Ark. Code Ann. § 5-74-106 (2026)

Case Notes

Constitutionality.

This section does not unconstitutionally overlap or conflict with § 5-73-120. Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998).

This section does not violate the federal constitutional right to bear arms. Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998).

Purpose.

This section not only serves the purpose of deterring organized gang and criminal activities, but also serves the broader purpose of curtailing any person's use of a firearm when he or she is involved in the illegal possession or trafficking of controlled substances. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).

Constructive Possession.

State did not have to show that defendant physically possessed the handgun in order to sustain a conviction under this section for its possession if the gun's location was such that it was under defendant's dominion and control; the gun in defendant's kitchen next to items used to manufacture methamphetamine sufficiently met that burden. Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003) (decided under former § 5-64-401).

Evidence of drugs and firearms, both found in defendant's locked bedroom, provided sufficient evidence for a conviction of simultaneous possession under this section because defendant had the only key to the bedroom, which was deemed to give him constructive possession, and defendant did not qualify for the exemption under subsection (d) of this section because he was not home at the time of the search and the firearms were easily accessible. Ibarra v. State, 2009 Ark. App. 707 (2009).

For purposes of defendant's convictions, his absence at the time of the search did not eliminate a conclusion of constructive possession based on the fact that the drugs and firearm were found in a bedroom closet in close proximity, the bedroom was shared by defendant and another, defendant was at the house prior to the search, and he admitted purchasing the marijuana and possessing the firearm, which inferred more than mere knowledge of the contraband, but also ownership and control over them. Dotson v. State, 2013 Ark. App. 550 (2013).

There was sufficient evidence to support convictions for possession of marijuana with intent to deliver and the simultaneous possession of drugs and firearms based on drugs that were discovered behind a shed; defendant emerged from behind the shed, in close proximity to the drugs, there was no possibility that the drugs could have been tossed from a road, and the bag of drugs was clean and dry, despite the rain. Defendant began acting nervous and making spontaneous statements when it was obvious that officers were going to search behind the shed, defendant had a large amount of cash when he was arrested, and he admitted to having a gun. Block v. State, 2015 Ark. App. 83, 455 S.W.3d 336 (2015).

Sufficient evidence supported defendant's conviction for simultaneous possession of drugs and a firearm because a jury could find defendant constructively possessed a gun found in a vehicle in which defendant was arrested, which defendant drove and solely occupied, as the gun was in plain view of an occupant of the driver's seat. Robinson v. State, 2017 Ark. App. 689, 537 S.W.3d 765 (2017).

Circuit court did not err in denying defendant's motion to dismiss the possession of methamphetamine and simultaneous possession of methamphetamine and a firearm charges where a deputy, while pursuing defendant, observed him throw a black object out of the window, the deputy discovered a bag of narcotics and a firearm in the location, and the deputy did not observe any other traffic in the area; thus, substantial circumstantial evidence supported defendant's constructive possession of the drugs and firearm. Terry v. State, 2018 Ark. App. 435, 559 S.W.3d 301 (2018).

State failed to prove that defendant constructively possessed the firearms that were found in the trailer house where defendant lived because the State did not show that the guns were in defendant's care, control, or management as defendant was found hiding under a couch in the living room, and the firearms were found in the bedroom, under a bed, within arm's reach of another individual hiding under the bed. There was no additional factor that allowed an inference that defendant had control or knowledge of the firearms. McCarley v. State, 2019 Ark. App. 222, 575 S.W.3d 603 (2019).

Defense.

Defendant, who waited outside his residence during a police search of his residence during which officers found a nine millimeter pistol in a sock along with methamphetamine, could not avail himself of the defense to the charge of simultaneous possession of a firearm contained in subsection (d) of this section; the defense requires that defendant be in the home when the handgun is being discovered. Vergara-Soto v. State, 77 Ark. App. 280, 74 S.W.3d 683 (2002).

To the extent defendant argued that he could not be found guilty of simultaneous possession of drugs and a firearm because he was not present when the gun and drugs were found and the gun was not readily accessible to him, that defense was not available to him, as he was not in his home during the search. Dotson v. State, 2013 Ark. App. 550 (2013).

Trial court did not abuse its discretion in refusing to give an affirmative-defense instruction under subsection (d) of this section where the testimony and evidence at trial left no fact question as to whether the multiple loaded firearms found in appellant's bedroom were readily accessible for use, and thus, there was no basis from which the jury could conclude that appellant did not have firearms readily accessible for his use. Cogburn v. State, 2016 Ark. App. 543 (2016).

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; 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).

Elements of Offense.

Evidence of gang-related activity is not required to establish a violation of this section. State v. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997), cert. denied, 522 U.S. 1125, 118 S. Ct. 1072, 140 L. Ed. 2d 131 (1998); McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).

Evidence.

Evidence held sufficient to support simultaneous possession. Mitchell v. State, 321 Ark. 570, 906 S.W.2d 307 (1995).

There was substantial evidence that defendant knew of and had control of contraband, possessed it with the intent to deliver, had simultaneous possession of cocaine and firearm, and that he was a felon in possession of a firearm. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995).

Evidence held sufficient where (1) while most of the controlled substance was found in a car's rear fender well, some was found in the front passenger seat, (2) a pistol was found on the floor behind the driver's seat, and (3) the defendant was the sole occupant of the car. Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998).

Evidence was sufficient to support a conviction where, upon executing a search warrant at the defendant's house, the police found (1) 10 grams of pure methamphetamine in the defendant's pants pocket, (2) drug paraphernalia throughout the house, (3) an unloaded handgun in the living room, with a bag with ammunition in a nearby paper bag, and (4) bills and receipts with the defendant's name on them in close proximity to the handgun. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000).

Stop was not justified where there was no testimony that the officer was investigating or preventing a crime when she encountered defendant, therefore, the search was illegal and defendant's motion to suppress the evidence of the cocaine and the firearm should have been granted. Jennings v. State, 69 Ark. App. 50, 10 S.W.3d 105 (2000).

Evidence was insufficient to support a conviction for simultaneous possession of a controlled substance and a firearm where (1) after stopping a vehicle operated by the defendant and a vehicle operated by his cousin's boyfriend, the defendant was not allowed to continue driving because of his level of intoxication and his vehicle was subjected to an inventory search in preparation for towing, and (2) during the search, a suitcase containing marijuana was found in the trunk, but (3) the cousin's boyfriend asked the defendant to carry the suitcase in his trunk, the suitcase was found with other items belonging to the cousin and her boyfriend, (4) the marijuana was well-wrapped inside several bags and no odor emanated from the suitcase, (5) the cousin's boyfriend's fingerprint was found on one of the plastic bags, whereas the defendant's fingerprints were not found on any of the items seized by the state, and (6) the reason for the defendant's trip was to visit his sick brother, who died during the pendency of the trial. Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000).

Evidence was sufficient to support a conviction where (1) the defendant's girlfriend testified that she observed the defendant asleep with his gun either laying on his chest or in his hand, that the gun had a laser sight on it, and that she also observed a bag of drugs near him, and (2) a police officer testified that he found the gun on the floor in the room where the defendant had fallen asleep and described the general connection between firearms and drugs, testifying that of the 50 methamphetamine labs he had seen in the last three years, he could not recall one in which a firearm was not found. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001).

Evidence was sufficient to support a conviction, notwithstanding the defendant's assertion that she did not possess a useable amount of the controlled substance, where she was convicted of manufacture of methamphetamine and she abandoned her argument that there was insufficient evidence presented by the state to prove that she possessed a firearm. Harris v. State, 73 Ark. App. 185, 44 S.W.3d 347 (2001).

Evidence was sufficient to convict defendant of simultaneous possession of drugs and firearms, in violation of this section, because the police discovered loaded weapons in the same out-building where methamphetamine had recently been manufactured. Aydelotte v. State, 85 Ark. App. 67, 146 S.W.3d 392 (2004).

Evidence was sufficient to convict defendant of drug possession charges given that a crack house was rented to him, a confidential informant testified that he purchased drugs from defendant a day earlier, the serial numbers of money found on defendant matched the money used in the controlled buy, and drugs were in plain view in the home. Carter v. State, 2010 Ark. 293, 367 S.W.3d 544 (2010).

There was substantial evidence that defendant exercised care, control, and management over the contraband, where (1) he lived at the house where the contraband was discovered, (2) a police officer found several illegal items lying in close proximity to defendant, and (3) there was no evidence that there were other suspects in the home at the time of the raid that may have also lived there. Allen v. State, 2010 Ark. App. 266 (2010).

When defendant was convicted of simultaneously possessing drugs and firearms, in violation of this section, sufficient evidence supported a jury's finding that defendant possessed a firearm because (1) defendant told police a gun found in defendant's wife's purse belonged to defendant, (2) defendant and defendant's wife were in defendant's car, in which the purse was found, together when police pulled up behind the car, and (3) defendant fled when police tried to arrest defendant, after finding a marijuana cigarette in the car. Patton v. State, 2010 Ark. App. 453 (2010).

Defendant's conviction for simultaneous possession of drugs and firearms was proper because the evidence to support the conviction was overwhelming and confirmed by testimony of a woman who was living with defendant in the motel room where the evidence was found; inside the motel room, investigators discovered defendant's personal identification and other personal paperwork, substantial amounts of marijuana and other drugs, two firearms, drug paraphernalia, and a ledger of drug transactions. Mathis v. State, 2010 Ark. App. 665 (2010).

Evidence was sufficient to convict defendant of possession of cocaine and simultaneous possession of drugs and firearms, because the jury could reasonably conclude that defendant had knowledge of the cocaine and exercised care, control, and management of the cocaine, and defendant constructively possessed the cocaine and he did so while in possession of a firearm; the cocaine was found at a location that was level with the driver's knee and defendant was in close proximity to the drugs, and the handgun was located inside the vehicle. Boykin v. State, 2012 Ark. App. 274, 409 S.W.3d 321 (2012).

In a case involving drugs and weapons offenses, it was error to allow a video of law enforcement officers firing a weapon found in the search of the home to be played for the jury and admitted into evidence because it was not relevant to any of the specific offenses charged as the offenses did not require that the weapon be fireable; however, the error was harmless because the evidence against defendant was overwhelming and defendant's sentences fell within the statutory sentence ranges. Gutierrez v. State, 2015 Ark. App. 516, 472 S.W.3d 147 (2015).

There was no abuse of discretion in allowing a police officer to testify about the test-firing of the weapons seized from defendant because defendant knew about the weapons and could have conducted his own tests, the prosecutor notified defendant's counsel of the test-fires, there were no written reports prepared, and the State did not intend to use the video of the testing when it was found to exist. Jones v. State, 2016 Ark. App. 354, 498 S.W.3d 309 (2016).

Preservation for Review.

When defendant was convicted of simultaneously possessing drugs and firearms, in violation of this section, defendant did not waive, for appellate review, the issue of whether sufficient evidence showed defendant possessed a firearm by not renewing a directed verdict motion at the close of all evidence because defendant moved for a directed verdict at the close of the state's evidence, and defendant did not present any evidence. Patton v. State, 2010 Ark. App. 453 (2010).

Defendant did not preserve an appellate argument that his truck was his home on the road, permitting the defense under this section that defendant was in his home and his gun was not readily accessible; even if defendant sufficiently articulated the argument at the close of the State's case, defendant did not renew the argument at the close of all the evidence, as required by Ark. R. Crim. P. 33.1. Steen v. State, 2018 Ark. App. 156, 545 S.W.3d 789 (2018).

Readily Accessible.

A loaded handgun, although wrapped in a ski mask in a closet in a different room, was within defendant's easy reach and was therefore “readily accessible for use.” Manning v. State, 330 Ark. 699, 956 S.W.2d 184 (1997).

The defendant's conviction for simultaneous possession of a controlled substance and a firearm was reversed where a .22 caliber rifle was recovered from the kitchen of her residence, but the rifle was not readily accessible for use because it was not loaded, and no ammunition was recovered. Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001).

Evidence was sufficient to convict defendant of simultaneous possession of drugs and firearms under this section and defendant could not avail himself of the defense in subsection (d) as he possessed methamphetamine and a gun was accessible for use because it was in plain sight on a night stand with an ammunition clip nearby and the gun could have easily been loaded. Arroyo v. State, 2011 Ark. App. 523 (2011).

Sufficient evidence supported defendant's conviction for simultaneous possession of drugs and firearms because (1) ammunition found at the scene of defendant's arrest did not have to be introduced, (2) a detective testified a loaded gun was found, and (3) a photo of ammunition taken from the gun's chamber was introduced, so there was substantial evidence that at least one gun was “readily accessible for use.” Kourakis v. State, 2015 Ark. App. 612, 474 S.W.3d 536 (2015).

Sentence.

Sentencing may not be other than in accordance with the statute in effect at the time of the commission of the crime, and where the law does not authorize the particular sentence pronounced by a trial court, that sentence is unauthorized and illegal. State v. Stephenson, 340 Ark. 229, 9 S.W.3d 495 (2000).

When a defendant is convicted of a Class Y felony, the General Assembly has specifically provided that a trial court shall not suspend imposition of sentence as to a term of imprisonment or place the defendant on probation. State v. Stephenson, 340 Ark. 229, 9 S.W.3d 495 (2000).

—Suspension Prohibited.

The trial court had no statutory authority to suspend the imposition of sentence or to suspend execution of the 10-year sentence on the Class Y felony charge of simultaneous possession of drugs and firearms. State v. Stephenson, 340 Ark. 229, 9 S.W.3d 495 (2000).

Defendant's conviction for simultaneous possession of drugs and firearms was a violation of this section and a Class Y felony, and under § 5-4-401(a)(1), a defendant convicted of a Class Y felony was to be sentenced to not less than 10 years; consequently, the trial court erred in suspending 4 years of the 10-year sentence imposed upon defendant. State v. Fountain, 350 Ark. 437, 88 S.W.3d 411 (2002).

Cited: Ray v. State, 328 Ark. 176, 941 S.W.2d 427 (1997); Curtis v. State, 76 Ark. App. 458, 68 S.W.3d 305 (2002).