dissenting. I dissent from the majority’s reversal of appellant’s revocation. I do so because I believe that we cannot reverse this case without overruling Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999). The majority herein, including the author of Miller, pilots the judicial camel through the eye of a needle to distinguish this case from controlling precedent.
The distinction, as I understand it, is that in Miller the officer testified that he smelled a strong odor of marijuana, and in this case the officer testified that he smelled an odor of marijuana possibly masked by air freshener. The trial court in its ruling from the bench found the odor to be present, and we defer to the court’s determination of credibility. The trial court specifically found that the odor put the appellant on notice of the presence of marijuana, and that coupled with the proximity of appellant to the drugs, this supported a finding of constructive possession.
The appellant in Miller was a passenger in the left rear seat of a vehicle occupied by three other people. The only linking factors were the odor of marijuana and the proximity of appellant to the drugs that were found in the pocket (not in plain view) behind the passenger seat, i.e., within reach of both him and the right rear passenger. The decision in Miller states:
When viewed in the light most favorable to the State, we believe the evidence is sufficient to conclude that the jury had substantial evidence from which it could find that appellant constructively possessed marijuana. By way of analogy, we note that had the officer observed the marijuana in plain view inside the vehicle, the evidence would be sufficient to compel the conclusion that appellant constructively possessed the marijuana. Here, although the marijuana was not in plain view, we believe that the fact that the police officer smelled marijuana upon approaching the vehicle tends to establish that appellant had knowledge of the presence of the marijuana. It is the knowledge of the existence of the contraband that provides substantial evidence of constructive possession.
Miller v. State, 68 Ark. App. at 335, 6 S.W.3d at 814.
I see no compelling distinction between the facts at bar and the facts in Miller. I certainly see no reason to reverse a trial court’s determination by a preponderance of the evidence while disregarding a prior holding of this court based on proof beyond a reasonable doubt. If Miller is good law, we must affirm. But even if it is distinguishable because of the strength of the odor, and we hold that the smell of marijuana might not be sufficient proof of constructive possession for a criminal conviction, we may still affirm because the State is held to a lesser standard of proof in revocation proceedings, and therefore, constructive possession can be inferred on lesser proof.
The majority chooses to follow the precedent of Kastl v. State, 303 Ark. 358, 796 S.W.2d 848 (1990), which reversed a conviction for minor in possession of alcohol where beer was found in close proximity to the appellant and the odor of alcohol was on her person. We are bound to follow supreme court precedent, but the majority in Miller ignored Kastl even though it was cited and discussed in the dissent. I believe that if we are bound to follow supreme court precedent, we are also bound to conform our case law to it.
I dissent to point out the conflict between our holding in Miller and the supreme court’s holding in Kastl, and because of the lesser standard of proof required in a revocation proceeding.
Crabtree, J., joins.