Ark. Code Ann. § 5-64-420 (2026)

Research References

ALR.

What Constitutes “Aggravated Felony” for Which Alien Can Be Deported or Removed Under § 237(a)(2)(A)(iii) of Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Cocaine and Crack Cocaine Offenses Under 8 U.S.C. § 1101(a)(43)(B). 76 A.L.R. Fed. 2d 61.

What Constitutes “Aggravated Felony” for Which Aliens Can Be Deported or Removed Under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. § 1227(a)(2)(A)(iii)) — Illicit Methamphetamine Offenses Under 8 U.S.C. § 1101(a)(43)(B). 78 A.L.R. Fed. 2d 151.

Case Notes

Competency.

Where defendant, who had tried to commit suicide while in custody, appealed his convictions for violating this section and § 5-64-443(c), the circuit court did not err by denying his motion for a psychological evaluation. Defendant's mere statement that he was depressed was not enough to give the circuit court reason to believe that mental disease or defect would be an issue or to give the circuit court reason to doubt his fitness to proceed. King v. State, 2014 Ark. App. 81, 432 S.W.3d 127 (2014).

Double Jeopardy.

There was no double jeopardy violation where defendant was sentenced for both possession with intent to deliver a controlled substance and simultaneous possession of drugs and firearms under § 5-74-106; the legislature made it clear that it wished to assess an additional penalty for simultaneously possessing drugs and a firearm. Rowbottom v. State, 341 Ark. 33, 13 S.W.3d 904 (2000) (decided under former § 5-64-401).

Evidence.

Evidence of subsequent drug sales was properly admitted at defendant's trial for possession of cocaine with the intent to deliver and possession of methamphetamine with the intent to deliver; pursuant to Ark. R. Evid. 404(b) and 403, the evidence was relevant to whether defendant intended to deliver the drugs, and was not unfairly prejudicial. Turner v. State, 2009 Ark. App. 822 (2009) (decision under prior law).

Evidence Insufficient.

Evidence was not sufficient to convict defendant of possession with intent to deliver cocaine found in a vehicle registered to his brother. Although cocaine was found on both sides of the vehicle, it was sufficiently well hidden that defendant would not have been aware of its presence simply by riding in or driving the vehicle; there was no evidence he had been in or around the vehicle before a trip with his brother; and the only evidence of nervousness was that he did not make eye contact with the officer. Bustillos v. State, 2012 Ark. App. 654, 425 S.W.3d 44 (2012), cert. denied, — U.S. —, 134 S. Ct. 74, 187 L. Ed. 2d 57 (2013).

Evidence Sufficient.

Trial court did not err in denying defendant's motion for a directed verdict because there was substantial evidence to support defendant's conviction for possession of cocaine with intent to deliver; defendant had three cellular telephones attached to defendant's belt and digital scales were found in the glove compartment of defendant's vehicle. Dishman v. State, 2011 Ark. App. 437, 384 S.W.3d 590 (2011) (decided under former § 5-64-401).

Evidence was sufficient to convict defendant of possession with intent to deliver cocaine found in a vehicle registered to him and covered by an insurance policy that only lasted 30 days. The cocaine was found in a location that would take time and effort to access and was hidden in a manner that would not have been possible for a transient passenger; also, defendant appeared nervous during the stop. Bustillos v. State, 2012 Ark. App. 654, 425 S.W.3d 44 (2012), cert. denied, — U.S. —, 134 S. Ct. 74, 187 L. Ed. 2d 57 (2013).

Where a defendant appealed his conviction for possession of methamphetamine with the purpose to deliver, he unsuccessfully argued that there was insufficient evidence to support the conviction. Four out of the five statutory factors indicating a purpose to deliver methamphetamine were present in the case. King v. State, 2014 Ark. App. 81, 432 S.W.3d 127 (2014).

State sufficiently put forth evidence to support defendant's conviction for felony possession of methamphetamine with intent to deliver and to support his conviction for misdemeanor possession of marijuana. The evidence was sufficient that defendant was in possession of the drugs because defendant had exercised control over a motel room where the contraband was discovered. Jordan v. State, 2016 Ark. App. 255, 492 S.W.3d 543 (2016).

Evidence that defendant was the only person in the vehicle when arrested, both the methamphetamine and the drug paraphernalia were within his reach, the methamphetamine was packed in one large and one small container, and defendant had a large amount of cash on him was sufficient to support defendant's conviction for possession with intent to deliver. Medlock v. State, 2016 Ark. App. 282, 493 S.W.3d 789 (2016).

Informers.

Where the informant was not present when the search was made, nor was the defendant charged with a sale that the informant witnessed, the defendant did not need to know the name of the confidential informant to prepare his defense. Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986) (decision under prior law).

Lesser-Included Offenses.

While there was not substantial evidence to support defendant's conviction for possession of methamphetamine with intent to deliver, there was clearly substantial evidence to support a conviction for the lesser-included offense of possession of methamphetamine, given that defendant admitted to possession of the small quantity seized from the kitchen table; where the evidence was insufficient to sustain a conviction for a certain crime, but where there was sufficient evidence to sustain a conviction for a lesser-included offense, the appellate court could resentence the defendant or remand the case to the trial court for resentencing. Cooper v. State, 84 Ark. App. 342, 141 S.W.3d 7 (2004) (decision under prior law).

Possession.

Joint occupancy of premises alone will not be sufficient to establish possession or joint possession unless there are additional factors from which the jury can infer possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982) (decision under prior law).

There are two separate problems involved in establishing the defendant's “exclusive control” of the premises in order to impute possession; the first is whether the accused is a sole or joint occupant, and the second is, if the accused is the sole occupant, does he have actual exclusive control of the premises. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982) (decision under prior law).

Possession need not be actual, physical possession, but may be constructive, when one controls a substance or has the right to control it; constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control, or to the joint control of the accused and another, but neither actual nor exclusive possession of the contraband is necessary to sustain a charge of possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982) (decision under prior law).

Possession may be constructive when one controls a substance or has the right to control it; actual physical possession at the time of the arrest is not required. Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986) (decision under prior law).

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. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990) (decision under prior law).

Evidence held sufficient to support a conviction for possession of controlled substance with intent to deliver. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991) (decision under prior law).

The state need not prove that the accused had actual possession of a controlled substance; constructive possession is sufficient. Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the accused and subject to his control. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991) (decision under prior law).

Neither exclusive nor physical possession is necessary to sustain a charge if the place where the offending substance is found is under the dominion and control of the accused. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991) (decision under prior law).

Substantial evidence of constructive possession existed where abundant amounts of contraband lay in front of the defendant, in plain view, on the table, in his house when the police arrived. Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991) (decision under prior law).

Joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor linking the accused to the contraband. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993) (decision under prior law).

In order to prove a defendant is in possession of a controlled substance, constructive possession is sufficient; neither exclusive nor actual, physical possession of a controlled substance is necessary to sustain a charge. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995) (decided under former § 5-64-401).

Among the “linking” factors this court has considered in cases involving vehicles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with accused's personal effects; (3) whether the contraband 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; (5) whether the accused acted suspiciously before or during the arrest. Courts have also considered the improbability that anyone other than the occupants of the vehicle placed the contraband in the vehicle; and the improbable nature of the accused's explanation for his journey. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995) (decided under former § 5-64-401).

Evidence of possession held sufficient, even though parcel delivery service package was addressed to defendant's son, where defendant's activity in attempting to retrieve the package from the delivery service office supported the inference that defendant knew what the package contained. Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996) (decided under former § 5-64-401).

Evidence of possession held sufficient where the drugs and the defendant were both in a garage and the drug container was on the floor three feet from the defendant. Darrough v. State, 330 Ark. 808, 957 S.W.2d 707 (1997) (decided under former § 5-64-401).

Where contraband is discovered in jointly occupied premises and there is no direct evidence that it belongs to a particular occupant, some additional factors must be present linking the accused to the contraband; the state must prove that the accused exercised care, control and management over the contraband. Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003) (decided under former § 5-64-401).

During a random inspection of his truck, where defendant gave police officer the key to his trailer and consented to the search of his truck, evidence was sufficient to show that defendant constructively possessed 334.4 pounds of marijuana found in duffel bags and 4.26 pounds of cocaine found in the trailer; although there was a passenger in the cab, defendant had the only key to the locked trailer. McKenzie v. State, 362 Ark. 257, 208 S.W.3d 173 (2005) (decided under former § 5-64-401).

Sufficient evidence existed to convict defendant of possession of cocaine and marijuana with intent to deliver where (1) defendant exercised dominion over the car that he was driving, (2) the smell of marijuana from the trunk was so strong that, when the trunk was opened, defendant would have known it was there, and (3) there was a strong inference that the clothes in the trunk belonged to defendant. Malone v. State, 364 Ark. 256, 217 S.W.3d 810 (2005), cert. denied, 547 U.S. 1102, 126 S. Ct. 1890, 164 L. Ed. 2d 575 (2006) (decision under prior law).

Trial court properly denied defendant's motion for directed verdict where substantial evidence existed to support a conclusion that defendant had the intent to possess and deliver 520 grams of cocaine rather than the 12.7914 that he actually possessed and, thus, the jury properly sentenced defendant. Strong v. State, 368 Ark. 23, 242 S.W.3d 620 (2006) (decided under former § 5-64-401).

Trial court did not err in denying defendant's motion for a directed verdict where there was sufficient evidence under the constructive-possession inquiry to link defendant to the contraband, crack cocaine, under the driver's seat and in the back seat of a vehicle; the vehicle was not only registered in defendant's name, but defendant also insured it. Hence, defendant was properly convicted of possession of a controlled substance with intent to deliver. Tubbs v. State, 370 Ark. 47, 257 S.W.3d 47 (2007) (decision under prior law).

Evidence was sufficient to sustain a conviction for possession of methamphetamine with intent to deliver because when defendant left the residence, the bed of the truck was empty, but when he returned, the bed of the truck was full, and a parole officer testified that she found the coat with methamphetamine in defendant's truck in defendant's backyard. As the state points out, when the truck was searched, it was immediately and exclusively accessible to defendant, and he was in close proximity to the methamphetamine. Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007) (decided under former § 5-64-401).

Sufficient evidence supported a perpetrator's conviction of possession of controlled substances with the intent to deliver because the perpetrator's perfectly timed flight when officers pried open a false compartment in the vehicle in which the perpetrator was occupant was sufficiently compelling to show that he knew drugs were hidden in false compartment, and established possession. Benitez v. State, 99 Ark. App. 140, 257 S.W.3d 902 (2007) (decision under prior law).

Defendant was properly found guilty of possession of cocaine with the intent to deliver and possession of methamphetamine with the intent to deliver because there was substantial evidence that defendant, who continued to live at the residence at the time it was searched, was in constructive possession of the contraband found, and an informant testified that he made three controlled drug buys from defendant at the residence. Turner v. State, 2009 Ark. App. 822 (2009) (decision under prior law).

For purposes of his conviction of possession of methamphetamine with purpose to deliver, there was sufficient evidence to find that defendant was in constructive possession of the methamphetamine in the truck, where defendant drove the truck containing the drugs from a church to a nearby gas station because he and codefendant were spooked by police being in the area and defendant knew where the drugs were and was in proximity to them because he hit part of the truck to show the confidential informant where the drugs were hidden. Baker v. State, 2019 Ark. App. 515, 588 S.W.3d 844 (2019).

Sentencing.

Failure of the State to plead a specific amount of cocaine alleged to have been possessed did not limit the sentence that defendant could receive to the minimum allowed. Bustillos v. State, 2012 Ark. App. 654, 425 S.W.3d 44 (2012), cert. denied, — U.S. —, 134 S. Ct. 74, 187 L. Ed. 2d 57 (2013).

Suppression of Evidence.

Contact between defendant and an officer was the result of an investigation into drug-related criminal activity, not a routine traffic stop, because the officer blocked the vehicle in the driveway, demanded that defendant move to the back of the vehicle, informed her that he knew there were drugs in the vehicle, and asked where they were located. Defendant's pre-Miranda statement should have been suppressed. James v. State, 2012 Ark. App. 118, 390 S.W.3d 95 (2012).

Where defendant appealed his convictions for violating this section and § 5-64-443(c), circuit court's decision to deny his motion to suppress the evidence was not clearly against the preponderance of the evidence. Because he met the officers on his front porch with a rifle, an officer reasonably detained and frisked him to ensure the officers' safety, and the contraband was discovered when, after the valid frisk, defendant voluntarily pulled the contraband out of his pocket and showed it to the officer. King v. State, 2014 Ark. App. 81, 432 S.W.3d 127 (2014).