dissenting. The majority employs the correct legal standard but reaches the wrong result in this criminal appeal involving whether the State’s circumstantial proof was sufficient to support the jury verdict convicting appellant of possession of methamphetamine with intent to deliver and possession of drug paraphernalia. Because I believe that the result announced today directly violates the standard prescribed by our supreme court in Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990), I must respectfully dissent.
I agree with the majority that the Hodge standard governs our analysis. In that case, our supreme court reversed and dismissed the conviction of a man who was convicted of possession with intent to deliver methamphetamine and sentenced to life imprisonment plus a fine of $50,000. The conviction in Hodge was overturned despite evidence far more incriminating than anything or everything in this record. Undercover police established surveillance of Hodge with the cooperation of a person previously arrested for selling narcotics and who arranged to meet Hodge on a given date and time to consummate a drug sale. Thereafter, the police followed Hodge to the parking lot of an Oklahoma truck stop where he met his suppliers, who the police recognized as a couple previously arrested for running a drug lab. Hodge left that meeting with one of the suppliers riding in his car and returned to Arkansas, where awaiting police signaled for him to stop his car. Instead, Hodge commenced a high-speed sixteen-block flight through Fort Smith, which resulted in his capture and arrest. A search of his vehicle and his person revealed no contraband (although his passenger had a small amount of marijuana in her purse). After Hodge was incarcerated, a police officer retraced the chase route. Halfway along the route and scattered up to twenty-five feet beyond an intersection where Hodge had turned, the police officer found an empty “Pringles” potato chip can and two “Ziploc” bags that contained a total of what was later identified as almost two ounces of methamphetamine.
Despite this proof, the supreme court concluded that the evidence was insufficient and “that the jury could not have reached its guilty verdict without resorting to suspicion and conjecture.” Id. at 377, 797 S.W.2d at 435. The Hodge majority opinion, written by Chief Justice Jack Holt, Jr., is unmistakably clear about the standard for testing the sufficiency of evidence in criminal prosecutions based on constructive possession such as the one before us, as follows:
Where contraband is discovered in jointly occupied premises, and there is no direct evidence that it belongs to a particular occupant, some additional factor must be present linking the accused to the contraband. The state must prove that the accused exercised care, control and management over the contraband. Certainly, where narcotics are found in an area entirely outside the control of the defendant and exposed to the public at large, the state must provide more definite factors linking the defendant to the contraband than were provided here.
Constructive possession may be established by circumstantial evidence, but when such evidence alone is rehed on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. The state’s evidence of constructive possession in this case is, in fact, entirely circumstantial. Although it impels the strong suspicion that Hodge was in possession of the contraband, the question is whether such a suspicion is sufficient enough to support a conviction.
We hold that the circumstantial evidence was insufficient to convict Hodge of possession with intent to deliver methamphetamine. “No one should be deprived of his liberty or property on mere suspicion or conjecture. Where inferences are rehed upon, they should point to guilt so clearly that any other conclusion would be insufficient. This is so regardless of how suspicious the circumstances are.”
303 Ark. at 378-379, 797 S.W.2d at 434-435 (emphasis added) (citations omitted).
I see no reason why the proof in the present case justifies a result different from that reached in Hodge. Here, the proof is entirely circumstantial; there is no direct proof that Garner ever possessed, or was even intended to possess, the contraband that the police found in an open area near the residence of Shirley Spencer. Spencer never identified Garner as the person she observed walking into the bushes near her house; in fact, she could not identify the person she saw outside her house. Nothing was found in the area that Spencer directed the police to search off the roadway where she had observed the unidentified man walking, even though the police found a Bushnell extra-wide binoculars case that contained almost eighty grams of methamphetamine approximately fifty feet north of the place Spencer had observed the suspicious person. The binoculars case also contained drug paraphernalia and a letter from James Garner to Chris Garner, appellant’s brothers. That letter did not mention the contraband, let alone link appellant to it.
The conviction in this case could have occurred only after the jury, having no direct evidence that appellant ever possessed the contraband, surmised that the unclaimed contraband found near Spencer’s house in an open area must have belonged to appellant because he was in the area, owned a set of binoculars similar to the case in which the contraband was found, fled from the police when they pursued him, had the same initials (J.G.) as those found on a flashlight found near the open area, and was named in a letter written by one of his brothers to another brother. That proof might create suspicion of guilt, but it certainly does not exclude every other reasonable hypothesis inconsistent with guilt. Appellant had no contraband on his person or in his truck when the police stopped him. He told the police he had been cutting weeds on his own property which was located in the vicinity.1 No fingerprints or other indicia of ownership appeared on the binoculars case to link appellant to the case, let alone its contents. The initials found on the flashlight (“J.G.”) also fit appellant’s brother (James Garner), who wrote the letter found in the binocular case. If “more definite factors linking the defendant to the contraband” were needed in Hodge to warrant affirmance, and if the supreme court reversed the conviction and sentence in that case because “more definite factors” were absent, we should not reach a different result on the less incriminating record before us.
The effect of today’s decision is troubling. The State has the burden of proving every element of a criminal charge beyond a reasonable doubt. Conviction on the charge of possession of a controlled substance with intent to deliver requires, in the first instance, proof beyond a reasonable doubt that the accused possessed a controlled substance. Although circumstantial evidence of constructive possession can be established according to the Hodge standard, the decision today weakens that standard so that the State can obtain a conviction based on sheer suspicion. As the supreme court said in Ravellette v. State, 264 Ark. 344, 346, 571 S.W.2d 433, 434 (1978), “No one should be deprived of his liberty or property on mere suspicion or conjecture. . . . This is so regardless of how suspicious the circumstances are.”
I respectfully dissent, and am authorized to state that Judges Hart, Bird, and Baker join this opinion.