Page:Jones v. State, 357 Ark. 545 (2004).pdf/7

Rh [3, 4] We stated the rule regarding constructive possession of a controlled substance in George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004): "We have explained that the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused. Constructive possession may be established by circumstantial evidence. When seeking to prove constructive possession, the State must establish that the defendant exercised care, control, and management over the contraband. This control 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." George, supra (citations omitted).

[5] Further, we have opined that joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). There must be some other factor linking the accused to the drugs. Id. Other factors to be considered in cases involving automobiles occupied by more than one persons 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 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. Id.

Keeping these well-established principles in mind, we turn to our review of the sufficiency of the evidence of appellant's constructive-possession conviction. Appellant concedes in his brief that the third and fourth factors are satisfied: that he was driving the vehicle and that the substance was in near proximity to the driver's seat. However, appellant argues that, under the above Mings factors, the substance was not in plain view, that it was not in appellant's personal effects, and that there was no testimony that he acted suspiciously during his arrest.

[6] Appellant's argument is unavailing because the third and fourth factors outweigh the others. According to the testimony of Officer Carter, he was notified that a black male was