Cite as 2017 Ark. App. 337

ARKANSAS COURT OF APPEALS

DIVISION II 

No. CR-16-931

LANCE W. HARJO

 APPELLANT

V.

STATE OF ARKANSAS

 APPELLEE

Opinion Delivered May 24, 2017

APPEAL FROM THE POLK COUNTY 

CIRCUIT COURT

[NO. 57CR-16-3] 

HONORABLE JERRY RYAN, 

JUDGE

AFFIRMED

LARRY D. VAUGHT, Judge

Appellant Lance Harjo appeals his conviction by a Polk County jury of trafficking in 

methamphetamine, possession of drug paraphernalia, simultaneous possession of drugs and 

firearms, maintaining a drug premises, illegal use of a communication device, possession of a 

defaced firearm, and possession of marijuana with intent to deliver. Specifically, he challenges 

the finding that he constructively possessed the drugs and firearms found during the search 

and that security cameras placed around the property constituted “communications devices” 

under Arkansas Code Annotated section 5-64-404. We affirm on both points.

On January 5, 2016, members of the 18th West Judicial District Task Force and the 

Polk County Sheriff’s Department executed a search warrant at Harjo’s home. At trial, the 

evidence established that the officers were familiar with Harjo and knew that he occupied the 

residence. When officers arrived to search the home, Harjo was inside an adjacent shop 

building with two other individuals. Xabrina Kahn Cunningham, who officers also knew to be 
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2 

living with Harjo, was asleep in the master bedroom. As Cunningham was being led away by 

the officers, Harjo stated that anything they found in their search was his. 

The search of Harjo’s home focused largely on the master bedroom that, based on the 

clothing found there, appeared to be shared by Harjo and Cunningham. The bedroom was 

described in the trial testimony as having a shallow closet with doors that had been removed, 

in which a desk had been placed. In plain sight on the desk or beside it were various bills 

addressed to Harjo (indicating that he resided in the home), firearms (assault rifles, a shotgun, 

and a handgun), ammunition, a digital scale, night vision goggles, small quantities of packaged 

marijuana, various pills, and “a lot of methamphetamine” packaged in a Ziploc bag and in red 

Solo cups. Inside the desk, they found a plastic bag containing a substance that appeared to 

be marijuana, another scale, devices used to smoke methamphetamine or marijuana, and a 

Ruger P-95 semiautomatic pistol with identifying serial numbers that had been drilled out. 

Inside the adjacent shop building, officers found a safe, which they seized. After obtaining a 

second search warrant to open the safe, they found cash, a firearm, and marijuana and 

methamphetamine in small plastic bags. 

Liza Wilcox, a forensic chemist with the Arkansas State Crime Laboratory, testified 

that she tested various items seized during the search of Harjo’s residence. Wilcox testified 

that the materials tested were positively identified as marijuana and methamphetamine. 

Moreover, a waxy substance obtained in the search contained THC, and the pills contained

hydrocodone and oxycodone. Once she had established the presence of methamphetamine in 

an aggregate quantity of over approximately 300 grams, she did not test the remaining drug 
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contraband because the statutory presumption for trafficking is only 200 grams. Ark. Code 

Ann. § 5-64-440(b)(1) (Repl. 2016).

Harjo was convicted and filed a timely notice of appeal. He raises two challenges to his 

convictions: that there was insufficient evidence to establish constructive possession and that 

the security cameras around his home were not communications devices pursuant to section 

5-64-404. Both of Harjo’s points on appeal are, essentially, challenges to the sufficiency of the 

evidence.1 

When reviewing the sufficiency of the evidence, this court views the evidence in the 

light most favorable to the State, considering only evidence that supports the verdict, and 

affirms if substantial evidence, direct or circumstantial, supports the verdict. Alexander v. State, 

78 Ark. App. 56, 62, 77 S.W.3d 544, 547 (2002). Substantial evidence is evidence that is of 

sufficient force and character that it will, with reasonable certainty, compel a conclusion 

without resorting to speculation or conjecture. Id. For circumstantial evidence to be sufficient, 

it must exclude every other reasonable hypothesis consistent with innocence, but whether it 

does so is left to the jury alone to determine. Williams v. State, 338 Ark. 97, 106–107, 991 S.W.2d 

565, 569 (1999).

Constructive possession can be inferred when the contraband is found in a place 

immediately and exclusively accessible to the defendant and subject to his control. Franklin v. 

State, 60 Ark. App. 198, 201, 962 S.W.2d 370, 372 (1998). Constructive possession can also be 

inferred when the contraband is in the joint control of the accused and another. Id. However, 

 1Harjo’s second point on appeal hinges not on a question of statutory interpretation

but on whether there was sufficient evidence to meet the statutory definition. 
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4 

joint occupancy alone is not sufficient to establish possession or joint possession; there must 

be some additional factor linking the accused to the contraband. Id. In such cases, the State 

must prove that the accused exercised care, control, and management over the contraband

and that the accused knew the matter possessed was contraband. Id. Control over the 

contraband can be inferred from the circumstances, such as the proximity of the contraband 

to the accused, the fact that it is in plain view, and the ownership of the property where the 

contraband is found. Nichols v. State, 306 Ark. 417, 420, 815 S.W.2d 382, 384 (1991). 

Furthermore, jurors do not and need not view each fact in isolation, but rather may consider 

the evidence as a whole. Bridges v. State, 46 Ark. App. 198, 202, 878 S.W.2d 781, 784 (1994). 

Jurors are also entitled to draw any reasonable inference from circumstantial evidence to the 

same extent that they can from direct evidence. Shipley v. State, 25 Ark. App. 262, 267, 757 

S.W.2d 178, 181 (1988).

We are satisfied that substantial evidence was presented at trial to support the jury’s 

finding that Harjo constructively possessed the contraband found in the home. First, officers 

testified that they were familiar with Harjo and had prior knowledge that he lived at that 

address. Second, bills in his name were found in the bedroom along with men’s clothing. Harjo 

was physically present at the residence when officers arrived. Finally, and most notably, Harjo 

told officers that whatever they found in their search of the home belonged to him. Therefore, 

we hold that substantial evidence supports the jury’s finding that Harjo exercised care, control, 

and management over the contraband and affirm on this point.

Harjo’s second point on appeal challenges the sufficiency of the evidence for his 

conviction for using a communication device to facilitate drug-related activity pursuant to 
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Arkansas Code Annotated section 5-64-404. The only communication devices alleged to have 

been used were several security cameras positioned around the home that transmitted images 

to a multiplex video monitor located on the desk in the master bedroom (the same desk where 

the contraband was found). Harjo claims that the video cameras do not meet the statutory 

definition of a “communication device.” We disagree. Arkansas Code Annotated section 5-

64-404, states, in part:

(a)(1) As used in this section, “communication device” means any public or private 

instrumentality used or useful in the transmission of a writing, sign, signal, picture, or sound of 

any kind.

(2) “Communication device” includes mail, telephone, wire, radio, and any 

other means of communication.

(b) A person commits the offense of unlawful use of a communication device 

if he or she knowingly uses any communication device in committing or in causing or 

facilitating the commission of any act constituting a:

(1) Felony under this chapter[.] 

Id. (emphasis added). 

Here, there can be no dispute that the cameras positioned around the home were used 

or useful in the transmission of a picture back to the monitor. The fact that they are not 

specifically listed in section (a)(2) is not dispositive because that section includes the catchall 

phrase “or any other means of communication.” Under the plain language of the statute, 

security cameras that transmit images to a monitor qualify as communication devices. 

On appeal, Harjo also argues that the cameras were not used in committing or 

facilitating the drug offenses for which he was convicted. Harjo argues that the cameras were 

simply used for home security, not to commit or facilitate a crime. At trial, however, Harjo 

never argued that the cameras were used for legal purposes rather than to facilitate his crimes. 
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He only contested whether they met the statutory definition of a communication device, not 

whether the State had presented sufficient evidence to support each element of the offense. 

Our law is clear that a party is bound by the scope and nature of his directed-verdict motion 

and cannot change the grounds on appeal. Plessy v. State, 2012 Ark. App. 74, at 3–4, 388 S.W.3d 

509, 513.

Affirmed. 

HARRISON and BROWN, JJ., agree. 

Shane Ethridge, for appellant.

Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.