Christopher Dougan v. State of Arkansas

Cite as 2023 Ark. App. 75
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-22-308

CHRISTOPHER DOUGAN Opinion Delivered February 15, 2023
APPELLANT
APPEAL FROM THE HOWARD
COUNTY CIRCUIT COURT
V. [NO. 31CR-20-27]

STATE OF ARKANSAS HONORABLE TOM COOPER, JUDGE
APPELLEE
AFFIRMED

STEPHANIE POTTER BARRETT, Judge

Appellant Christopher Dougan appeals his convictions by a Howard County Circuit

Court jury of possession of methamphetamine and possession of drug paraphernalia. He was

sentenced to serve a cumulative term of eight years in the Arkansas Department of

Correction and fined $8,000. On appeal, Mr. Dougan challenges the sufficiency of the

evidence supporting his convictions, and he additionally argues the circuit court erred in

denying his motion to suppress because the evidence was obtained through an illegal search

and seizure. We affirm.

This appeal arises from events that took place on February 19, 2020, when Nashville

Police Department Officer Jarrett Rogers performed a routine traffic stop of a vehicle in

which Mr. Dougan was a passenger. Following the traffic stop, Officer Rogers discovered Mr.

Dougan had an outstanding warrant for his arrest in Texas. Officer Rogers located Mr.
Dougan at a friend’s apartment and took him into custody for the outstanding warrant.

While walking to Officer Rogers’s patrol car, Mr. Dougan asked to retrieve his money from

the apartment. Officer Rogers informed Mr. Dougan that because he was under arrest, he

could not go back inside the apartment and offered to get Mr. Dougan’s money for him. Mr.

Dougan agreed. Officer Rogers informed the occupants of the apartment he needed Mr.

Dougan’s money and was handed a jacket that Mr. Dougan confirmed was his. Officer

Rogers looked through the coat to locate Mr. Dougan’s money, and in addition to finding

the money and Mr. Dougan’s identification, Officer Rogers discovered a glass pipe wrapped

in a paper towel and a black bag containing a Camel tobacco can that contained a quantity

of suspected methamphetamine.

On March 6, 2021, the State charged Mr. Dougan with one count of possession of

methamphetamine and one count of possession of drug paraphernalia. Mr. Dougan filed a

motion to suppress the evidence supporting his charges, arguing the search of the jacket and

the seizure of the pipe and suspected methamphetamine were illegal for two reasons: (1)

Officer Rogers did not have consent to search the jacket; and (2) because the jacket was not

in Mr. Dougan’s possession at the time of the arrest or afterwards, a search for weapons and

officer safety under Terry v. State, 2018 Ark. App. 435, 559 S.W.3d 301, was not appropriate.

The circuit court denied Mr. Dougan’s motion to suppress at a pretrial hearing held on

September 29, 2021.

A jury trial was held on October 26, 2021. Officer Rogers testified that Investigator

Mark Barnes had arrived at the scene of Mr. Dougan’s arrest to provide him with back up,

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and he had waited with Mr. Dougan while Officer Rogers retrieved the money from the

apartment. Officer Rogers testified, “Inside the jacket was Mr. Dougan’s money that he asked

for. Also, his identification was in there and that’s when I located the methamphetamine

and the paraphernalia.” When asked if Mr. Dougan was wearing the coat that contained the

methamphetamine and drug paraphernalia during the traffic stop, he testified Mr. Dougan

was not. Investigator Barnes testified that when Officer Rogers began searching the jacket,

Mr. Dougan started walking toward him, not aggressively, but in a manner that suggested he

was trying to take the jacket from Officer Rogers.1

At the conclusion of the State’s case, Mr. Dougan’s counsel moved for directed

verdict, arguing the State had not proved Mr. Dougan was in “actual and/or constructive

possession of paraphernalia or the drugs themselves.” The circuit court denied Mr. Dougan’s

motion for directed verdict.

The defense then presented its case, beginning with the testimony of Mr. Dougan.

He testified the warrant Officer Rogers initially arrested him for was for testosterone, and he

had pled guilty to that charge. Mr. Dougan testified he agreed to allow Officer Rogers to

retrieve his money from the apartment, and when Officer Rogers returned with the jacket,

Mr. Dougan informed Officer Rogers the jacket was not his. He testified that when Officer

Rogers started checking the pockets of the jacket and discovered the Camel tobacco tin

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Lauren McDonald, chief forensic chemist at the Arkansas State Crime Laboratory,
testified the materials in Mr. Dougan’s case confirmed the presence of 0.0918 grams of
methamphetamine.

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containing the suspected methamphetamine, he again informed Officer Rogers the jacket

and its contents were not his. Mr. Dougan testified that he and one of the male occupants

from the apartment had the same jacket, and he had tried the jacket on for Officer Rogers

to demonstrate the jacket was too big for him. He further testified he did not know how his

money and identification got into the jacket. However, on cross-examination, Mr. Dougan

admitted to writing a letter to the State where he stated it was a possibility he had put his

money and identification in the jacket pocket.

After the defense rested its case, Mr. Dougan renewed his motion for directed verdict,

which the circuit court again denied. The jury convicted Mr. Dougan of the charges of

possession of methamphetamine and possession of drug paraphernalia and recommended a

sentence of four years in the Arkansas Department of Correct and a $4,000 fine on each

count. The circuit court then sentenced Mr. Dougan accordingly and ordered the sentences

to be served consecutively.

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

v. State, 357 Ark. 43, 160 S.W.3d 341 (2004). Although Mr. Dougan challenges the

sufficiency of the evidence in his second point on appeal, double-jeopardy considerations

require this court to consider a challenge to the sufficiency of the evidence prior to the other

issues on appeal. Halliburton v. State, 2020 Ark. 101, 594 S.W.3d 856. When reviewing the

denial of a directed-verdict 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. Benson, 357 Ark. 43, 160

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S.W.3d 341. 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. Id.

Under Arkansas law, possession may be established by proof of actual possession or

constructive possession. Martin v. State, 2019 Ark. App. 509, 587 S.W.3d 623. Actual

possession occurs when a defendant has actual physical possession of contraband. Id.

However, to prove constructive possession of an illegal substance, the State must establish

that the defendant exercised care, control, and management over the contraband. Id.

Because Mr. Dougan did not physically possess the jacket containing the

methamphetamine and drug paraphernalia when it was discovered, the State was required

to prove he constructively possessed it. We hold there was sufficient evidence Mr. Dougan

constructively possessed the jacket containing the contraband. The testimony at trial

established that in addition to the illegal contraband found in the jacket, Mr. Dougan’s

money and identification were inside the pockets. Further, both Officer Rogers and

Investigator Barnes testified Mr. Dougan confirmed the jacket was his. While Mr. Dougan

testified the jacket and the contraband were not his, it is well settled that the credibility of

witnesses is an issue for the jury and not the appellate court. Airsman v. State, 2014 Ark. 500,

451 S.W.3d 565. Furthermore, the jury is free to believe all or part of any witness’s testimony

and may resolve questions of conflicting testimony and inconsistent evidence. Id. In doing

so, the jury may choose to believe the State’s account of the facts rather than the defendant’s

account. Id. Therefore, viewing the evidence in the light most favorable to the verdict, we

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cannot say the circuit court erred in denying Mr. Dougan’s motion for directed verdict. See

Benson, 357 Ark. 43, 160 S.W.3d 341.

Mr. Dougan next contends the circuit court erred in denying his motion to suppress

the contraband found in the jacket because it was obtained through an illegal search and

seizure. This court reviews a circuit court’s denial of a motion to suppress de novo, looking

at the totality of the circumstances, reviewing the circuit court’s findings of fact for clear

error, and giving due deference to inferences drawn by the circuit court. Bedsole v. State, 104

Ark. App. 253, 290 S.W.3d 607 (2009). The circuit court’s ruling will be reversed only if it

was clearly against the preponderance of the evidence. Willoughby v. State, 76 Ark. App. 329,

65 S.W.3d 453 (2002). An officer making a lawful arrest is permitted to conduct a search

without a warrant of a person or his property to protect the officer, to prevent the accused’s

escape, or to obtain evidence of the commission of an offense for which the accused is

arrested or to seize contraband or fruits of the crime. Ark. R. Crim. P. 12.1. Moreover, a

search incident to an arrest may be made whether or not there is probable cause to believe

the person arrested may have a weapon or is about to destroy evidence. Bonebrake v. State, 51

Ark. App. 81, 83, 911 S.W.2d 261, 262 (1995). A search incident to arrest must be

substantially contemporaneous with the arrest and not remote in time and place. Id. Thus,

a search may be made only of the area within the immediate control of the person arrested,

which has been held to be the area from within which he might gain possession of a weapon

or destructible evidence. Id.

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We conclude the evidence established by a preponderance of the evidence that Officer

Rogers performed a permissible search incident to arrest. A search is valid as incident to a

lawful arrest even if conducted before the actual arrest as long as the arrest and search are

substantially contemporaneous and probable cause to arrest existed prior to the search.

Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). Here, Officer Rogers had

probable cause to arrest Mr. Dougan due to the outstanding warrant in Texas, and he also

had the authority to conduct a search incident to that arrest. Once the jacket came into

Officer Rogers’s possession, he was well within his right to conduct a search incident to

arrest, as Rule 12.1 permits an officer to conduct a search without a warrant of an accused’s

property in order to protect the officer’s safety. Further, Rule 12.1 allows the arresting officer

to seize the contraband, the fruits of crime, and any other things criminally possessed that

are discovered during a proper search incident to arrest. Van Daley v. State, 20 Ark. App.

127, 725 S.W.2d 574 (1987). Once Officer Rogers discovered the contraband contained

inside the jacket, Rule 12.1(d) allowed the items to be seized and used as evidence without

regard to whether they were connected with the offense for which Mr. Dougan was initially

arrested. Id. Therefore, we hold the circuit court did not clearly err in denying Mr. Dougan’s

motion to suppress.

Affirmed.

ABRAMSON and GRUBER, JJ., agree.

Knutson Law Firm, by: Gregg A. Knutson, for appellant.

Leslie Rutledge, Att’y Gen., by: Clayton P. Orr, Ass’t Att’y Gen., for appellee.

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