Mark Morgan v. State of Arkansas

Cite as 2021 Ark. App. 220
ARKANSAS COURT OF APPEALS
Elizabeth Perry
I attest to the accuracy and DIVISION III
integrity of this document No. CR-20-455
2023.06.27 11:47:18 -05'00'
2023.001.20174
Opinion Delivered May 5, 2021
MARK MORGAN
APPEAL FROM THE BENTON
APPELLANT COUNTY CIRCUIT COURT
[NO. 04CR-19-926]
V.
HONORABLE ROBIN F. GREEN,
JUDGE
STATE OF ARKANSAS
AFFIRMED
APPELLEE

LARRY D. VAUGHT, Judge

Mark Morgan appeals his conviction by a Benton County Circuit Court jury of

possession of a controlled substance and possession of drug paraphernalia, both Class D

felonies. We affirm.

At the jury trial on December 3, 2019, Detective Rick Yager with the Rogers Police

Department testified that on April 10, 2019, he was watching a known drug-trafficking

business when he saw Morgan enter the business and spend approximately fifteen minutes

inside. Consistent with the department’s investigative practice, after Morgan exited the

business and drove away, “Detective Yager followed Morgan to look for a traffic violation

allowing Yager to initiate a traffic stop.” 1 Detective Yager noticed the passenger in Morgan’s

1This was clearly a pretextual stop. However, Morgan does not challenge it, and it is

well-settled law in Arkansas that “a pretextual stop does not violate federal constitutional law
or the Arkansas Constitution.” Lawson v. State, 89 Ark. App. 77, 83, 200 S.W.3d 459, 463 (2004)
car was not wearing a seat belt, and he pulled the car over. The passenger was later identified

as Melinda Murch. When Detective Yager got out of his car, he scanned the ground at the

front of his car to look for any discarded items. This is part of his normal procedure because

people tend to throw evidence out the window when getting pulled over. At that time, nothing

was located on the ground in front of his patrol car.

Detective Yager then approached Morgan’s vehicle and notified Morgan why he

stopped him. Morgan began to laugh awkwardly at an inappropriate level. Detective Yager

asked Morgan to step out of his car and noted that Morgan almost turned backwards while

trying to get out. Once out of the vehicle, Morgan was positioned in front of Detective Yager’s

patrol car so he could be questioned about his relationship with Murch. After questioning

Morgan, Detective Yager approached Morgan’s car and talked to Murch, who was on

probation and had a search waiver on file. Once a second officer arrived to supervise Morgan

and Murch, Detective Yager used a drug-detection dog to perform an exterior sniff of the car.

The dog alerted to the car two times—both on the driver’s-side door—triggering a manual

search of the car. Detective Yager began his search on the passenger side of the car. In the

passenger floorboard, he located a female’s purse that contained a glass smoking pipe. Murch

was then taken into custody.

At this point in the stop, Detective Yager had to move his patrol car to accommodate

a nearby business. Prior to moving his patrol car, Detective Yager moved Morgan away from

the front of the car and noticed an Altoids tin on the ground. Detective Yager opened the tin

(citing Ohio v. Robinette, 519 U.S. 33 (1996); Whren v. United States, 517 U.S. 806 (1996); State v.
Harmon, 353 Ark. 568, 113 S.W.3d 75 (2003)).

2
and determined that it contained a small bag of methamphetamine. Morgan was arrested, and

Detective Yager continued his search of Morgan’s car. During the search, he located a glass

methamphetamine smoking pipe in the driver’s seat. Morgan initially denied any knowledge

or ownership of the pipe or methamphetamine. He later stated that someone must have left

the pipe in his car.

Detective Yager also testified that, after the traffic stop had concluded, he reviewed the

footage of the stop from his dash cam. The video showed that when Detective Yager left

Morgan alone at the front of his patrol car to go speak with Murch, Morgan removed

something from his pocket and dropped it on the ground.

Murch testified that as they were getting pulled over, Morgan told her that he had a

pipe in the car. Additionally, she testified that she did not have an Altoids tin or any

methamphetamine on her person on the day of the stop. She also admitted that she and

Morgan had smoked methamphetamine together earlier in the week.

Morgan was convicted of possession of a controlled substance, less than two grams of

methamphetamine, a Class D felony; and possession of drug paraphernalia, also a Class D

felony. He was sentenced to four months in a Community Correction Center and three years’

probation. He now appeals his convictions, alleging that the circuit court erred when it denied

his motion for directed verdict. This appeal follows.

In reviewing a challenge to the sufficiency of the evidence, this court determines

whether the verdict is supported by substantial evidence, direct or circumstantial. Williams v.

State, 375 Ark. 132, 135–36, 289 S.W.3d 97, 100 (2008). Substantial evidence is evidence

forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.

3
Id. This court views the evidence in the light most favorable to the verdict, and only evidence

supporting the verdict will be considered. Sandrelli v. State, 2015 Ark. App. 127. On appeal, the

appellate courts treat a motion for directed verdict as a challenge to the sufficiency of the

evidence. Anderson v. State, 2011 Ark. 461, 385 S.W.3d 214. “Variances and discrepancies in

the proof go to the weight or credibility of the evidence and are matters for the fact-finder to

resolve. 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. Accordingly, when there is

evidence of a defendant’s guilt, even if it is conflicting, it is for the jury as fact-finder to resolve,

not the court.” Wiseman v. State, 2017 Ark. App. 371, at 1–2, 526 S.W.3d 4, 6 (internal citations

omitted). Circumstantial evidence may provide the basis to support a conviction, but it must

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

Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).

For his first point on appeal, Morgan argues that the State failed to present sufficient

evidence to prove constructive possession of the drug paraphernalia. Arkansas Code

Annotated section 5-65-443(a)(2) (Repl. 2016) prohibits possession of drug paraphernalia with

the purpose to ingest, inhale, or otherwise introduce methamphetamine into the human body.

“Possess means to exercise actual dominion, control, or management over a tangible object.”

Ark. Code Ann. § 5-1-102(15) (Repl. 2016). To convict a person of possession, the State is not

required to prove actual possession, “constructive possession,” which is the control or right

to control, is sufficient. Franklin v. State, 60 Ark. App. 198, 202, 962 S.W.2d 370, 372 (1998).

Constructive possession requires that the State prove that the defendant exercised care,

control, and management over the contraband and that the accused knew the matter possessed

4
was contraband. Id. Constructive possession can be inferred when the contraband is in the

joint control of the accused and another. Id. However, joint occupancy of a vehicle, standing

alone, is not sufficient to establish possession or joint possession. Id. There must be some

other factor linking the accused to the contraband. Id. Other factors to be considered in cases

involving vehicles occupied by more than one person 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; (4) whether the accused

owned the car or exercised dominion and control over it; and (5) whether the accused acted

suspiciously before or during the arrest. Id.

While the State claims that there was evidence supporting all five factors in this case, a

more accurate assessment is that some, but not all, of the factors were met: (1) the pipe was

found wrapped in a tissue on the driver’s seat in plain view, (2) it was not found among

Morgan’s personal effects, (3) it was found on his side of the vehicle, (4) Morgan owned the

car and was driving at the time of the stop, and (5) Detective Yager testified that Morgan’s

“awkward laugh” and the strange way he exited the vehicle were suspicious. In addition to

these factors, Murch’s testimony supports a finding of constructive possession. She testified

that she and Morgan had used methamphetamine together earlier in the week and that as they

were getting pulled over, Morgan told her he had a pipe in the car.

Morgan also challenges the sufficiency of the evidence regarding the methamphetamine

found in the Altoids tin. He claims that the tin was found on the ground near a spot where

both Morgan and Murch stood and that this was a known drug area, making it more likely that

someone else had left the tin on the ground. When narcotics are found in an area entirely

5
outside the control of the defendant and exposed to the public at large, the State must provide

more definite factors linking the defendant to the contraband. Garner v. State, 355 Ark. 82

(2003); Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990). Morgan claims that although

testing was available, the State chose not to test the tin for fingerprints, the drug-detection dog

did not alert on Morgan to indicate that he had drugs on his person, and Murch did not testify

that Morgan had any narcotics when they were stopped. We find no reversible error. The State

introduced into evidence the dash-cam video that shows Morgan doing something that could

reasonably be interpreted as removing an item from his pocket and dropping it on the ground

in the same spot where the Altoids tin was discovered. Moreover, while Murch did not

specifically testify that Morgan possessed methamphetamine at the time of their stop, her

testimony that the pair had smoked methamphetamine together earlier in the week bolsters

the evidence of constructive possession. Morgan had just been observed leaving a business

known for illegal drug sales, possessed a pipe used to smoke methamphetamine, had recently

smoked methamphetamine with Murch, and was caught on video dropping something on the

ground in the area where the drugs were found. We therefore affirm.

Affirmed.

KLAPPENBACH and WHITEAKER, JJ., agree.

Dusti Standridge, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael L. Yarbrough, Ass’t Att’y Gen., for appellee.

6