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Reason: I attest to the accuracy and integrity of this ARKANSAS COURT OF APPEALS document Date: 2021-07-13 13:05:45 DIVISION III Foxit PhantomPDF Version: No. CR-20-149 9.7.5

DERTAVIOUS CAIN Opinion Delivered: October 7, 2020

APPELLANT APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT V. [NO. 35CR-18-583]

STATE OF ARKANSAS HONORABLE ROBERT H. WYATT, JR., JUDGE

APPELLEE AFFIRMED

MEREDITH B. SWITZER, Judge

Dertavious Cain was tried by the Jefferson County Circuit Court and found guilty

of one count of simultaneous possession of drugs and firearms, one count of possession of

cocaine with intent to deliver, and one count of possession of marijuana with intent to

deliver.1 For his sole point of appeal, Cain contends the circuit court erred in denying his

motions for dismissal because the State failed to present substantial evidence that he actually

or constructively possessed the firearm, cocaine, and marijuana. We affirm.

This case was tried on November 21, 2019. Tamica Oswalt testified that she was

employed by the Pine Bluff Police Department Violent Crimes Unit on September 26,

2018, when she and her partner were patrolling in an unmarked vehicle. They noticed a

vehicle with a broken headlight but did not initiate a traffic stop until the vehicle ran a red

1 Cain was also charged with the use or possession with intent to use paraphernalia— i.e., digital scales—to weigh, package, or repackage drugs. That charge was dismissed by the circuit court because there was no evidence of paraphernalia introduced. light. The tags were valid, but the driver was not able to provide proof of insurance for the

vehicle. He had no driver’s license, and the intermediate certificate he provided stated that

he was not allowed to drive unless accompanied by a licensed driver. Cain was identified

as the driver and sole occupant of the car. Oswalt testified that Cain told her the vehicle

was not his. He reported that it belonged to his friend’s mother. He gave the officer the

mother’s name but would not reveal his friend’s name. He also told them that the mother

was out of town. Oswalt explained that they eventually spoke with someone they believed

to be the vehicle’s owner but that they had the vehicle towed because ownership could not

be established with certainty. She stated that Cain was offered the opportunity to leave after

he was given a citation, but he did not do so. Cain told her his “home boy was kind of

shady and he didn’t know what he had in the vehicle and he didn’t want to catch any new

charges.” She described Cain as acting extremely nervous and apprehensive and stated that

he did not want to let them in the car.

Officer Oswalt conducted an inventory search of the vehicle. Cain was detained

without restraints when the search began. Oswalt explained that in an inventory search,

officers check for anything of value in the vehicle prior to having it towed so that when the

vehicle is retrieved, everything is listed. She testified that when she bent down with her

flashlight and entered the car, she was able to see the gun. Cain was then placed in handcuffs.

She said the pistol, with an extended magazine, was underneath the driver’s seat. She said

the gun was loaded, and the extended magazine could hold thirty rounds. She also found a

bag under the driver’s seat “in the middle of the long bench seat where the bars connect.”

The bag contained small, individually wrapped items she believed to be crack rocks. She

2 also located a backpack in the floorboard of the back seat that had several ounces of

marijuana in a vacuum-sealed container. She described several other items that were found

in the vehicle and in its trunk, which contained identifying information related to other

persons. She said she and her partner then contacted a detective and the vice and drug unit.

On cross-examination, Oswalt further explained that when the purported owner was

contacted, she said she would not be able to pick up the car, and Oswalt said they could

only release it to the owner. She stated that once the vehicle door was opened and the light

on, she could see the end of the gun under the driver’s seat. She acknowledged that she did

not think any of the items found in the vehicle specifically identified Cain. She listed several

items found in the car that had the names of other persons in or on them: for example, a

bank card belonging to J.S., a backpack (not the one containing the marijuana) that

contained something in it relating to T.M., a receipt with a last name that began with “H,”

some paperwork in the trunk that belonged to C.A., and some documentation in the trunk

related to M.W. She explained that Cain’s arrest was based on the fact that he was driving

the car and in possession of it when the contraband items were found during an inventory

search.

Officer Jason Boykin testified that he was working with his partner, Tamica Oswalt,

on September 26. He participated in the traffic stop leading to Cain’s arrest. He confirmed

that there were no other occupants in the car. He stated that he stood with Cain on the

outside of the vehicle while Officer Oswalt conducted the inventory search. He explained

that department policy required placing the subject in handcuffs for officers’ safety if drug

paraphernalia or drugs were found inside a vehicle. He said if it is a felony amount, they

3 call the vice and narcotics unit. Boykin said he was there when Detective Richard

McCorvey arrived and took photos. He explained it was also department policy to call

crime-scene technicians if there was evidence that needed to be secured. Crime-scene

technician Erin Mothershed responded to the call, and Boykin was there when she arrived.

Boykin stated that he stayed with Cain while the detective and the crime-scene tech

processed the scene. On cross-examination, he stated that he was not aware of anything

found in the car that identified Cain in any way.

Detective Richard McCorvey testified that he worked with the Pine Bluff Vice and

Narcotics Unit and responded to the scene of a traffic stop on September 26. Cain was the

vehicle operator. He said that he saw the items recovered from the car, including the

handgun found under the front seat, but that it had already been secured in the patrol car

when he arrived. He said the plastic bag retrieved from the car contained individually

packaged bags with an aggregate weight of nine grams. He suspected the bags contained

crack cocaine. He described the marijuana that was found in the floorboard of the back-

passenger’s seat as weighing approximately one pound, packaged in a vacuum-sealed bag,

and contained inside a camouflage-print backpack.

Erin Mothershed testified that she was the crime-scene technician with the Pine Bluff

Police Department who responded to the traffic stop involving Cain. She reviewed for the

court the crime-scene photographs of evidence retrieved from the vehicle. She

acknowledged that the vehicle registration for the car had a name other than Cain’s, no

fingerprints obtained identified Cain, and nothing in the vehicle had Cain’s name on it.

4 Terra Lucas, a forensic chemist with the Arkansas State Crime Laboratory, testified

that she tested two samples taken from the vehicle. The greenish-brown, vegetable-like

substance that was taken tested positive for marijuana, and the loose off-white, rock-like

substances tested positive for cocaine. On cross, she acknowledged that nothing about her

testing would tell who had touched, held, or possessed the substances.

Sergeant William Lambert testified that he was employed with the evidence section

of the Pine Bluff Police Department. As custodian of the evidence, he testified regarding

the identification system and chain of custody of the evidence.

The State rested after Lambert’s testimony. Cain’s counsel moved for dismissal

arguing that the State had failed to prove the additional factors that should be considered

regarding automobile cases and constructive possession. In particular, he argued that the

marijuana was found in a backpack in the back seat, it had no ties to Cain and was located

near other items containing identification related to other persons, and that items in the

trunk of the car also identified other persons but not Cain. Counsel argued that the State

did not put on substantial proof to show that Cain knew about any of the contraband or

that he was in possession of, had knowledge of, or had the right to control it. The circuit

court granted the motion to dismiss with respect to the paraphernalia charge (see footnote

1) but denied the motions regarding the remaining charges.

A motion to dismiss in a bench trial is a challenge to the sufficiency of the evidence.

Sharp v. State,

,

. The test for determining the

sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct

or circumstantial. Polk v. State,

,

(2002). Substantial evidence

5 is evidence forceful enough to compel a conclusion one way or the other beyond suspicion

or conjecture.

When a defendant challenges the sufficiency of the evidence convicting

him, the evidence is viewed in the light most favorable to the State.

Only evidence

supporting the verdict will be considered.

Circumstantial evidence provides the basis to support a conviction if it is consistent

with the defendant’s guilt and inconsistent with any other reasonable conclusion.

Such

a determination is a question of fact for the fact-finder to determine.

The credibility of

witnesses is an issue for the fact-finder.

The trier of fact is free to believe all or part of

any witness’s testimony and may resolve questions of conflicting testimony and inconsistent

evidence.

We will disturb the fact-finder’s determination only if the evidence did not

meet the required standards, thereby leaving the fact-finder to speculation and conjecture

in reaching its verdict.

When we review a challenge to the sufficiency of the evidence,

we will affirm the conviction if there is substantial evidence to support it.

I. General vs. Increased Inquiry

In Polk,

,

, our supreme court addressed the level

of scrutiny applicable in a situation involving a single occupant in a borrowed car or a car

owned by another, and explained:

To date, this court has not determined whether a single occupant in a borrowed car or car owned by another is only subject to the general inquiry for constructive possession, or whether the single occupant may benefit from the increased inquiry afforded those in a joint-occupancy situation. We hold that in such situations, the State need only prove constructive possession of the contraband without including any inquiry into the elements for joint occupancy.

(Emphasis added.)

6 Here, Cain was a single occupant in a borrowed car, purportedly owned by the

mother of the young man from whom he borrowed it. Those facts clearly place this case

under the Polk decision and the general inquiry it applied for constructive possession. We

are not convinced that the other items found in the vehicle identifying other persons must

shift our analysis toward Pokatilov v. State,

,

. In Pokatilov,

our supreme court determined that the increased inquiry involving proof of other factors

linking the defendant to the contraband was appropriate in a situation involving a single

occupant of an automobile-transport truck, where the contraband (marijuana) was not

found in the carrier but was instead located in a vehicle that belonged to another person and

was being transported by the defendant. In reaching that conclusion, the supreme court

cited McKenzie v. State,

,

(2005), wherein the court held that

the State was required to prove other factors linking the defendant to contraband when the

contraband was located in a trailer of an eighteen-wheel truck. We have concluded that

the circumstances presented here are distinguishable from those presented in Pokatilov and

McKenzie because, here, the contraband was located in close proximity to Cain. The

heightened inquiry is therefore not required, and the State need only prove constructive

possession.

Constructive possession is the control or right to control the contraband. Bens v.

State,

,

. Constructive possession may be implied when

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

subject to his or her control.

Constructive possession may be established by

7 circumstantial evidence, but when such evidence alone is relied on for conviction, it must

indicate guilt and exclude every other reasonable hypothesis.

II. Substantial Evidence Supporting Constructive Possession

The contraband underlying Cain’s convictions are (1) a loaded pistol, with an

extended magazine, found underneath the driver’s seat; (2) a bag that contained small,

individually wrapped items, later confirmed as cocaine, also found under the driver’s seat

“in the middle of the long bench seat where the bars connect”; and (3) a backpack

containing several ounces of marijuana in a vacuum-sealed container, found on the

floorboard of the back seat behind the passenger seat. As discussed previously, when a single

occupant is in a car owned by another, the State need only prove constructive possession of

the contraband without including any inquiry into the elements for joint occupancy, and

constructive possession can be implied when the contraband is found in a place immediately

and exclusively accessible to the accused and subject to his or her control. Dyas v. State,

,

(citing

Officer Oswalt testified that the gun was found under the driver’s seat along with the

bag containing small, individually wrapped items that later proved to be cocaine. Detective

McCorvey testified that the backpack containing the marijuana was found in the floorboard

of the back seat behind the passenger seat. These three items of contraband were thus found

in places immediately and exclusively accessible to Cain and subject to his control. See, e.g.,

(methamphetamine was found inside a plastic bag that was inside a black bag

that was inside a small ice chest located in the front passenger floorboard and visible and

accessible from the driver’s seat); see also

(officer saw part of a handgun under the

8 driver’s seat when the defendant opened the driver’s door to retrieve a “blunt”);

(officer saw “a lump” in the rear passenger-side floor mat, and underneath the mat he found

a loaded .380 semiautomatic handgun that had been reported as stolen, and although the

gun was not visible without moving the floor mat, the “lump” was something that jumped

out at the officer).

In addition to evidence of constructive possession, other evidence indicating Cain’s

guilt included Oswalt’s testimony that Cain was extremely nervous; he did not want the

officers searching the car; and he volunteered to Oswalt that the person from whom he

borrowed the car, “his home boy,” was “kind of shady,” Cain didn’t know what he had in

the vehicle, and he didn’t want to catch any new charges—all of which support the notion

that he knew the car contained contraband. Viewing the evidence in the light most

favorable to the State, we do not think the circuit court was left to speculation and

conjecture in reaching its verdict and hold that substantial evidence supports Cain’s

convictions.

Affirmed.

ABRAMSON and BROWN, JJ., agree.

Digby Law Firm, by; Bobby Digby II, for appellant.

Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.

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