therefore, S.W.3d at 876. we hearing. Bradley, the trial err find in revoking appellant’s probation.
Affirmed.
Vaught, Crabtree, Roaf, Bird JJ., agree. Griffen, Glover, JJ.,
Wendell Griffen,
I would reverse the
Judge, dissenting.
revocation of
Even
appellant’sprobation.
prepon-
derance
the State failed to
that he constructively
either
that were in the
trunk of
McClure,
owned and driven
Richard
was a
While the State
passenger.
by showing
controlled a
Polk v.
from his vehicle. Moreover, evidence does not show remaining appel- lant’s of the or the weapon right tends to show that knew the was merely in trunk. gun that his was Certainly father’s appellant’s knowledge gun sufficient, trunk is even to a that he controlled the to support gun control it. the cases cited
Additionally, are inapposite because the facts in those cases constituted much to stronger proof In support defen- car was driving, borrowed dant was the sole occupant car, the driver’s side above on the inside were found drugs
visor, the rear floor underneath passenger found gun In of the car. mat Cherry in the firearm a (2003), simultaneous-possession to meth- to items used manufacture defendant’s kitchen next amphetamine. defendant, Here, in the Polk unlike pos- vehicle, vehicle, less much sole possession
session driven owner. merely which being to There was no evidence in the front seat. presented passenger that one of the only that the gun belonged appellant, Moreover, father. in trunk belonged guns it have where would was not found the interior gun Instead, the was locked in been accessible readily Thus, trunk, had no unlike the Polk to which key. defendant, was not found in or the here Cherry access, less had much exclusive which appellant place then, had the can be said that he owned or access. How it control weapon? short, I cannot the majority holding join him, where the which not belong gun, car that was locked in the trunk of another person’s was a mere the owner and in passenger, no no access to the because
and where gun to no the car or its to the trunk of the car and means control I contents. dissent. respectfully I am authorized to state Judges this join
Glover