Pokatilov v. State

516 S.W.3d 285

Alexander POKATILOV, Appellant

v.STATE of Arkansas, Appellee

No. CR–16–522

Court of Appeals of Arkansas, DIVISIONS I, II & III.

Opinion Delivered March 8, 2017

Jeff Rosenzweig, for appellant.

Leslie Rutledge, Little Rock, Att'y Gen., Little Rock, by: Amanda Jegley, Ass't Att'y Gen., for appellee.

LARRY D. VAUGHT, Judge

A Lonoke County jury found Alexander Pokatilov guilty of possession of a Schedule VI controlled substance (marijuana) with the purpose to deliver. On appeal, Pokatilov argues that (1) there was insufficient evidence to support his conviction; (2) the circuit court abused its discretion by rejecting his proffered instruction on constructive possession; (3) the circuit court abused its discretion by refusing to reinstruct the jury with his proffered instruction on constructive possession; and (4) the circuit court erred in denying his motion to suppress evidence seized as a result of an illegal search. We affirm.

Pokatilov was an owner-operator of an automobile-transport carrier that moved vehicles from coast to coast. On March 6, 2014, he was carrying six vehicles when he was pulled over by Officer Jeremy Watkins of the Arkansas Highway Police on Interstate 40 in Lonoke County. At trial, Watkins testified that he observed a large commercial carrier loaded with vehicles drive several times over the white line onto the shoulder where there was ice left over from a snowstorm. Watkins stopped the vehicle.¹ Watkins advised Pokatilov that he was not keeping his vehicle in his lane, and Pokatilov became argumentative and said he was driving fine.

Watkins testified that he was certified by the Department of Transportation to conduct inspections on commercial vehicles and that it is standard procedure to obtain and review the truck and trailer registration, commercial driver's license, logbooks, and bills of lading on each automobile being transported. He instructed Pokatilov to produce his paperwork. According to Watkins, several things in the paperwork aroused his suspicion. He found excessive downtime in the logbooks, which was uncommon because carriers do not get paid for downtime. He stated that the logbooks showed Pokatilov to be off duty from February 9 to February 18 and from February 21 to March 3. Watkins also testified that the bills of lading were not filled out properly; they seemed "very, very generic." Some showed a customer's first name and no last name. Others did not have a customer name on them at all.

Pokatilov told Watkins that he had loaded the cars onto the trailer and that he knew there were items in some of the vehicles. Watkins also thought Pokatilov, who was sitting in the patrol car by this time, seemed nervous. When Watkins asked Pokatilov if he allowed people to put personal belongings in the cars he hauled, Pokatilov brought up the topic of marijuana, stating that if a vehicle he was carrying smelled like marijuana, he would report it to law enforcement. Watkins asked, "You don't think there's anything illegal in any of them?" Pokatilov responded, "Not really." Watkins testified that these indicators of criminal activities caused him to ask Pokatilov if he minded if Watkins searched the vehicles on the carrier, and Pokatilov answered, "Nope, not at all."

One vehicle stood out to Watkins—a 1995 Chevy Tahoe. Watkins was suspicious of this vehicle because it was the only one Pokatilov had picked up at a shopping center; the rest had been picked up at homes. Watkins also found it odd that someone would pay more than the 1995 Tahoe's value to have it hauled across the country. Watkins searched the Tahoe first and within minutes found two Rubbermaid containers and a Home Depot box in the cargo area. Watkins opened the containers and found multiple bags of what appeared to be marijuana.

Gene Bangs, a forensic chemist with the Arkansas State Crime Lab, testified that he tested twelve bags submitted by Watkins, that they were positive for marijuana, and that the marijuana weighed 32.37 pounds. Bangs testified that marijuana is a Schedule VI controlled substance.

Pokatilov testified that his business is called AAA Cargo Transport and that his wife works as a dispatcher and negotiates with brokers. He said that brokers had compiled the information about the vehicles on the dispatch sheets. He completed each bill of lading when he picked up a vehicle. He said filling out the bills of lading was redundant when all of the necessary information was on the dispatch sheet. He stated that he picked up six cars in California and Nevada for transport to North Carolina. He explained that he had excessive downtime in Las Vegas because his carrier had broken down. He said he had to order parts, wait for them to be delivered, and wait for the repair.

Pokatilov said that it was not unusual to pick up vehicles from somewhere other than a residence and that loading a vehicle in a parking lot was sometimes necessary to avoid damage to the vehicle. He testified that he did not think it was unusual to be hauling a nineteen-year-old vehicle and that he did not ask why people wanted their vehicles moved. He said that he had the keys to all of the vehicles and inspected them but that he did not look inside containers in the vehicles. After Watkins asked for consent to search the vehicles on the carrier, Pokatilov testified that he told Watkins, "Go for it. They're not my cars. I'm just a transporter." He denied any knowledge of the presence of marijuana in the Tahoe he was transporting, and he claimed that he was not nervous at all. The jury convicted him and sentenced him to five years' probation and a fine of $5,000. This appeal followed.

Pokatilov's first point on appeal is a challenge to the sufficiency of the evidence supporting his conviction. When reviewing the sufficiency of the evidence, we determine whether there is substantial evidence to support the verdict, viewing the evidence in the light most favorable to the State. Barrera v. State , 2012 Ark. App. 533, at 4, 2012 WL 4478394. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence. Id. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Id.

Pokatilov was convicted of possession of a Schedule VI controlled substance with the purpose to deliver pursuant to Arkansas Code Annotated section 5–64–436(a) (Supp. 2013). It is a Class B felony if the person possessed twenty-five pounds or more but less than one-hundred pounds by aggregate weight, including an adulterant or diluent, of a Schedule VI controlled substance. Ark. Code Ann. § 5–64–436(b)(4).

Actual possession of contraband is established if the State can show that an individual had direct physical control over it. Craig v. State , 314 Ark. 585, 589, 863 S.W.2d 825, 827 (1993). The State does not have to establish actual physical possession; rather, possession 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 may be inferred when contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Id. at 453, 73 S.W.3d at 614. The State satisfies its burden of showing constructive possession if it shows that contraband was found in a location under the accused's dominion and control. Id. , 73 S.W.3d at 614.

The majority of Pokatilov's argument under this point on appeal is that there was insufficient evidence presented at trial to prove that he knowingly possessed the marijuana. He cites three cases for support: Fultz v. State , 333 Ark. 586, 972 S.W.2d 222 (1998) ; Darrough v. State , 322 Ark. 251, 908 S.W.2d 325 (1995) ; and Boston v. State , 69 Ark. App. 155, 12 S.W.3d 245 (2000).

Fultz and Darrough are distinguishable because they are joint-occupancy cases and require the additional element that the defendant knew the matter possessed was a controlled substance. Fultz , 333 Ark. at 596, 972 S.W.2d at 226 ; Darrough , 322 Ark. at 253, 908 S.W.2d at 326. In Boston , our court employed a joint-occupancy analysis, including the knowledge element, where the facts established that the appellant was in one of two vehicles traveling together that were stopped by police and that the appellant had permitted a person he was traveling with to place her suitcase containing marijuana in the trunk of his car. Boston , 69 Ark. App. at 161–62, 12 S.W.3d at 249.

The case at bar is not a joint-occupancy case. Pokatilov was not traveling with anyone else, he was not stopped with another vehicle, and he was alone in his carrier when he was stopped. Therefore, constructive possession did not require the additional joint-occupancy element of knowledge. See Pyle v. State , 314 Ark. 165, 180, 862 S.W.2d 823, 831 (1993) ("When contraband is found in a place under a defendant's dominion and control a jury may infer constructive possession, but if joint control is established, proof of knowledge of the contraband is required."); Barrera v. State , 2012 Ark. App. 533, at 6, 2012 WL 4478394 (holding that the joint-occupancy cases cited by Barrera were inapposite as he was undisputedly the only person in the vehicle).

The case at bar is very similar to Barrera . There a jury convicted Barrera of possession of marijuana with intent to deliver and possession of drug paraphernalia. 2012 Ark. App. 533, at 1, 2012 WL 4478394. On appeal, Barrera argued that there was no evidence presented to indicate that he knew there was contraband in the truck he was hauling on his flatbed trailer. He contended that the truck he was towing on the trailer was open to access from the general...