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ARKANSAS COURT OF APPEALS DIVISIONS I & IV No. CR-22-644

TYLER AUSTIN LUCAS Opinion Delivered May 24, 2023 APPELLANT APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT V. [NO. 02CR-21-135]

STATE OF ARKANSAS HONORABLE CREWS PURYEAR, APPELLEE JUDGE

REVERSED AND DISMISSED

CINDY GRACE THYER, Judge

Appellant Tyler Lucas was charged with one count of possession of

methamphetamine with purpose to deliver1 and one count of possession of a Schedule VI

controlled substance (marijuana). An Ashley County jury found him guilty of both counts

and sentenced him to twenty-five years in the Arkansas Department of Correction. Lucas

filed a timely notice of appeal and now argues that the circuit court erred in denying his

motions for directed verdict.

Motions for directed verdict are challenges to the sufficiency of the evidence. Dougan

v. State,

,

. When reviewing the denial of a directed-verdict

1 The original charge of possession of methamphetamine with purpose to deliver was filed as a Class A felony; however, after subsequent testing revealed the weight of the methamphetamine to be less than ten grams, the State amended the count to a Class B felony. motion, this court will look at the evidence in the light most favorable to the State,

considering only the evidence that supports the verdict, and will affirm if there is substantial

evidence to support the jury’s conclusion.

Substantial evidence is that which is forceful

enough to compel reasonable minds to reach a conclusion one way or the other and permits

the trier of fact to reach a conclusion without having to resort to speculation or conjecture.

Except as provided by law, it is unlawful if a person possesses methamphetamine or a

Schedule VI controlled substance, such as marijuana, with the purpose to deliver it.

(a) (Supp. 2021) (possession of methamphetamine with intent to

deliver);

(a) (Repl. 2016) (possession of marijuana with intent to

deliver);

(a)(1) (Supp. 2021) (defining marijuana as a Schedule VI

controlled substance). To “possess” means “to exercise actual dominion, control, or

management over a tangible object.”

(15) (Supp. 2021).

At issue in this appeal is whether the State offered sufficient evidence to prove that

Lucas “possessed” the methamphetamine and marijuana. Under Arkansas law, possession

may be established by proof of actual possession or constructive possession. Martin v. State,

,

. Lucas’s conviction was premised on constructive,

rather than actual, possession. Constructive possession is the control of or right to control

the contraband. Matlock v. State,

,

. Constructive

possession may be established by circumstantial evidence and can be inferred where the

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

2 subject to his control. Szczerba v. State,

,

. However, while

constructive possession may be established by circumstantial evidence, when such evidence

alone is relied on for conviction, it must indicate guilt and exclude every other reasonable

hypothesis. Davis v. State,

,

. Whether circumstantial

evidence excludes every other reasonable hypothesis is a decision for the fact-finder; but

when the evidence leaves the fact-finder to speculate and conjecture, a conviction cannot

stand. Bradley v. State,

,

.

With these principles in mind, we examine the evidence presented by the State in its

case-in-chief. At trial, the State’s first witness was Tad Huntsman, a narcotics investigator

with the Ashley County Sheriff’s Department. Huntsman explained that on June 17, 2021,

he and other officers came into contact with Lucas at his father’s house in Crossett. Lucas

was asleep in a lawn chair under the carport when officers arrived. When Huntsman woke

him up, he appeared to be “under the influence” because he was slurring his words.

According to Huntsman’s testimony, other officers were with him, 2 and there was ultimately

a search of “a vehicle that belonged to the defendant.”3

The evidence that was seized from the vehicle––exhibit 1, four separate baggies

containing a green leafy substance; and exhibit 2, three bags containing a white crystalline

substance––was introduced without objection. Exhibit 2, the bags containing suspected

2 None of the other officers who were with Huntsman testified at Lucas’s trial. 3 The descriptive statement “a vehicle that belonged to the defendant” was part of the State’s questioning, not Huntsman’s answer.

3 methamphetamine, was collected from the front driver’s side floorboard directly under the

steering wheel; exhibit 1 was collected from the passenger’s seat. When asked what exhibit 1

was, Huntsman replied that it was marijuana. He explained that he came to that conclusion

on the basis of his experience and training. The State asked what things he looked for in

determining whether a substance is marijuana; Huntsman answered, “It’s a green leafy

substance that has a distinct smell.”

The State then asked about the way the marijuana was packaged. Huntsman said it

was bagged individually into four separate bags, which, in his experience, indicated that it

had been packaged for distribution or sale. Noting his prior experience in buying drugs in

his undercover work, Huntsman said that he had never weighed drugs during the course of

a purchase; instead, the person selling the drugs would have them already “packaged and

ready to go,” like the marijuana and methamphetamine in exhibits 1 and 2 were packaged.

He opined that in his experience and training, Lucas possessed the drugs for the purpose of

delivering them.

On cross-examination, Huntsman acknowledged that the truck where the drugs were

found was about twenty yards away from where Lucas was sleeping, noting it was parked

close to the road with the windows down. Huntsman did not recall finding the keys to the

truck, either in the vehicle or on Lucas’s person. Huntsman also conceded that he did not

run the tags on the truck. Rather, he said he had seen Lucas driving the truck and “just

kn[e]w it to be his vehicle,” although he had not seen him in that truck the day the drugs

were discovered.

4 The State’s only other witness was Christy Williford, a forensic chemist from the

Arkansas State Crime Laboratory. Williford testified that the substance found in the

floorboard of the truck was methamphetamine. She did not test the “green vegetable

material” found on the passenger seat.

The State then rested, and Lucas moved for a directed verdict, arguing that the State

had not proved that he was in actual or constructive possession of the methamphetamine or

the marijuana. The circuit court denied Lucas’s motion for directed verdict, noting it was

required to view the evidence in the light most favorable to the State at that juncture.

Regarding the issue of possession, the court noted that the material was taken from a truck

that had “been identified as being operated by Tyler Lucas at some point.” Lucas then rested

and renewed his motion, which the court again denied.

Lucas filed a timely notice of appeal and now argues on appeal that the circuit court

erred in denying his motions for directed verdict. More specifically, he argues that the State

failed to prove that (1) he was in actual or constructive possession of the contraband; (2) the

“leafy green” material found in the truck was marijuana; and (3) the possession was with a

purpose to deliver. We agree with Lucas’s first argument on appeal.

As noted above, constructive possession can be inferred when the contraband is

found in a place immediately and exclusively accessible to the defendant and subject to his

control. Loggins v. State,

,

. Moreover, constructive possession

may be established by circumstantial evidence, but when such evidence alone is relied on for

a conviction, it must indicate guilt and exclude every other reasonable hypothesis. Davis,

5

,

. Circumstantial evidence is evidence from which a

fact may be inferred. Taylor v. State,

,

.

Here, the State’s case was premised entirely on circumstantial evidence. Neither of

the State’s two witnesses testified that the contraband was found in a place immediately and

exclusively accessible to Lucas and subject to his control. The drugs were not found on

Lucas’s person; rather, they were found in a truck parked on property owned not by Lucas

but by his father. The truck was found in the driveway close to the road, with the windows

down. Lucas was not in the vehicle; he was found passed out in a lawn chair approximately

twenty yards away. The drugs were found in plain sight—the methamphetamine was found

on the floorboard under the steering wheel and the marijuana was just lying on the

passenger’s seat.

Moreover, there was no evidence regarding the ownership of the truck. Investigator

Huntsman conceded that he did not run the plates on the vehicle to determine ownership;

instead, he testified that he “just knew” it to be Lucas’s truck because he had seen him driving

it before. The State failed to present any other evidence that the truck belonged to Lucas.

The truck could just as easily have belonged to Lucas’s father since it was parked on his

property. There was no evidence concerning when Lucas last drove the vehicle or even

whether he was the last person to have driven the vehicle. The truck was found unlocked,

and the keys were not found on Lucas’s person. In fact, there was no evidence that the keys

were ever located. Thus, there was no evidence that the truck was in Lucas’s sole, exclusive

possession.

6 In Argo v. State,

,

(1996), this court reversed a felon-

in-possession-of-a-firearm conviction. The evidence introduced in that case showed that

police officers encountered the appellant and his brothers standing outside of a vehicle. The

appellant was holding an ax handle, and one of the brothers was holding a machete, which

he tossed into the vehicle. When an officer went to retrieve the machete, he observed a

shotgun in the front seat. At trial, the officer testified that no one was in the vehicle when

he retrieved the shotgun, no one admitted owning it, and the vehicle belonged to the wife

of one of the brothers. In addition, the officer testified that the vehicle was not locked, one

door was open, and a window was down. Finally, the officer testified that he did not see the

appellant in actual possession of the shotgun. This court reversed the conviction, holding

that the appellant “was not occupying the vehicle where the gun was found, he did not have

exclusive access to the gun nor did he exercise any control over it, the gun was not found on

his person or with his personal effects, and he did not own the vehicle in question or exercise

control over it.” Argo,

,

.

Likewise, here, Lucas was not occupying the truck where the drugs were found. The

doors were unlocked and the windows rolled down. The truck was parked close to the road.

The keys were never found. Thus, there was no evidence that the truck––and, concomitantly,

the drugs found therein––was in Lucas’s sole, exclusive possession. We therefore hold that

the evidence was insufficient to show that Lucas constructively possessed the drugs.

Accordingly, we reverse Lucas’s conviction.

Reversed and dismissed.

7 KLAPPENBACH, WOOD, and HIXSON, JJ., agree.

ABRAMSON and GLADWIN, JJ., dissent.

ROBERT J. GLADWIN, Judge, dissenting. Today, the majority reverses and dismisses

the conviction of a three-time-convicted drug felon.1 In doing so, the majority substitutes its

judgment for the judgment of a jury that found the evidence sufficient to convict. Because

it is not our job to reweigh the evidence or to speculate about evidence that was not

presented, I dissent.

When the sufficiency of the evidence is challenged, we consider only the evidence

that supports the verdict, viewing the evidence in light most favorable to the State. LeFever

v. State,

,

(2005). Furthermore, “a jury need not lay aside

its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s

guilt from improbable explanations of incriminating conduct.” Walley v. State,

,

(2003). With these principles in mind, the facts of this case are

very simple. Officer Tad Huntsman, a narcotics investigator, approached the appellant, who

was asleep in a lawn chair in his father’s carport. Huntsman recognized appellant’s truck,

which was parked approximately twenty yards from the appellant with the windows open.

When the officers woke Lucas, he appeared to be “under the influence.” A search of

appellant’s truck produced three bags of methamphetamine and four bags of marijuana. A

1 The appellant was previously convicted of possession of drug paraphernalia to manufacture in Ashley County Circuit Court case No. 02CR-17-71; and possession of methamphetamine or cocaine with the purpose to deliver in Ashley County Circuit Court case No. 02CR-19-32.

8 chemical analysis confirmed the presence of 2.6593 grams of methamphetamine. Huntsman

testified that the quantity of drugs was more than for personal use.

When possession of contraband is an element of the offense, the State is not required

to prove literal physical possession. Braswell v. State,

. Constructive

possession can be inferred when the contraband was found in a place immediately and

exclusively accessible to the accused and subject to his control.

To prove constructive

possession, the State must establish that the defendant exercised care, control, and

management over the contraband.

The defendant’s control over and knowledge of the

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

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

contraband is found, and the accused’s suspicious behavior.

The majority’s analysis begins with a discussion of the circumstantial evidence

concerning constructive possession. Of course, all constructive-possession cases involve

circumstantial evidence. The majority states that neither witness testified that the

contraband was found in a place immediately and exclusively accessible to Lucas or subject

to his control; however, the drugs were some twenty yards from the defendant—found in

plain view—in a vehicle known to be his. If the majority wishes to establish as a matter of

law that twenty yards is too great a distance to establish constructive possession, it should so

hold. If not, then the distance between the accused and the drugs is a question of fact for

the jury to determine whether appellant was in constructive possession.

9 The majority places a significant emphasis on the testimony concerning ownership of

the truck. This analysis is misplaced and simply wrong. Officer Huntsman testified that “he

knew” the truck belonged to Lucas. This testimony was admitted without objection, and the

jury was free to accept it. Is the majority holding that a law enforcement officer must “run

the tags” of a vehicle before he or she can properly identify it? Is it holding that a lay person

cannot identify the vehicle of another? Virtually any person could identify the vehicle of a

relative or neighbor. This would be admissible evidence. The ownership of a vehicle is not

the equivalent of the vehicle being subject to a person’s control. Drug traffickers often use

rented or stolen vehicles to transport drugs.

The majority cites Argo v. State,

,

(1996), in support

of reversal. Argo is easily distinguishable from our facts. In Argo, there was testimony that

the vehicle belonged to the wife of one of the brothers who was arrested; however, the

undisputed testimony here was that the vehicle belonged to appellant. Those facts are for

the jury to weigh and either accept or reject. Furthermore, there were four people in Argo

who had equal access to the vehicle while, in the present case, only Lucas was near the truck.

In order to reverse this case, the majority speculates that while Lucas was passed out

in his father’s carport, some unknown person or persons happened by and threw seven bags

of methamphetamine and marijuana into a vehicle owned by another unknown person that

coincidently was parked twenty yards from him, who remained oblivious to this activity. I

submit this is not a reasonable hypothesis, nor was any evidence presented to even suggest

such conjecture.

10 I strongly adhere to the principle that juries are the best fact-finders, and appellate

judges should not reweigh the evidence. Because this case should be affirmed, I dissent.

Abramson, J., joins.

Potts Law Office, by: Gary W. Potts, for appellant.

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

11