Block v. State

Cite as 2015 Ark. App. 83

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-13-1030

Opinion Delivered February 11, 2015

JOHN EVERETT BLOCK, JR. APPEAL FROM THE HEMPSTEAD
APPELLANT COUNTY CIRCUIT COURT
[No. 29CR-13-65]
V.
HONORABLE RANDY WRIGHT,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

Appellant John Everett Block appeals his convictions of possession of marijuana and

simultaneous possession of drugs and firearms. He challenges whether the State presented

sufficient evidence of his possession of marijuana to support both convictions. We affirm.

Block was tried by a jury in the Circuit Court of Hempstead County over two days in July

2013. John Weaver, an officer with the Hope Police Department, testified that on December 22,

2012, at approximately 7:00 p.m., he responded to a dispatch call reporting shots fired on North

Walker Street in Hope. While proceeding toward North Walker Street, he received another call

saying that someone needed assistance on Dairy Street. He was passing Dairy Street at the time

and was able to reach the location near the intersection of Dairy Street and Graham Street less

than a minute after the call. Weaver testified that upon his arrival at the location he observed a

vehicle in a ditch with several bullet holes in the windshield. He initially did not see any people

at the scene. He testified that after exiting his patrol car and approaching the scene, a man he
Cite as 2015 Ark. App. 83

later identified as Block came out from behind a shed to Weaver’s left. Weaver testified that the

shed is approximately fifteen to twenty yards from the road. There were no houses or other

buildings around it.

Weaver testified that within a minute of his arrival at the scene, two other officers arrived.

They began looking for evidence and made contact with Block. Weaver testified that Block

initially stated that someone had shot at him several times and that Block had taken off running.

Sergeant Daniel Oller testified that Block later said he had been traveling southbound on

Graham Street when an off-white car began driving erratically, threatening to hit him. He said

he activated his car’s horn, and the off-white car stopped on Hickory Street. Block told Oller

that someone got out of the car, slipped down into a ditch, fired one shot in the air, then stood

up and began firing at Block’s car. Oller testified that Block said he backed his car down Graham

Street until it stopped in the ditch. When Oller told Block about his observation that the

evidence at the scene indicated that some of the shots were fired from inside the car,1 Block

admitted that he had a firearm and had returned fire. He indicated that he had thrown the gun

in the bushes near a fence row directly across the street from the shed.

The officers testified that they then began searching for the gun. When they could not

locate it in the bushes near the fence, Oller asked Block if he was sure he had thrown the gun

there. The officers began expanding their search. Oller testified that Block then began to act

nervous. Block made spontaneous, unprovoked utterances about how he was going to spend

Christmas in jail. Oller testified that Block’s behavior made Oller nervous, especially since the

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Oller testified that an inspection of the windshield on Block’s car revealed that some
bullet holes bent outward while others bent inward. He also testified that six spent forty-caliber
shell casings were found in the car.

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officers had not recovered the firearm. For the officers’ safety, Oller placed Block in handcuffs

and performed a Terry frisk to check for weapons. During the frisk, Oller felt a large bulge in

Block’s clothing, which Block stated was approximately seventeen hundred dollars in cash.

The officers expanded their search for the weapon to the area behind the shed where

Weaver had first observed Block. Oller testified that he discovered a white plastic trashbag

behind the shed. Oller testified that, although it had been raining earlier that day and the ground

was wet and muddy, the plastic bag was clean and dry. He testified that leaves near the bag held

standing water, but there was no water on the bag. Inside the bag, he found seven Ziploc bags

filled with a leafy green substance that was later confirmed to be marijuana. The officers

collected the evidence and placed Block under arrest. Based upon crime-lab testing, the parties

stipulated at trial that the trashbag contained a total of 6.96 pounds of marijuana.

Detective Andrew Watson testified that he interviewed Block after his arrest. A recording

of this interview was played for the jury. During the interview, Watson repeatedly implied that

the shooting was motivated by Block’s possession of a large amount of marijuana, suggesting

that a man named Willie Pree had attempted to rob Block of the drugs and money he was

carrying. Block never admitted to possessing any drugs.

At the close of the State’s case, Block’s attorney moved for a directed verdict, arguing

that the State had failed to present sufficient evidence to prove that Block possessed or had

control of the marijuana discovered behind the shed. He also argued that there was no evidence

that Block possessed a handgun.2 The court denied the motion.

On appeal, Block abandons the argument that the State failed to present sufficient
evidence to support a finding that he possessed a firearm.

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The defense recalled Sergeant Oller, who testified that the money discovered on Block

was not initially confiscated. He stated that Block gave his personal belongings, including the

money, to his mother, Gwendolyn Brooks, who appeared at the scene. After Block was arrested,

the officers recovered the money from Brooks. Brooks testified that she had given Block some

money a week or two before the shooting. She stated that the money had come from the sale

of cows she owned.

Whitney Coleman testified that, while working at a store in Hope earlier on the day of

the shooting, Willie Pree came in looking for Block. She testified that Pree was with three men

she did not recognize, driving a gold Malibu. Willie Pree testified that earlier on the day of the

shooting he had been with acquaintances from Little Rock who had a large quantity of drugs

they wanted to sell to Block. He testified that he did not know if these men ever made contact

with Block that day or whether they sold drugs to Block.

At the close of all the evidence, Block’s attorney renewed his motion for directed verdict.

The court again denied the motion. The jury convicted Block of possession of a controlled

substance with intent to deliver and simultaneous possession of drugs and firearms. Block filed

a timely notice of appeal.

An appeal from the denial of a motion for directed verdict is treated as a challenge to the

sufficiency of the evidence. Bangs v. State, 338 Ark. 515, 518, 998 S.W.2d 738, 741 (1999). We

will affirm the denial of a motion for directed verdict if substantial evidence, either direct or

circumstantial, supports the conviction. Harmon v. State, 340 Ark. 18, 22, 8 S.W.3d 472, 474

(2000). Substantial evidence is evidence which would compel a conclusion one way or the other

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with reasonable certainty, without relying upon mere speculation or conjecture. Id., 8 S.W.3d at

474. We view the evidence in the light most favorable to the State and consider only evidence

supporting the verdict. Butler v. State, 2009 Ark. App. 695, at 5, 371 S.W.3d 699, 702.

Inconsistent evidence does not render proof insufficient. Williams v. State, 351 Ark. 215,

222–223, 91 S.W.3d 54, 58–59 (2002). Circumstantial evidence may provide the basis for a

conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable

explanation of the crime. Harris v. State, 2014 Ark. App. 448, at 3, 439 S.W.3d 715, 717. The

question of whether the circumstantial evidence would support any other theory is for the jury

to decide. Ross v. State, 346 Ark. App. 225, 230, 57 S.W.3d 152, 156 (2001).

Block was convicted of possession of a controlled substance with intent to deliver under

Arkansas Code Annotated section 5-64-436(b)(3) (Supp. 2011) and simultaneous possession of

drugs and firearms under Arkansas Code Annotated section 5-74-106 (Supp. 2011). Block’s sole

argument on appeal, as to both convictions, is that the State failed to produce sufficient evidence

to support a finding that he possessed the marijuana discovered behind the shed.

When possession of contraband is an element of the offense, the State is not required to

prove literal physical possession. Kilpatrick v. State, 322 Ark. 728, 733, 912 S.W.2d 917, 920

(1995). We look to whether the contraband was located in a place that was under the dominion

and control of the accused. Holt v. State, 2009 Ark. 482, 348 S.W.3d 562. 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. Polk v. State, 348 Ark. 446, 453, 73 S.W.3d 609, 614

(2002). Constructive possession may be implied when the contraband is in joint control of the

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defendant and another person. Id. To prove constructive possession, the State must establish

that the defendant exercised “care, control, and management over the contraband.” Harrison v.

State, 371 Ark. 474, 482, 268 S.W.3d 324, 331 (2007). There must be some evidence that the

accused had knowledge of the presence of the contraband. Alexander v. State, 2009 Ark. App.

374. The defendant’s control over and knowledge of the contraband can be inferred from the

circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain

view, the ownership of the property where the contraband is found, and the accused’s suspicious

behavior. Loggins v. State, 2010 Ark. 414, at 5, 372 S.W.3d 785, 790. Location of the contraband

in close proximity to the defendant has been held to be a sufficient linking factor to support a

constructive possession conviction. See McCastle v. State, 2012 Ark. App. 162, at 4–5, 392 S.W.3d

369, 372. The Arkansas Supreme Court has also considered the improbability that anyone other

than the defendant placed the contraband in the location and the improbable nature of the

defendant’s explanations. Kilpatrick, 322 Ark. at 733–34, 912 S.W.2d at 920; Mings v. State, 318

Ark. 201, 207–09, 884 S.W.2d 596, 600–01 (1994).

In Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003), and Hodge v. State, 303 Ark. 375,

797 S.W.2d 432 (1990), our supreme court addressed constructive possession of contraband

discovered in an area entirely outside the defendant’s control and exposed to the public at large.

The court reversed both convictions, holding that the State must provide more definite factors

linking the defendant to the contraband than would be sufficient had the narcotics been

discovered in a privately-controlled area. Garner, 355 Ark. at 89–90, 131 S.W.3d at 738–39;

Hodge, 303 Ark. at 377–78, 797 S.W.2d at 434. In both Garner and Hodge, the drugs were found

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along the side of heavily-traveled public roads, within a short distance from the roadway. Garner,

355 Ark. at 89–90, 131 S.W.3d at 738–39; Hodge, 303 Ark. at 377–78, 797 S.W.2d at 434. The

Court noted in both cases that the location of the drugs made it feasible that they could have

been tossed from any passing car. Garner, 355 Ark. at 89–90, 131 S.W.3d at 738–39; Hodge, 303

Ark. at 377–78, 797 S.W.2d at 434. In both Garner and Hodge, the Court noted that neither drugs

nor large sums of money were found on the defendants, and the defendants were not observed

in close physical proximity to the drugs. Garner, 355 Ark. at 89–90, 131 S.W.3d at 738–39; Hodge,

303 Ark. at 377–78, 797 S.W.2d at 434.

Unlike in Garner and Hodge, substantial evidence supports Block’s convictions. Block was

observed emerging from behind the shed, in close proximity to the drugs. The shed was

approximately fifteen to twenty feet from the road, and the drugs were located behind the shed,

eliminating the possibility that the drugs could have been tossed from a passing car. Additionally,

the officers testified that the bag was clean and dry despite the rain, indicating that it had been

placed behind the shed immediately before it was discovered. The officers testified that Block

began acting very nervous and making spontaneous statements about spending Christmas in jail

when it became obvious that the officers were going to search behind the shed. Suspicious or

nervous behavior has been recognized as a linking factor in constructive-possession cases.

Loggins, 2010 Ark. 414, at 5, 372 S.W.3d at 790. Unlike in Garner and Hodge, Block had a large

amount of cash on him when he was arrested. Finally, Block admitted to having a gun, and

previous cases have recognized that there is a nefarious relationship between possession of guns

and drugs. Kilpatrick, 322 Ark. at 734, 912 S.W.2d at 920 (“This court has recognized that

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firearms are considered a tool of the narcotics dealer’s trade.”); Walker v. State, 301 Ark. 218, 221,

783 S.W.2d 44, 46 (1990). We hold that the evidence, taken together, sufficiently links Block to

the marijuana discovered behind the shed, and substantial evidence supports both convictions.

Affirmed.

WHITEAKER and HOOFMAN, JJ., agree.

Scholl Law Firm, P.L.L.C., by: Scott A. Scholl, for appellant.

Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.

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