Jack Nelson Jones Professional Association

May 23-29, 2016

Jordan v. State, 2016 Ark. App. 255 (May 11, 2016)

This appeal comes from the Sebastian County Circuit Court, Fort Smith District, Honorable James O. Cox presiding. This case concerns constructive possession of a controlled substance.

Travis Wayne Jordan was staying at the Motel 6 in Fort Smith on October 1, 2014. That morning, he went to the motel office and paid for his room through the next day. Officer Travis Watkins and Corporal Joey Boyd were at the Motel 6 for other police-related business when they saw Jordan, whom they knew had a warrant for his arrest. A housekeeper informed Amanda Ibarra, the manager on duty that day, Jordan had been arrested. Ibarra explained that Motel 6 has a policy of immediately evicting a guest if he or she is arrested on the property. She testified that a guest’s arrest voids the contract with Motel 6 and that Motel 6 immediately becomes the custodian of the room. However, Ibarra also testified that Jordan did not sign a written contract to this effect and that guests were generally not informed of the eviction policy either verbally or in writing; in fact, there was no way Jordan would have known he had been evicted.

Ibarra entered the room around noon to check to ensure it was unoccupied and to pack Jordan’s belongings. She saw drugs and drug paraphernalia on the table, so she closed the door and immediately called police. Thereafter, somewhere around 2:30 p.m. or 3:00 p.m., Officer Watkins and Corporal Boyd returned to Motel 6. Boyd was informed by the prosecutor that he did not need a warrant because of the motel’s eviction policy. He also checked the motel’s guest registry and confirmed the room belonged to Jordan. In the motel room, Boyd and Watkins found empty baggies, digital scales, a straw for injecting narcotics and for moving narcotics to a scale to be weighed, three baggies containing what looked to be methamphetamine, and a marijuana cigarette. Jordan’s wallet containing his driver’s license was found near the contraband.

A jury trial was held, and thereafter the Defense moved for a directed verdict based on the sufficiency of the evidence and moved to suppress the evidence as the product of a warrantless search. The court denied the motion and the jury returned a guilty verdict. This article pertains to the motion for directed verdict based on the sufficiency of the evidence.

On appeal, the Court explained that circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Whether the evidence excludes every other hypothesis is left to the jury to decide. The credibility of witnesses is an issue for the jury and not the court. The Court noted that 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. In constructive-possession cases, the Court pointed out, 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. According to the Court, 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.

Arkansas Code Annotated section 5-64-420 makes it illegal to possess methamphetamines with intent to deliver. It provides that certain factors, such as the presence of the drug paraphernalia found in Jordan’s motel room, are considered when determining whether there was intent to deliver. However, Jordan’s motion challenged sufficiency of evidence with respect to the possession of the drugs and not possession of the drug paraphernalia; thus, the court only considered possession of the drugs. Further, Arkansas Code Annotated section 5-64-419(b)(4) dictates that a person is guilty of a Class A misdemeanor if he possesses less than 28 grams of marijuana.

The Court considered the testimony at trial. Ibarra testified Jordan was evicted pursuant to motel policy and upon entering his room saw drugs and drug paraphernalia. She immediately called police. Officers Boyd and Watkins, responding to her call, found empty Ziploc bags, digital scales, three bags containing what was later determined to be a total of 2.469 grams of methamphetamine, a marijuana cigarette, a pocket knife, a glass pipe, and a straw used for injecting narcotics. Jordan’s wallet – containing his driver’s license and other identification – was next to the drugs on the table. Jordan had paid for the room, and no one was listed with him on the guest registry; and Jordan told Boyd that he had been staying alone at the motel. Thus, the Court reasoned that the evidence was sufficient that Jordan was in possession of the drugs because he had exercised control over the motel room.

The Court also considered evidence that Jordan intended to deliver the methamphetamine. Officer Boyd and Paul Smith, director of the Sebastian and Crawford County Drug Task Force, testified that, in their experience, Ziploc bags and digital scales indicated that the methamphetamine was being weighed and packaged for sale and not for personal use. Smith also testified that the average user of methamphetamine possesses between .25 grams and one gram of the drug and that the amount found in Jordan’s room, over two grams, was generally considered a salable amount. Accordingly, the Court determined the State put forth sufficient evidence to support Jordan’s conviction for felony possession of methamphetamine with intent to deliver and to support his conviction for misdemeanor possession of marijuana. Affirmed.