Bryant v. State

1

2023 Ark.App. 215

JAYLON BRYANT APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-22-504

Court of Appeals of Arkansas, Division I

April 12, 2023

APPEAL FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-21-193] HONORABLE ROBERT B. GIBSON III, JUDGE

Lisa-Marie Norris, for appellant.

Tim Griffin, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

WENDY SCHOLTENS WOOD, JUDGE

Jaylon Bryant appeals the sentencing order entered by the Drew County Circuit Court convicting him of possession of over fourteen grams of marijuana with the purpose to deliver possession of drug paraphernalia, and simultaneous possession of drugs and a firearm. He was sentenced to an aggregate term of fifty-nine years' imprisonment. On appeal, Bryant challenges the sufficiency of the evidence for each of his three convictions. We affirm the convictions but remand to correct the sentencing order.

On June 9, 2021, while on routine patrol in Drew County, Arkansas State Police Officer Tyler Grant stopped Bryant for speeding. There were three passengers in the car with Bryant. After requesting Bryant's license, registration, and insurance Officer Grant told Bryant that he "smell[ed] weed pretty heavy" and asked whether they had any marijuana in the vehicle. Bryant handed Officer Grant a plate with marijuana that was sitting on the front driver-side dashboard, and Officer Grant asked him if that was all that was in the car. Bryant said, "Yes, sir." Officer Grant then asked again whether there was any other marijuana in the car, to which Bryant answered, "No, sir."

Officer Grant ordered Bryant and the three passengers to step out of the car while he conducted a search of the vehicle. He found two packages under the driver's seat containing what was later determined by the Arkansas State Crime Laboratory to be 50.5 grams of marijuana. He also discovered a Glock 17 pistol lying on top of the packaged marijuana. In the console between the front seats, he found a "blue cylinder," which contained small packages of what appeared to be marijuana, along with a digital scale. Officer Grant located a second firearm between the back-seat cushions. When he asked Bryant about the marijuana found under the driver's seat, Bryant was able to give an accurate estimate of the amount in both ounces and grams-two bags contained approximately an ounce each, or twenty-eight grams, and a smaller bag contained around seven grams.

Officer Grant testified that he arrested Bryant and allowed the other passengers to leave because Bryant "claimed the marijuana" and none of the passengers had outstanding arrest warrants. Officer Grant said that he "ran" the serial number of the gun found in the back seat determined it was not stolen, and returned it to the passenger claiming ownership. No one claimed ownership of the pistol found under the driver's seat. Officer Grant released the passengers, and Bryant gave them permission to drive the vehicle. Officer Grant's dash camera recorded the entire traffic stop, and it was played for the jury at trial.

Bryant testified that he had no knowledge of the marijuana or the firearms until Officer Grant took them out of the car. He said he knew the amount of marijuana because the bags were right in front of him when Officer Grant asked him their approximate weight. He also denied that he owned the car, testifying that it was owned by a friend of his. He said he did not tell Officer Grant that the marijuana belonged to any of the three passengers because he did not know whose marijuana it was. He said Officer Grant was lying when he testified that Bryant "claimed" the marijuana.

The jury found Bryant guilty on all three charges and recommended consecutive sentences of twelve years' imprisonment on possession of marijuana with the purpose to deliver, twelve years' imprisonment on possession of drug paraphernalia, and thirty-five years' imprisonment on simultaneous possession of drugs and a firearm. The circuit court accepted the jury's sentencing recommendations and entered a sentencing order. ^[1] This appeal followed.

When reviewing a challenge to the sufficiency of the evidence, we must assess the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Collins v. State, 2021 Ark. 35, at 4, 617 S.W.3d 701, 704. We affirm a conviction if substantial evidence exists to support it. Price v. State, 2019 Ark. 323, at 4, 588 S.W.3d 1, 4. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion without resorting to speculation or conjecture. Id., 588 S.W.3d at 4. Witness credibility is an issue for the fact-finder, which may believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. McKisick v. State, 2022 Ark.App. 426, at 4, 653 S.W.3d 839, 843.

Bryant first argues that the circuit court erred in denying his motion for directed verdict on the possession-of-marijuana conviction, claiming that there was nothing connecting him to the marijuana. He was convicted of possessing more than fourteen grams of marijuana with the purpose to deliver pursuant to Arkansas Code Annotated section 5-64-436(a), (b)(2) (Repl. 2016). "Possess" means "to exercise actual dominion, control, or management over a tangible object[.]" Ark. Code Ann. § 5-1-102(15) (Supp. 2021). He contends that driving the car and guessing the weight of the marijuana are not enough to establish possession.

In drug cases, it is not necessary for the State to prove literal physical possession of the contraband. Possession of contraband can also be proved by constructive possession, which is the control or right to control the contraband. Tubbs v. State, 370 Ark. 47, 50, 257 S.W.3d 47, 50 (2007); Matlock v. State, 2015 Ark.App. 65, at 5, 454 S.W.3d 776, 781. Constructive possession may be established by circumstantial evidence and can be inferred where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Szczerba v. State, 2017 Ark.App. 27, at 7, 511 S.W.3d 360, 365. While constructive possession may be implied when the contraband is in the joint control of the accused and another, joint occupancy of a car, standing alone, is not sufficient to establish possession. Malone v. State, 364 Ark. 256, 261, 217 S.W.3d 810, 813 (2005). There must be some other factor linking the accused to the contraband. Id. Other factors to be considered in cases involving vehicles occupied by more than one person are (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused's personal effects; (3) whether it is found on the side of the car where the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile or exercises dominion and control over it; and (5) whether the accused acted suspiciously before or during the arrest. Martin v. State, 2019 Ark.App. 509, at 3, 587 S.W.3d 623, 625. There is no requirement, however, that all, or even a majority, of the linking factors be present to constitute constructive possession of the contraband. Id., 587...