The opinion
Andree Layton Roaf, Judge, dissenting. I do not agree that this conviction should be affirmed. In order to convict Killian of being a felon in possession of a firearm, the State need not prove actual possession or ownership; constructive possession, which is the control or the right to control the contraband, is sufficient. Knight v. State, 51 Ark. App. 60 , 908 S.W.2d 644 (1995). Constructive possession can be implied where the contraband was found immediately and exclusively accessible to the accused and subject to his control, id. However, where the conviction is based on joint occupancy of the premises where contraband is found, there must be some additional factor present linking the accused to the contraband. Darrough v. State, 322 Ark. 251 , 908 S.W.2d 325 (1995). In joint-occupancy cases, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband; and (2) the accused knew that the matter possessed was contraband. Id., (citing Plotts v. State, 297 Ark. 66 , 759 S.W.2d 793 (1988)).
In the instant case, the only additional factor present is Kil-lian’s statement. For it to constitute substantial evidence, the jury would have to infer from the statement that Killian exercised control over the gun, not simply that he knew where it was hidden.
This is a stretch that I cannot make. The officer who allegedly heard the statement testified that he did not recall the exact words, and did not put the statement in his report, but recalled that Killian said that “it needed to be hidden better or wasn’t hidden good enough or something to that effect.”
The statement could have merely been a flippant remark or could have been an acknowledgment of sorts that Killian knew the gun was there. However, in a joint-occupancy case involving a firearm, knowledge that a gun is present does not carry the same import as knowledge that illegal drugs or other such contraband are present. Furthermore, people hide guns in their homes for good reasons, especially where children are present.
Of course, felons may not possess firearms. However, family members of felons may do so. By today’s ruling, the majority, in effect, has narrowed the options for family members willing to take in a felon who has paid his debt to society, and for the convicted felon as well — give up the gun or expose the returning family member to the risk of further incarceration for simply knowing that there is a gun in the family home.