By Ray King
A Pine Bluff man convicted of drug and weapons charges in 2019 failed to convince the Arkansas Court of Appeals that his convictions should be dismissed because prosecutors failed to prove he was in possession of the weapon or drugs.
The court said in a ruling released Wednesday there was “substantial evidence” supporting the conviction.
Dertarvious Cain, now 21, was arrested in 2018 when former Pine Bluff Police Officer Tamica Oswalt, who was assigned to the Violent Crimes Unit, stopped a vehicle driven by Cain after seeing it run a red light. The vehicle also had a broken headlight.
At Cain’s trial in 2019, Oswalt testified that Cain had no proof of insurance and the intermediate certificate he provided showed that he was not allowed to drive without a licensed driver. He was alone in the vehicle at the time. She also testified that Cain told her the vehicle was not his, and said it belonged to his friend’s mother. After speaking to someone they believed to be the vehicle’s owner, officers had the car towed because they could not establish the ownership with certainty.
She also said Cain was acting extremely nervous and apprehensive and told the officers he did not want them in the car.
Appeals Court Judge Meredith B. Switzer said in the ruling that Oswalt conducted an inventory search of the car to check for anything of value before the wrecker arrived and document it. When Oswalt bent down with her flashlight and entered the car, she was able to see a gun, and Cain was handcuffed.
Oswalt testified that a pistol with an extended magazine was underneath the driver’s seat. The gun was loaded, and the extended magazine could hold 30 rounds. She also found a bag under the driver’s seat “in the middle of the long bench seat where the bars connect.” The bag contained small, individually wrapped items Oswalt believed to be crack cocaine. A backpack in the floorboard of the back seat contained several ounces of marijuana in a sealed vacuum container.
On cross examination, Oswalt testified that she did not think any of the items in the vehicle belonged to Cain, but the arrest was based on the fact that he was driving the car and in possession of it when the items were found during the inventory search.
After prosecutors completed their case, an attorney for Cain moved to dismiss the charges, arguing that the marijuana was found in the backpack in the back seat, it had no ties to Cain, and was located near other items containing identification related to other individuals, and there was no substantial proof that Cain knew about any of the contraband. Circuit Judge Rob Wyatt agreed to a motion to dismiss one count of possession of drug paraphernalia but denied a motion seeking to dismiss the gun and drug allegations.
Writing for the court, Switzer said when a single occupant is in a car owned by another person, prosecutors needed only to prove constructive possession, that is, contraband that is found in a place immediately and exclusively accessible to the accused and subject to his or her control.
In this case, Oswalt testified that the gun was found under the driver’s seat with the bag of small individually wrapped items that were later determined to be crack cocaine. The marijuana was found in the floorboard of the back seat behind the passenger seat. All the items were found in places immediately and exclusively accessible to Cain.
There was also testimony that Cain was extremely nervous, did not want the officers searching the car, and described the person he borrowed the car from as “his home boy” and “kind of shady.”
