concurring in part; dissenting in part. While I agree that the appellant’s conviction for possession of cocaine must be dismissed, I would likewise reverse and dismiss his conviction for possession of marijuana. The Arkansas Supreme Court recently restated the standard of review in determining whether evidence sufficiently demonstrates constructive possession:
[T]he State need not prove that the accused physically possessed the contraband to sustain a possession conviction. Indeed, if the location of the contraband was under the dominion and control of the accused, it is deemed constructively possessed. Although constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy, alone, is insufficient to establish possession or joint possession. ... [T]he State must prove some additional factor linking the appellant to the contraband. Specifically, the State must prove that the appellant exercised care, control, and management over the contraband, and that she knew the matter possessed was contraband.
Fultz v. State, 333 Ark. 586, 596, 972 S.W.2d 222, 226 (1998)(citations omitted).
In the case at bar, the majority does not set forth any factor linking the appellant to the marijuana. Rather, the majority concludes, “[W]e believe the fact that the police officer smelled marijuana upon approaching the vehicle tends to establish that appellant had knowledge of the presence of marijuana.” Certainly, this does not establish that the appellant exercised care, control, or management of the contraband. And most certainly, “[m]ere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act,” is not sufficient to establish criminal liability. See Fight v. State, 314 Ark. 438, 444, 863 S.W./2d 800, 803-04 (1993). This case strongly resembles that of Kastl v. State, 303 Ark. 358, 796 S.W.2d 848 (1990), in which the Arkansas Supreme Court found that evidence of beer cans beside the vehicle, beer found in the immediate proximity of the appellant in the vehicle, and the smell of beer on the appellant’s person, were not sufficient evidence that the appellant, who was one of five people in the vehicle, constructively possessed the beer.
Relying on our words here, one can easily imagine a “parade of horribles” in which a person who is merely present will stand convicted for merely knowing about the presence of a controlled substance. Insofar as we abide under a just system of laws, this decision cannot stand.