dissenting. I agree with the prevailing judges that Jerrard Palmer is certainly no Boy Scout. However, I do not agree that the State met its burden of proving, by a preponderance of the evidence, that Palmer was in constructive possession of the cocaine found in the automobile in which he was a passenger with two others. Because this was the sole basis stated by the trial court for revoking Palmer’s suspended sentence, I would reverse.
Although the State also alleged in its petition to revoke that Palmer failed to pay costs and fines, the prosecutor merely introduced, without comment, a “ledger” reflecting that Palmer had failed to pay the fines and costs. The record reflects that the State uttered not a single word about this ledger or about Palmer’s failure to pay costs, either as testimony or in argument, and that the trial court never mentioned the failure to pay in pronouncing the following ruling:
The Court finds by a preponderance of the evidence that the defendant possessed Cocaine With Intent to Deliver on July the eleventh, 1996. He was in the vehicle and the cocaine was found in the vehicle. . . . And there are grounds to revoke the suspended portion of [Palmer’s] sentences.
Thus, even the record is devoid of any basis on which this court can affirm for failure to pay costs. The State, to its credit, does not even suggest such a disposition in its brief, undoubtedly because the record is clear — the trial court made no finding of nonpayment of fines and costs. Indeed, not one word about failure to pay was spoken by anyone at Palmer’s hearing, and we do not conduct a de novo review of revocation proceedings.
As to the finding that Palmer was in possession of cocaine, I cannot agree that this is supported by any evidence, much less a preponderance of the evidence. For, although the State’s burden in a revocation proceeding is less than for a criminal conviction, the State must still put forth some evidence of the offense, and we must still look to our established precedents to determine what that evidence should consist of. In a joint-occupancy situation, additional linking factors must be present before a defendant’s probation may be revoked. Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996) (appellant possessed a key to an automobile in which police found cocaine, and was the only person present when the search warrant was executed).
The factors outlined in the prevailing opinion — three men “ducked down” in a vehicle parked at an apartment complex in the early morning hours — may have justified an investigatory stop. The “inconsistent” statements allegedly given by the three young men — all said they were just visiting the complex, two said they had just arrived, and one stated they were about to leave — may have justified further inquiry. Discovery of an empty bot-tie of gin in the back seat of the car in which Palmer was sitting with a minor and another adult may have justified Palmer’s arrest for contributing to the delinquency of a minor, even though it is just as likely that the empty bottle could have been intended for use with the bottle rockets that were also discovered in the car. However, none of these factors serve to link Palmer to a small plastic pill bottle, found next to the driver’s side door of the car after the driver, who was the last of the three to be taken from the car, had exited. No evidence was presented that Palmer was anything other than a passenger in the car. There was no testimony that he made any suspicious moves before leaving the car, that he owned the car, had keys to the car, or proof of any other factor suggesting that he “exercised care, control, and management over the contraband,” as required in a joint-occupancy case. See Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988).
There is certainly no lack of guidance for this court or for the State to determine what constitutes the requisite linking factors. In Plotts, supra, the supreme court first set out the linking factors to be considered in cases involving vehicles occupied by more than one person: (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 was sitting or in near proximity to it; (4) whether the accused is the driver of the automobile, or exercised dominion and control over it; and (5) whether the accused acted suspiciously before or during arrest. In affirming Plotts’s conviction for possession of marijuana with intent to deliver, the court found sufficient linking factors where Plotts owned the car, a fully stuffed clothes bag with a plastic bag containing green vegetable material protruding out of it was in plain view in the back seat, and Plotts made a suspicious statement concerning drugs when he was asked to consent to a search of the car.
A review of the numerous post-Plotts cases involving the joint occupancy of a vehicle in which contraband has been found yields no case in which a conviction or revocation has been upheld with linking factors so insubstantial as in the case before us. See Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995) (appellant was the only person to drive the car on the day of the arrest, testified that he had thoroughly cleaned the car before using it, and contraband was found in plain view between the driver and passenger seats); Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994) (numerous additional factors cited linking three appellants to 11.7 pounds of cocaine found hidden in a motor home leased by two of them and driven by the third); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993) (numerous containers of cocaine found in the vehicle appellant was driving, his fingerprints were found on an envelope containing baggies with cocaine residue, drug paraphernalia was found in a console next to appellant); Kastl v. State, 303 Ark. 358, 796 S.W.2d 848 (1990) (conviction for minor in possession of alcohol reversed where appellant was a passenger in a car with four others, a six-pack of beer was found lying in hatch area of vehicle behind her and accessible to her, appellant had smell of intoxicating alcohol about her person, and beer cans were found lying beside the vehicle); Bond v. State, 45 Ark. App. 177, 873 S.W.2d 569 (1994) (both appellants linked to contraband where pipe was found in plain view in immediate proximity to both, marijuana was found in back seat behind driver and accessible to both driver and passenger, a noticeable odor of marijuana was in the car, and both driver and passenger appeared glassy-eyed); Haygood v. State, 34 Ark. App. 161, 807 S.W.2d 470 (1991) (both driver and passenger linked to cocaine found in vehicle where cocaine was in gym bag in back seat right beside passenger and also in the driver’s immediate access, and driver of vehicle also had cocaine in a medallion around his neck); Johnson v. State, 35 Ark. App. 143, 814 S.W.2d 915 (1991) (appellant was driver of car from which a bag of cocaine was dropped and exhibited suspicious behavior by speeding away after being stopped); Nowden v. State, 31 Ark. App. 266, 792 S.W.2d 621 (1990) (appellant was driver of a vehicle in which an open sack of marijuana was found in plain view on the passenger side of the floorboard with no console or barrier between the seats, and appellant appeared to be nervous); Booth v. State, 10 Ark. App. 216, 662 S.W.2d 213 (1984) (conviction reversed where appellant was a passenger in a car in which marijuana was discovered locked in the trunk and there was no evidence that he had keys to the car, and no proof of his relationship with the driver or length of time they had been together). In fact, the linking factors in the instant case are similar, but far less compelling than in Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990), in which the supreme court reversed a criminal conviction where the contraband was not in plain view, on appellant’s person, or in his immediate proximity, and appellant was not the owner of the vehicle or in control of it, even though appellant was extremely nervous and he and the joint occupant told conflicting stories.
Although the prevailing opinion seeks to distinguish these authorities because they involve appeals from criminal convictions rather than revocation proceedings, Billings, supra, which did involve a revocation proceeding, cannot be so easily ignored. In Billings, the affirmance was clearly based upon the appellant’s possession of a key to the automobile parked outside his motel room, and in which cocaine was found — strong evidence that the appellant “exercised dominion and control” over the vehicle.
Here, the preponderance of the evidence — the greater weight of the evidence — the size of the bottle, location where it was found, the “hump” described by officers as separating the front floor board, the failure to connect Palmer to the vehicle in any way, and the fact that the driver exited last, suggests that the driver, not Palmer, possessed the easily concealed pill bottle. However, as the trial court said in finding that Palmer possessed cocaine with intent to deliver, “[h]e was in the vehicle and the cocaine was found in the vehicle.” This was sufficient for the trial court and, sad to say, is also sufficient for the majority to send this man to prison for twelve years. Perhaps the State would have prevailed had it presented evidence on Palmer’s failure to pay his costs or had it pursued the charge of contributing to the delinquency of minors. However, on appellate review, we must decide the case based on the record before us, not what the State might have or should have done. Here, the State simply failed to meet its burden of linking Palmer to the contraband, and failed to go forward with its case on the failure to pay costs. Even though the State has a lesser burden of proof in parole revocation hearings, I am aware of no authority that excuses the State from the most fundamental precept in our adversary system of justice: that you must make your case in order to prevail. I would reverse.
Robbins, C.J., and Neal, J., join.