Page:Jones v. State, 357 Ark. 545 (2004).pdf/2

546 (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 same side of the car seat as 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. EVIDENCE–CONSTRUCTIVE-POSSESSION CONVICTION–SUPPORTED BY SUFFICIENT EVIDENCE.–The third and fourth factors for establishing constructive possession, which factors outweigh the others, were satisfied: when the officer stopped the vehicle, appellant was driving the vehicle, and the officer testified that five plastic bags with white residue were found directly behind the driver's seat of the vehicle, and appellant exercised dominion and control over the vehicle; additionally, a syringe, which was described as drug paraphernalia by a detective, was found on appellant's person. MOTIONS–MOTION FOR DIRECTED VERDICT PROPERLY DENIED–NO ERROR FOUND.–Although there was no testimony that appellant acted suspiciously, the supreme court believed that Dodson v. State, 341 Ark. 42, 14 S.W.3d 489 (2000), applied because of the combined third and fourth factors in addition to drug paraphernalia being found on appellant's person; in viewing the evidence in the light most favorable to the State, the supreme court could not say that the trial court erred in denying appellant's motion for directed verdict on the constructive-possession charge. CRIMINAL LAW–CASE HERE DISTINGUISHABLE FROM HARBISON–ENOUGH SUBSTANCE WAS FOUND IN BAGS TO WEIGH AND TEST.–A usable-amount criteria was adopted in Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), where the court determined that the appellant was found in possession of a bottle containing only cocaine dust or residue, which amount was too small to weigh with equipment at the state crime laboratory; thus, the supreme court held that appellant could not be convicted of possession of cocaine; the present case was distinguishable from Harbison, because here there was a usable amount of methamphetamine; there was enough substance in the plastic bags to weigh and to test; appellant possessed a total of 0.8839 grams, or 883.9 milligrams, of a methamphetamine-nicotinamide compound, which the expert testified was a usable amount; based upon uncontroverted expert testimony, the supreme