                                  Cite as 2017 Ark. App. 337


                   ARKANSAS COURT OF APPEALS
                                        DIVISION II
                                        No. CR-16-931


                                                   Opinion Delivered   May 24, 2017
LANCE W. HARJO
                               APPELLANT           APPEAL FROM THE POLK COUNTY
                                                   CIRCUIT COURT
                                                   [NO. 57CR-16-3]
V.
                                                   HONORABLE JERRY RYAN,
                                                   JUDGE
STATE OF ARKANSAS
                                 APPELLEE          AFFIRMED


                               LARRY D. VAUGHT, Judge

       Appellant Lance Harjo appeals his conviction by a Polk County jury of trafficking in

methamphetamine, possession of drug paraphernalia, simultaneous possession of drugs and

firearms, maintaining a drug premises, illegal use of a communication device, possession of a

defaced firearm, and possession of marijuana with intent to deliver. Specifically, he challenges

the finding that he constructively possessed the drugs and firearms found during the search

and that security cameras placed around the property constituted “communications devices”

under Arkansas Code Annotated section 5-64-404. We affirm on both points.

       On January 5, 2016, members of the 18th West Judicial District Task Force and the

Polk County Sheriff’s Department executed a search warrant at Harjo’s home. At trial, the

evidence established that the officers were familiar with Harjo and knew that he occupied the

residence. When officers arrived to search the home, Harjo was inside an adjacent shop

building with two other individuals. Xabrina Kahn Cunningham, who officers also knew to be
                                 Cite as 2017 Ark. App. 337

living with Harjo, was asleep in the master bedroom. As Cunningham was being led away by

the officers, Harjo stated that anything they found in their search was his.

       The search of Harjo’s home focused largely on the master bedroom that, based on the

clothing found there, appeared to be shared by Harjo and Cunningham. The bedroom was

described in the trial testimony as having a shallow closet with doors that had been removed,

in which a desk had been placed. In plain sight on the desk or beside it were various bills

addressed to Harjo (indicating that he resided in the home), firearms (assault rifles, a shotgun,

and a handgun), ammunition, a digital scale, night vision goggles, small quantities of packaged

marijuana, various pills, and “a lot of methamphetamine” packaged in a Ziploc bag and in red

Solo cups. Inside the desk, they found a plastic bag containing a substance that appeared to

be marijuana, another scale, devices used to smoke methamphetamine or marijuana, and a

Ruger P-95 semiautomatic pistol with identifying serial numbers that had been drilled out.

Inside the adjacent shop building, officers found a safe, which they seized. After obtaining a

second search warrant to open the safe, they found cash, a firearm, and marijuana and

methamphetamine in small plastic bags.

       Liza Wilcox, a forensic chemist with the Arkansas State Crime Laboratory, testified

that she tested various items seized during the search of Harjo’s residence. Wilcox testified

that the materials tested were positively identified as marijuana and methamphetamine.

Moreover, a waxy substance obtained in the search contained THC, and the pills contained

hydrocodone and oxycodone. Once she had established the presence of methamphetamine in

an aggregate quantity of over approximately 300 grams, she did not test the remaining drug




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contraband because the statutory presumption for trafficking is only 200 grams. Ark. Code

Ann. § 5-64-440(b)(1) (Repl. 2016).

       Harjo was convicted and filed a timely notice of appeal. He raises two challenges to his

convictions: that there was insufficient evidence to establish constructive possession and that

the security cameras around his home were not communications devices pursuant to section

5-64-404. Both of Harjo’s points on appeal are, essentially, challenges to the sufficiency of the

evidence. 1

       When reviewing the sufficiency of the evidence, this court views the evidence in the

light most favorable to the State, considering only evidence that supports the verdict, and

affirms if substantial evidence, direct or circumstantial, supports the verdict. Alexander v. State,

78 Ark. App. 56, 62, 77 S.W.3d 544, 547 (2002). Substantial evidence is evidence that is of

sufficient force and character that it will, with reasonable certainty, compel a conclusion

without resorting to speculation or conjecture. Id. For circumstantial evidence to be sufficient,

it must exclude every other reasonable hypothesis consistent with innocence, but whether it

does so is left to the jury alone to determine. Williams v. State, 338 Ark. 97, 106–107, 991 S.W.2d

565, 569 (1999).

       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. Franklin v.

State, 60 Ark. App. 198, 201, 962 S.W.2d 370, 372 (1998). Constructive possession can also be

inferred when the contraband is in the joint control of the accused and another. Id. However,



       1Harjo’ssecond point on appeal hinges not on a question of statutory interpretation
but on whether there was sufficient evidence to meet the statutory definition.
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joint occupancy alone is not sufficient to establish possession or joint possession; there must

be some additional factor linking the accused to the contraband. Id. In such cases, the State

must prove that the accused exercised care, control, and management over the contraband

and that the accused knew the matter possessed was contraband. Id. Control over 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, and the ownership of the property where the

contraband is found. Nichols v. State, 306 Ark. 417, 420, 815 S.W.2d 382, 384 (1991).

Furthermore, jurors do not and need not view each fact in isolation, but rather may consider

the evidence as a whole. Bridges v. State, 46 Ark. App. 198, 202, 878 S.W.2d 781, 784 (1994).

Jurors are also entitled to draw any reasonable inference from circumstantial evidence to the

same extent that they can from direct evidence. Shipley v. State, 25 Ark. App. 262, 267, 757

S.W.2d 178, 181 (1988).

       We are satisfied that substantial evidence was presented at trial to support the jury’s

finding that Harjo constructively possessed the contraband found in the home. First, officers

testified that they were familiar with Harjo and had prior knowledge that he lived at that

address. Second, bills in his name were found in the bedroom along with men’s clothing. Harjo

was physically present at the residence when officers arrived. Finally, and most notably, Harjo

told officers that whatever they found in their search of the home belonged to him. Therefore,

we hold that substantial evidence supports the jury’s finding that Harjo exercised care, control,

and management over the contraband and affirm on this point.

       Harjo’s second point on appeal challenges the sufficiency of the evidence for his

conviction for using a communication device to facilitate drug-related activity pursuant to


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Arkansas Code Annotated section 5-64-404. The only communication devices alleged to have

been used were several security cameras positioned around the home that transmitted images

to a multiplex video monitor located on the desk in the master bedroom (the same desk where

the contraband was found). Harjo claims that the video cameras do not meet the statutory

definition of a “communication device.” We disagree. Arkansas Code Annotated section 5-

64-404, states, in part:

               (a)(1) As used in this section, “communication device” means any public or private
       instrumentality used or useful in the transmission of a writing, sign, signal, picture, or sound of
       any kind.

              (2) “Communication device” includes mail, telephone, wire, radio, and any
       other means of communication.

                (b) A person commits the offense of unlawful use of a communication device
       if he or she knowingly uses any communication device in committing or in causing or
       facilitating the commission of any act constituting a:

               (1) Felony under this chapter[.]

Id. (emphasis added).

       Here, there can be no dispute that the cameras positioned around the home were used

or useful in the transmission of a picture back to the monitor. The fact that they are not

specifically listed in section (a)(2) is not dispositive because that section includes the catchall

phrase “or any other means of communication.” Under the plain language of the statute,

security cameras that transmit images to a monitor qualify as communication devices.

       On appeal, Harjo also argues that the cameras were not used in committing or

facilitating the drug offenses for which he was convicted. Harjo argues that the cameras were

simply used for home security, not to commit or facilitate a crime. At trial, however, Harjo

never argued that the cameras were used for legal purposes rather than to facilitate his crimes.
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He only contested whether they met the statutory definition of a communication device, not

whether the State had presented sufficient evidence to support each element of the offense.

Our law is clear that a party is bound by the scope and nature of his directed-verdict motion

and cannot change the grounds on appeal. Plessy v. State, 2012 Ark. App. 74, at 3–4, 388 S.W.3d

509, 513.

       Affirmed.

       HARRISON and BROWN, JJ., agree.

       Shane Ethridge, for appellant.

       Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.




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