concurring in part; dissenting in part. I concur in the court’s affirmance of appellant’s conviction on the charge of possession of cocaine with intent to deliver but dissent from the court’s dismissal of the charge of simultaneous possession of drugs and firearms.
The question involved, of course, is whether the evidence is legally sufficient for the case to go to the trier of fact, in this instance the trial judge sitting without a jury. This is a matter of fine drawing, and the question of the sufficiency of the evidence is purely one of law. Another way of putting the question would be whether the State has made a prima facie case. Manifestly, the question is not whether we have a reasonable doubt of the defendant’s guilt or whether we think the trier of fact should have.
In deciding the sufficiency of the evidence, we are bound by certain principles. On appeal we view only the evidence that is most favorable to the verdict and do not weigh it against other conflicting proof favorable to the accused. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994); Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993). Circumstantial evidence alone may be sufficient to support a conviction. Ketelson v. State, 317 Ark. 324, 877 S.W.2d 910 (1994). Finally, the law recognizes that knowledge, like intent, is rarely capable of direct proof and may be established by circumstantial evidence. See Bird v. State, 337 Ark. 413, 992 S.W.2d 759 (1999).
At the outset I must question the majority’s employment of a “joint occupancy” analysis. The majority relies on Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994), for a list of “factors to be considered in joint occupancy cases. . . .” The court in Mings actually said, “Other factors to be considered in cases involving automobiles occupied by more than one person are. ...” In the case at bar the defendant was alone in the car when he was stopped. Even if it is appropriate to use a joint occupancy analysis, the fact that the defendant was alone is an appropriate consideration. See Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985) (case involving a residence — not a car). Furthermore, Mings clearly states that there must be “some other factor” linking the accused to the drugs. To me this means, at least ordinarily, there must be at least one additional factor. Here, even disregarding the fact that appellant was alone in the car, he was exercising dominion and control over it, a factor that the majority recognizes is appropriate for consideration. Furthermore, I think it can be fairly said that appellant was in “near proximity” to a loaded pistol. It is true that there was no testimony that appellant either could or could not reach the pistol from his position behind the wheel, but “there comes a point where this Court should not be ignorant as judges of what we know as men.” Watts v. Indiana, 338 U.S. 49, 52 (1949)(Justice Frankfurter).
Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995), is, as the majority says, clearly distinguishable on its facts. But in Kilpa-trick the court said, “The jury might also have inferred that one who possesses cocaine with intent to deliver might also possess a handgun.” This statement appears to have been made based in part on certain testimony adduced in Kilpatrick and on statements the court had previously made in Hendrickson v. State, supra. Here, the appellant’s own testimony tied himself to the cocaine located above the visor of the car he was driving — he testified he was a cocaine user and had in fact used it that very evening. For our purposes in deciding the legal sufficiency of the evidence to link the appellant to the pistol, his connection to the cocaine is certainly not determinative, but it is also not irrelevant.
To sustain a conviction for possessing contraband, the State need not prove actual physical possession of contraband; constructive possession, or the control or the right to control contraband is sufficient. Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998). Constructive possession occurs when contraband is found in a place that is immediately and exclusively accessible to the accused. Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000). Here the loaded pistol was immediately and exclusively accessible to the appellant.
I respectfully dissent.
CRABTREE, J., joins in this opinion.