Opinion
No. CACR12-361
11-14-2012
JAMARCUS RISPER APPELLANT v. STATE OF ARKANSAS APPELLEE
APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT
[CR-2010-118]
HONORABLE RICHARD L.
PROCTOR, JUDGE
AFFIRMED
DAVID M. GLOVER, Judge
In August 2010, appellant Jamarcus Risper pleaded guilty to residential burglary and theft of property, for which he was sentenced to five years' suspended imposition of sentence, fined $500, and assessed court costs and fees. The conditions of his suspended sentence included that he not commit an offense punishable by incarceration and that he not purchase, own, control, or possess any firearms. In November 2011, the State filed a petition to revoke Risper's suspended sentence, alleging that he committed the crime of theft by receiving by unlawfully receiving, retaining, or disposing of a stolen Colt .22-caliber revolver belonging to Robert Taylor; that he committed the offense of criminal use of a prohibited weapon by possessing a sawed-off shotgun; and that he also possessed a handgun on or about his person in a vehicle occupied by him that was readily available for use. At the revocation hearing held on February 7, 2012, the trial court found that Risper had violated the terms of his suspended sentence, revoked it, and sentenced Risper to concurrent ten-year sentences for the underlying offenses of residential burglary and theft of property. Specifically, the trial court found that Risper had committed theft by receiving with regard to the Colt revolver and that he unlawfully possessed the revolver and sawed-off shotgun. Risper now appeals, arguing that there was insufficient evidence to find that he possessed the guns. We affirm the revocation.
In a hearing to revoke, the burden is on the State to prove a violation of a condition of the suspended sentence by a preponderance of the evidence. Stultz v. State, 92 Ark. App. 204, 212 S.W.3d 42 (2005). The State need only show that the appellant committed one violation in order to sustain a revocation. Haley v. State, 96 Ark. App. 256, 240 S.W.3d 615 (2006). Evidence that would be insufficient for a criminal conviction may be sufficient for a revocation because of the differing burdens of proof. Id. The appellate courts defer to the trial court's superior position to determine credibility and the weight to be accorded testimony. Stultz, supra. When appealing the revocation of a suspended sentence, it is the appellant's burden to prove that the trial court's findings were clearly against the preponderance of the evidence. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001).
At the revocation hearing, Captain Cornelious Byrd of the Helena-West Helena Police Department testified that on June 15, 2011, he received information about someone driving a tan-colored Cadillac without tags chasing someone and allegedly shooting at them. Byrd radioed the dispatcher and other assisting officers that he observed a vehicle fitting that description and initiated a traffic stop. Byrd testified that the vehicle was occupied by three black males, with Risper being in the back seat; he observed weapons being taken from the vehicle by other officers, but he was not involved in the search of the vehicle. On cross-examination, Byrd stated that he did not know when Risper got into the vehicle but that he had searched Risper and no weapons were found on his person.
Lieutenant Dale Acosta of the Helena-West Helena Police Department testified that he was one of the officers who assisted in the stop of the Cadillac; that the vehicle was stopped within two or three minutes after he received the call; that Risper was in the back seat of the vehicle and was moving around a lot after the vehicle was stopped; and that he (Acosta) received permission from the driver and owner of the vehicle, Desmond English, to search it. Lieutenant Acosta stated that he searched the back seat where Risper was located, but he located nothing in or under the seat. However, the center console of the back seat opened into the trunk of the car, where several weapons, including a Colt .22 revolver, an AK-47, and a sawed-off shotgun, were located. The AK-47 had one round in it and a thirt-yround clip, and the Colt revolver had five rounds and one spent round. Lieutenant Acosta said that no shells were found in the back seat, and that Risper's fingerprints were not found on any of the guns or shell casings retrieved or on anything inside the car. He testified that, in his opinion, someone sitting in the back seat of the vehicle would have access to the vehicle trunk and the items in it.
Robert Taylor testified that his Colt .22 revolver was one of the items stolen in a burglary at his home in June 2011. Taylor identified the revolver in court as the one found in the vehicle.
Detective Dennis Cox of the Helena-West Helena Police Department testified that he was called to the scene after the traffic stop had been made and took the three weapons from the scene, as well as ammunition for the AK-47 and the Colt revolver. Detective Cox testified that he determined that the Colt revolver had been stolen from Robert Taylor and that Desmond English had recently purchased the AK-47. Detective Cox said that the back seat of the vehicle was configured so that when the back rest in the middle of the seat was folded down, there was access to the trunk area. He admitted on cross-examination that there was no physical evidence tying the guns to Risper.
Risper testified in his own defense. He affirmed the statement that he had previously given the police—that he had seen English and asked for a ride to his mother's house and that he did not know that there were guns in the vehicle.
On appeal, Risper argues that there was insufficient evidence to find that he possessed firearms in violation of conditions of his suspended sentence. To prove that Risper was in possession of a firearm, the State was not required to prove actual possession; constructive possession is sufficient and may be implied when contraband is in the joint control of the accused and another. Pogue v. State, 2010 Ark. App. 74, at 2. However, joint occupancy alone is insufficient to establish possession or joint possession—the State must also prove that the accused exercised care, control, and management over the contraband and that the accused knew the matter possessed was contraband. Id. at 2–3. There must be some other factor linking the accused to the contraband such as (1) whether it is in plain view; (2) whether it is found with the accused's personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity; (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. Hancock v. State, 2012 Ark. App. 338, at 5.
In the present case, Risper was not the owner of the vehicle, the firearms were not in plain view, and they were not found with Risper's personal effects. However, according to the testimony, Risper was the sole occupant of the back seat of the Cadillac, and the center of the back seat folded down to allow access to the trunk area, where the firearms were found. Additionally, the vehicle was stopped mere minutes after the call came in that a vehicle matching that description was chasing someone and shooting weapons. Furthermore, there was testimony that there was a lot of movement from Risper in the back seat after the vehicle was stopped. An accused's suspicious behavior, coupled with proximity to the contraband, is clearly indicative of possession. Polk v. State, 348 Ark. 446, 453, 73 S.W.3d 609, 614 (2002).
In support of reversal, Risper cites Leflore v. State, 79 Ark. App. 332, 87 S.W.3d 839 (2002), and Polk v. State, 75 Ark. App. 338, 57 S.W.3d 781 (2001). First, this court's decision in Polk, cited by Risper for the proposition that the appellant did not know that the contraband (gun) was in the vehicle, was overturned by our supreme court in Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Furthermore, we find Leflore distinguishable from the present case. There, guns were discovered in appellant's mother's home pursuant to a search warrant; his mother testified that the firearms belonged to her deceased husband; and appellant was not found in the bedroom where the firearms were located. Here, Risper was the person in the closest proximity to the firearms when the vehicle was pulled over minutes after reports of weapons being fired from a vehicle matching its description; he was moving around a great deal in the back seat when the vehicle was stopped; and the firearms were immediately accessible to Risper through the opening in the back seat of the vehicle. Given the lesser burden of proof for revocation—a preponderance of the evidence—we cannot say that the trial court's finding that Risper possessed the firearms was clearly against the preponderance of the evidence.
Affirmed.
GLADWIN and GRUBER, JJ., agree.
Wilson Law Firm, P.A., by: E. Dion Wilson, for appellant.
Dustin McDaniel, Att'y Gen., by: Rachel H. Kemp, Ass't Att'y Gen., for appellee.