dissenting. I respectfully dissent from the majority opinion in this case because I believe that there was sufficient evidence upon which a jury could find that the appellant was guilty of the crimes of possession of marijuana and cocaine on the basis that he constructively possessed both of those substances.
As the majority correctly notes, in order to convict the appellant on the charges, the State need not prove that he was in actual possession. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). Constructive possession, which is the control or right to control the contraband, is sufficient and can be implied where the contraband is found in a place immediately and exclusively accessible to appellant and subject to his control. Id. Where-there is joint occupancy of the premises where the contraband is found, some additional factor must be present linking the appellant to the contraband. Id. Other linking factors to be considered in cases involving automobiles occupied by more than one person are: (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 owner of the automobile, or exercises dominion and control over it; and (5) whether the accused acted suspiciously before or during the arrest. Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994).
The appellant argues that none of these additional factors link him to the contraband. He argues that the contraband was not in plain view, that it was not in his personal effects, that it was not found on the same side of the car seat or in his close proximity, that he did not exercise dominion and control over it, and that he did not act suspiciously before or during the arrest. The majority apparently agrees with appellant. I do not. The contraband was found in the pouch on the back of the driver’s seat. Although the contraband was not on the same side of the car as the appellant, it was certainly in close proximity to the other side of the back seat where appellant was seated.
The majority opinion, in its attempt to distinguish Bond v. State, 45 Ark. App. 177, 873 S.W.2d 569 (1994), from the case at bar, states that Bond seems to imply that constructive possession may be proven by merely showing that the defendant was an occupant of a vehicle where illegal contraband was found. To the contrary, I believe that Bond simply stands for the well-established principle that a person in joint occupancy of an automobile who is in close proximity to contraband located within that automobile can be found to be in possession of the contraband within the meaning of Ark. Code. Ann. § 5-64-401 (Repl. 1997) et seq. It is apparent that in Bond, the appellant could have reached behind the driver’s seat from the front passenger seat to gain access to the contraband. In the case at bar, appellant was seated in the right rear passenger seat and the contraband, located in the pouch on the back of the driver’s seat, was actually closer and more easily accessible to him than the contraband was in Bond.
I also disagree with the majority’s opinion based upon Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). In Kilpatrick, the supreme court upheld the conviction of a defendant for being a felon in possession of a firearm where the defendant was the driver of a car and the firearm was found underneath the passenger’s seat that was occupied by another person. Id. In that case, the supreme court held that the firearm was in an area accessible to the defendant and that he was, therefore, in constructive possession of the firearm. Id. If the driver of a motor vehicle is deemed to be in possession of a firearm located beneath a passenger seat that is occupied by another person, I see no reason why the passenger in the back seat of an automobile cannot be deemed to be in possession of illegal drugs that are also located in the back seat. The majority attempts to distinguish Kilpatrick by noting that “the cab of the truck was so 'small that anyone inside the vehicle had access to anything inside.” However, the record before us does not reveal that the back seat of the Ford Tempo automobile in which appellant was riding was any bigger that the cab of a truck. If the supreme court in Kilpatrick found that the driver of a truck constructively possessed a gun found under the passenger seat, it seems apparent that this court should find that appellant constructively possessed both the marijuana and cocaine found in the pouch behind the driver’s seat to which appellant had immediate access.
Finally, to me, it is contradictory to hold, as the majority does, that, because the police officer smelled the aroma of marijuana smoke coming from the car, the appellant is guilty of possession of marijuana, but not guilty of possession of cocaine that was located in exactly the same place in the car as the marijuana. I acknowledge the well-established rule that the smell of marijuana coming from an automobile is sufficient to arouse suspicion and provide probable cause for a warrantless search of the vehicle. McDaniel v. State, 337 Ark. 431, 990 S.W.2d 515 (1999). However, I do not read McDaniel to mean that the mere smell of marijuana smoke coming from a vehicle is sufficient to convict a joint occupant of the vehicle of possession of marijuana found in the vehicle. In order to be convicted, the State must prove that the joint occupant was in close proximity to the contraband or that such possession was established by virtue of the existence one of the other Unking factors referred to in Mings v. State, supra. In this case, if the appeUant was close. enough in proximity to the marijuana that the officer smeUed to be found guilty of its possession, I fail to see how the majority can say that there was not sufficient evidence to sustain the jury’s verdict that appeUant was guüty of possession of cocaine that was located in exactly the same place as the marijuana.
I am also troubled by the fact that the majority, in reversing this jury verdict, apparently gave considerable weight to the testimony of the driver of the vehicle, Michael Alexander, to the effect that appeUant did not know about the presence of the cocaine. From my reading of the abstract of Alexander’s testimony, there was so much contradiction in what he said that the jury might weU have considered his credibihty to be in doubt. Assessment of the credibUity of witnesses is within the sole province of the jury, Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999), and the jury obviously did not believe Alexander.
Because the appeUant was in close proximity to the marijuana and the cocaine, and because appeUant could have had dominion and control over both substances from his position in the right rear seat of the automobüe, I would affirm appeUant’s convictions on the marijuana and cocaine possession charges. See Bond v. State, supra, and Kilpatrick v. State, supra.
Stroud, J., joins in this dissent.