                                Cite as 2016 Ark. App. 229

                ARKANSAS COURT OF APPEALS
                                      DIVISION II
                                     No. CR-15-940


DERRICK GERADE LAMBERT                           Opinion Delivered   April 27, 2016
                   APPELLANT
                                                 APPEAL FROM THE DREW
                                                 COUNTY CIRCUIT COURT
V.                                               [NO. 22CR-15-2]

                                                 HONORABLE SAM POPE, JUDGE
STATE OF ARKANSAS
                                APPELLEE         AFFIRMED



                          PHILLIP T. WHITEAKER, Judge

       Appellant Derrick Lambert was convicted by a Drew County jury of one count of

being a felon in possession of a firearm. He was sentenced to four years in the Arkansas

Department of Correction and fined $1000. Following trial, Lambert filed a motion for new

trial, which was denied. On appeal, he raises two arguments for reversal: (1) his conviction

was not supported by substantial evidence, and (2) the circuit court erred in denying his

motion for new trial. We find no error and affirm.

                                I. Sufficiency of the Evidence

       Arkansas Code Annotated section 5-73-103(a)(1) (Repl. 2005) prohibits any person

who has been convicted of a felony from possessing or owning any firearm. Lambert

conceded at trial that he is a convicted felon. However, he argued in his directed-verdict
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motion that the State failed to prove that he possessed the gun in question. The court denied

his motion.

       An appeal from the denial of a motion for directed verdict is treated as a challenge to

the sufficiency of the evidence. Block v. State, 2015 Ark. App. 83, at 4, 455 S.W.3d 336, 339.

On appeal, we will affirm the denial of a motion for directed verdict if substantial evidence,

either direct or circumstantial, supports the conviction. Harmon v. State, 340 Ark. 18, 22, 8

S.W.3d 472, 474 (2000). Substantial evidence is evidence which would compel a conclusion

one way or the other with reasonable certainty, without relying upon mere speculation or

conjecture. Id., 8 S.W.3d at 474. We view the evidence in the light most favorable to the

State and consider only evidence supporting the verdict. Butler v. State, 2009 Ark. App. 695,

at 5, 371 S.W.3d 699, 702.

       Lambert argues that the evidence does not support the verdict because the State’s case

against him relied on the theory of constructive possession and was entirely circumstantial.

As a result, we consider the law on both constructive possession and circumstantial evidence.

       The State is not required to establish actual physical possession but may prove

possession constructively. Patton v. State, 2010 Ark. App. 453; Cherry v. State, 80 Ark. App.

222, 95 S.W.3d 5 (2003). Constructive possession requires the State to prove beyond a

reasonable doubt that (1) the defendant exercised care, control, and management over the

contraband, and (2) the accused knew the matter possessed was contraband. Walker v. State,




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77 Ark. App. 122, 72 S.W.3d 517 (2002).1 Constructive possession may be inferred where

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

subject to his control. Alexander v. State, 2011 Ark. App. 610.

       Constructive possession may also be inferred when contraband is in the joint control

of the accused and another. Webb v. State, 2015 Ark. App. 257, 460 S.W.3d 820. Joint

occupancy alone, however, is not sufficient to establish possession. Gamble v. State, 82 Ark.

App. 216, 105 S.W.3d 801 (2003). Other factors must sufficiently link an accused to

contraband found in a vehicle jointly occupied by more than one person. Among the factors

sufficient to link an accused to contraband are whether the contraband was found on the

same side of the car seat as the defendant or in immediate proximity to him and whether the

accused acted suspiciously before or during the arrest. Id. (citing Plotts v. State, 297 Ark. 66,

759 S.W.2d 793 (1988)).2

       Lastly, constructive possession may be established by circumstantial evidence. Patton,

supra. Circumstantial evidence may provide the basis for a conviction if it is consistent with

the defendant’s guilt and inconsistent with any other reasonable explanation of the crime.




       1
        Lambert acknowledged at trial that, because he is a convicted felon, a firearm would
be contraband. Thus, the only issue on appeal is whether he exercised care, control, and
management over the contraband.
       2
         Other factors, which are not pertinent in this case, include whether the contraband
was found in plain view, whether the contraband was found on the defendant’s person or
with his personal effects, and whether the accused owned the vehicle in question or exercised
dominion and control over it. Gamble, supra.


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Harris v. State, 2014 Ark. App. 448, at 3, 439 S.W.3d 715, 717. The question of whether the

circumstantial evidence would support any other theory is for the jury to decide. Block, supra.

       With these standards in mind, we examine the evidence presented at trial. Special

Agent John Carter of the Tenth Judicial Drug Task Force conducted a traffic stop at about

2:00 a.m. on an older-model Tahoe for having no rear license plate. The Tahoe was driven

by Misty Johnson; Alex Harrington was a front-seat passenger, and Lambert was sitting in the

backseat on the passenger side. As Carter spoke with Johnson and got her information,

Lambert opened the rear passenger door and tried to exit. Carter told him to stay in the

vehicle. About that time, Patrolman Ben Michel arrived on the scene. Michel maintained

observation of the passengers, Harrington and Lambert. Lambert was observed moving

around in the Tahoe. Michel did not observe Harrington attempting to reach from his

position in the front seat to the backseat area where Lambert was seated.

       Carter requested consent to search the Tahoe from Johnson. The uncontroverted

testimony from Johnson was that both Lambert and Harrington told her not to allow the

search. Carter obtained consent from Johnson to search the vehicle, and a subsequent search

revealed a gun in the armrest compartment inside the seat back next to where Lambert had

been seated within the Tahoe. The armrest compartment was immediately accessible by

Lambert. Johnson denied that the gun belonged to her or that she had ever seen the gun

before. Lambert denied that the gun belonged to him. He took the position that the gun

had been placed in the armrest by Harrington, the front-seat passenger. This position,

however, was refuted by Officer Michel’s observations. It was also disputed by Johnson,


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who explained that a person in the front seat could not reach the backseat without getting

out of his or her seat.

       We hold that the circuit court did not err in denying Lambert’s motion for directed

verdict and allowing the jury to determine whether the circumstantial evidence was

consistent with Lambert’s guilt or whether it would support any other theory. While there

was joint occupancy of the vehicle, the State demonstrated that other “linking” factors were

present. The gun was found in the backseat, where Lambert had been the sole passenger.

The compartment in which the gun was found was immediately and solely accessible by

Lambert. Although Lambert testified that Harrington had turned around and hidden the gun

in the backseat, it was up to the jury to weigh this testimony against the observations of the

arresting officers and Johnson. Additionally, Lambert acted suspiciously, telling Johnson not

to allow the officers to search the vehicle and attempting to get out of the Tahoe before the

police could approach it. See Gamble, 82 Ark. App. at 220–21, 105 S.W.3d at 804 (proximity

of defendant to contraband, coupled with his suspicious behavior before and during the

traffic stop, constituted substantial evidence of constructive possession). Accordingly, we

conclude that substantial evidence supports Lambert’s conviction.

                                   II. Motion for New Trial

       In his second point on appeal, Lambert challenges the circuit court’s decision to deny

his motion for a new trial. After his conviction, Lambert filed a motion for new trial in

which he alleged that the State had suppressed exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963). Specifically, Lambert contended that the State failed to disclose


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an exculpatory statement by Harrington, the front-seat passenger in the vehicle. After a

hearing, the circuit court denied the motion.

       The decision to grant or deny a motion for new trial lies within the sound discretion

of the circuit court, whose action will be reversed only upon a clear showing of abuse of that

discretion or manifest prejudice to the defendant. Harrison v. State, 371 Ark. 652, 269 S.W.3d

321 (2007); Wright v. State, 2012 Ark. App. 389. The burden is on the appellant to establish

that a violation of pretrial discovery was sufficient to undermine confidence in the outcome

of the trial. Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998). To merit relief, the

defendant must demonstrate that there is a reasonable probability that the judgment of

conviction would not have been rendered, or would have been prevented, had the

information been disclosed at trial. Sanders v. State, 374 Ark. 70, 72, 285 S.W.3d 630, 633

(2008); Stewart v. State, 2011 Ark. App. 658, 386 S.W.3d 583.

       At the hearing on Lambert’s new-trial motion, Harrington testified that he received

a subpoena to appear as a witness for the State at the trial that was scheduled to begin on

Wednesday. On Tuesday, however, Harrington met with the prosecuting attorney, who

asked whether Harrington’s story would be the same as it had been at a prior revocation

hearing. Harrington told the prosecutor that he would testify that neither he nor Lambert

had a gun. At that point, according to Harrington, the prosecutor told him he was released

from his subpoena and did not have to appear for court. Although Harrington had also been

subpoenaed by the defense, the subpoena had not yet been returned by the time of trial, so

the prosecutor did not know of the defense subpoena. When the prosecutor’s office later


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called Harrington’s house to release him from the State’s subpoena, Harrington mistakenly

assumed that he had been released from the defense subpoena as well. Harrington stated that,

had he been called as a witness at trial, he would have testified that Lambert did not have a

gun.

       On cross-examination, the State questioned Harrington about his testimony from his

previous revocation hearing. Harrington agreed that, at the prior hearing, he had testified that

he did not know there was a gun in the back console. He also acknowledged numerous

other inconsistencies between his testimony at the revocation hearing and Lambert’s

testimony at trial, including when and where the two of them had gotten into Johnson’s car.

       Following the hearing, the circuit court denied Lambert’s motion, finding that

Harrington’s testimony would not have made a difference in the outcome of the trial. On

appeal, Lambert argues that, as a result of the State’s suppression of evidence favorable to him,

he was “denied a fair opportunity to present exculpatory eye witness testimony that he did

not have a gun, denying him a fair trial.” Lambert also argues that the circuit court erred in

ruling that Harrington’s testimony would not have made any difference, because “the

credibility of witnesses is an issue for the fact finder.”

       In Wright, supra, the appellant argued that he was entitled to a new trial because the

State had not informed him about a jailhouse informant’s statement regarding the crime. This

court held that the appellant failed to show that he was so prejudiced by the alleged discovery

violation that there was a reasonable probability the outcome of the trial would have been

different. Wright, 2012 Ark. App. 389, at 6. Similarly, here, Lambert has failed to demonstrate


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that the outcome of his trial would have been different. Lambert himself testified at trial that

he did not have a gun. Johnson also said that she did not see a gun on Lambert, and

Harrington’s testimony to the same effect would only have been cumulative. Moreover,

although Lambert testified that Harrington had the gun and tried to hide it, Harrington

testified that he did not have a gun either. Thus, Harrington’s testimony would have

conflicted with Lambert’s testimony.

       Lambert does not argue in his brief on appeal that the outcome of the trial would have

been different if Harrington had testified at trial. Because he has failed to assert, much less

demonstrate, prejudice, we affirm the circuit court’s denial of Lambert’s motion for new trial.

       Affirmed.

       ABRAMSON and HOOFMAN , JJ., agree.

       John F. Gibson, Jr., for appellant.

       Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.




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