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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