Omar D. Davis, Sr. v. State of Arkansas

2019 Ark. App. 463

• Court: Court of Appeals of Arkansas
• Decided: October 16, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 463

Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS DIVISION I Perry Date: 2022.08.03 14:11:33 No. CR-18-1016 -05'00' Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 16, 2019

OMAR D. DAVIS, SR. APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT, FIRST DIVISION [NO. 60CR-17-1387] V. HONORABLE LEON JOHNSON, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

WAYMOND M. BROWN, Judge

Appellant Omar Davis, Sr. appeals his conviction for possession of a firearm by a

felon. On appeal, he argues that the circuit court erred by denying his motion to dismiss at

the bench trial. Specifically, Davis contends that the evidence was insufficient to prove that

he constructively possessed the firearm. We affirm.

On February 15, 2017, the North Little Rock Police Department executed a search

warrant at a residence located at 2209 Railroad Street, North Little Rock. In the southwest

bedroom of the house, police recovered a loaded twelve-gauge shotgun and a blue bag

containing twenty-two twelve-gauge shotgun shells and mail addressed to Davis. Officer

Christopher Weaver testified that when he entered the southwest bedroom and initially

came into contact with Davis, he was within three feet of the shotgun and the shotgun was

in plain view. At the conclusion of the State’s case, Davis moved for dismissal on the grounds that there was insufficient evidence to show that he constructively possessed the

shotgun. The circuit court denied the motion. Davis then testified that the shotgun was

found in his fiancée’s bedroom, he did not live there with her, and he had no knowledge

of the shotgun. At the conclusion of the trial, the circuit court found Davis guilty of

possession of a firearm by a felon and sentenced him as a habitual offender to six years’

incarceration in the Arkansas Department of Correction. He now appeals.

A motion to dismiss at a bench trial is identical to a motion for directed verdict at a

jury trial in that it is a challenge to the sufficiency of the evidence. 1 This court will affirm

a circuit court’s denial of the motion if there is substantial evidence, either direct or

circumstantial, to support the verdict. 2 Evidence is substantial if it is of sufficient force and

character to compel reasonable minds to reach a conclusion and pass beyond suspicion and

conjecture. 3 The evidence is viewed in the light most favorable to the verdict, and only

evidence supporting the verdict is considered. 4

Arkansas Code Annotated section 5-73-103(a)(1) (Repl. 2016) provides that no

person who has been convicted of a felony shall possess or own any firearm. A showing of

constructive possession, which is the control or right to control the contraband, is sufficient

to prove possession of a firearm. 5 Constructive possession may be implied when the

1 Ark. R. Crim. P. 33.1 (2018); Warren v. State, 2019 Ark. App. 33, 567 S.W.3d 105. 2 Terry v. State, 2018 Ark. App. 435, 559 S.W.3d 301. 3 White v. State, 2014 Ark. App. 587, 446 S.W.3d 193. 4 Terry, supra. 5 McDaniel v. State, 2019 Ark. App. 66, 571 S.W.3d 43.

2 contraband is found in a place immediately and exclusively accessible to the accused and

subject to his or her control. 6 Some additional factors must be present to link the accused

to the contraband in cases involving joint occupancy. 7 Those additional linking factors

include (1) that the accused exercised care, control, or management over the contraband;

and (2) that the accused knew the matter possessed was contraband. 8 The control and

knowledge can be inferred from the circumstances, such as the proximity of the contraband

to the accused, the fact that it is in plain view, and the ownership of the property where the

contraband is found. 9

While Davis concedes that he was found in close proximity to the shotgun, he argues

that there are no linking factors sufficient to support a finding that he constructively

possessed the shotgun. We do not agree. Here, the shotgun was found in the bedroom in

plain view, within feet of Davis. Additionally, the bag of shotgun shells that was found

within that bedroom contained several pieces of mail addressed to Davis. Viewing the

evidence in the light most favorable to the verdict, we hold that there is substantial evidence

that Davis constructively possessed the firearm.

Affirmed.

KLAPPENBACH and HIXSON, JJ., agree.

6 Johnson v. State, 2014 Ark. App. 567, 444 S.W.3d 880. 7 Loggins v. State, 2010 Ark. 414, 372 S.W.3d 785. 8 Id. 9 Id.

3 William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,

for appellant.

Leslie Rutledge, Att’y Gen., by: Michael L. Yarbrough, Ass’t Att’y Gen., for appellee.