¶1dissenting. I would reverse the revocation of appellant’s probation. Even on a preponderance standard, the State failed to prove that he constructively possessed either of the shotguns that were in the trunk of the vehicle owned and driven by Richard McClure, in which appellant was a passenger. While the State may prove possession by showing that appellant controlled a gun or had the right to control it, Polk v. State, 348 Ark. 446, 73 S.W.2d 609 (2002), the State failed to do so here.
¶2The evidence cited by the majority to support that appellant controlled a firearm was that appellant was wearing Carhart clothing used by hunters, that he possessed hunter-orange clothing, that he admitted that he was going hunting, and that he admitted that one of the shotguns in the trunk of McClure’s car belonged to his father. However, it cannot be said that appellant possessed the hunter-orange clothing. Appellant denied that he had any hunter-orange clothing in his possession, and Officer Tina Pomaybo admitted during her rebuttal testimony that she saw the driver of the vehicle, McClure, retrieve the hunter-orange vest from his vehicle.
¶3Moreover, the remaining evidence does not show appellant’s ownership of the weapon or the right to control it, but merely tends to show that appellant knew the gun was in the trunk. Certainly appellant’s knowledge that his father’s gun was in the trunk is not sufficient, even on a preponderance standard, to support a finding that he controlled the gun or had the right to control it.
¶4Additionally, the cases cited by the majority are inapposite because the facts in those cases constituted much stronger proof to support constructive possession. In Polk v. State, supra, the defendant was the sole occupant of the borrowed car he was driving, the drugs were found on the inside of the car, above the driver’s side visor, and the gun was found underneath the rear passenger floor mat of the car. In Cherry v. State, 80 Ark. App. 22, 95 S.W.3d 5 (2003), a simultaneous-possession case, the firearm was found in the defendant’s kitchen next to items used to manufacture methamphetamine.
¶5Here, unlike the Polk defendant, appellant was not in possession of the vehicle, much less sole possession of the vehicle, which was being driven by the owner. Appellant was merely a passenger in the front seat. There was no evidence presented to support that the gun belonged to appellant, only that one of the guns in the trunk belonged to appellant’s father. Moreover, the gun was not found in the interior of the car, where it would have been readily accessible to appellant. Instead, the gun was locked in the trunk, to which appellant had no key. Thus, unlike the Polk defendant or the Cherry defendant, the gun here was not found in a place to which appellant had joint access, much less exclusive access. How then, can it be said that he owned or had the right to control the weapon?
¶6In short, I cannot join the majority in holding that appellant possessed the gun where the gun, which did not belong to him, was locked in the trunk of another person’s car that was being driven by the owner and in which appellant was a mere passenger, and where appellant had no access to the gun because he had no keys to the trunk of the car and no means to control the car or its contents. I respectfully dissent.
¶7I am authorized to state that Judges Hart, Gladwin, and Glover join in this dissent.