Terry Williams v. State of Arkansas
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Terry WILLIAMS v. STATE of Arkansas
CACR05-1064
___ S.W.3d ___
Court of Appeals of Arkansas
Opinion delivered March 15, 2006
1.
C RIMINAL LAW – S TATE FAILED TO ESTABLISH THAT APPELLANT EXERCISED CARE,
CONTROL, AND MANAGEMENT OVER THE CONTRABAND
– Appellant’s felon-in-
possession-of-a-firearm conviction was reversed and dismissed; where Arkansas Code
Annotated section 5-73-103(a)(1) provides that no person who has been convicted of
a felony shall possess or own any firearm, and the State and appellant stipulated that
appellant had previously been convicted of a violent felony, but there was no evidence
that the gun was found with any of appellant’s personal belongings; the State did not
test the weapon or the ammunition to see if appellant’s fingerprints were found; the
State also did not present evidence that appellant was the subject of the weapondisturbance call; rather, the only evidence the State presented was that the gun was
found in an apartment jointly occupied by appellant and that it was large and difficult
to handle; that evidence was not sufficient to link appellant to the gun, and the State
therefore failed to prove that appellant possessed the gun because it failed to show
that appellant exercised care, control, and management over it.
___________________________
GLOVER, J.
WILLIAMS v. STATE
Cite as 91 Ark. App. ___ (2006)
2.
Page 2
C RIMINAL LAW – STATUTES – APPELLANT’S CONVICTION SHOULD HAVE BEEN A C LASS
A MISDEMEANOR – CONVICTION WAS REDUCED AND REMANDED FOR RESENTENCING.–
Where appellant had previously been convicted of possession of cocaine, a Schedule
II drug, and possession of a Schedule II controlled substance is a Class C felony,
regardless of whether it is a first offense or a subsequent offense under Ark. Code
Annotated section 5-64-401(c)(2), but the statute clearly and plainly states that
possession of any other controlled substance, first offense, is a Class A misdemeanor,
and appellant had not been previously convicted of possession of “any other
controlled substance,” it was error for the trial court to allow him to be charged as a
second-time offender under these circumstances.
Appeal from Pulaski Circuit Court; L. Willard Proctor, Jr.,, Judge; reversed and
dismissed in part; affirmed as modified in part; remanded for resentencing.
Lucas Wayne Zakrezewski, for appellant.
Mike Beebe, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
D AVID M. G LOVER, Judge.
Appellant, Terry Williams, was convicted by a Pulaski County jury of the offenses of
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GLOVER, J.
WILLIAMS v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 3
possession of firearms by certain persons and second-offense possession of a controlled
substance - marijuana. He was sentenced to forty years in the Arkansas Department of
Correction for the firearms conviction and six years for the possession-of-a-controlledsubstance conviction, with the sentences to run concurrently. On appeal, he argues that the
circuit court erred (1) by denying his motion for directed verdict with regard to the firearms
charge; (2) by sustaining the State’s objection to the line of argument pursued by defense
counsel in closing argument; and (3) by refusing penalty-phase jury instructions proffered with
respect to the possession-of-marijuana charge. We reverse and dismiss in part, affirm as
modified in part, and remand for resentencing.
The State called two witnesses at trial. Elliot Young, a Little Rock police officer,
testified that on February 7, 2004, he responded to a weapon-disturbance call at 1812
Reservoir Road, Apartment 263. Young was advised by dispatch that the subject was about
to leave the premises in a Lincoln Town Car. When he arrived, Young saw appellant
standing by the described car with the driver’s side door open; Young ordered appellant to
put his hands up because appellant had started to reach into his left pocket when he saw
Young’s patrol car.
Appellant put his hands in the air, and Young performed a safety pat-down search,
during which he found a plastic bag containing a green leafy substance that was later
___________________________
GLOVER, J.
WILLIAMS v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 4
determined to be 12.8 grams of marijuana. Young also found appellant’s photo- identification
card during the search, and the address on the identification card was the same apartment
address from which the disturbance call had come. Young testified that he did not find a
weapon on appellant’s person, and he did not see any weapons in plain view in the vehicle.
Another Little Rock police officer, Harold Scratch, testified that he responded to a
disturbance-with-a-weapon call on February 7, 2004, at an apartment on Reservoir Road.
When he arrived Officer Young was placing appellant into custody, and Scratch assisted him.
After appellant was arrested, Officer Scratch made contact with the complainant of the
disturbance call, appellant’s girlfriend, a Ms. Harris, who granted permission to enter the
apartment to search for a weapon. In one of the two bedrooms, Scratch found a brown pistol
case under the right side of the bed, containing a Ruger .44 magnum with a laser-sighting
system and loaded with six hollow-point bullets.
On cross-examination, Scratch testified that Ms. Harris did not lead him to the gun,
but then he acknowledged that in his report he had written that Ms. Harris had shown them
where the gun was, and he said that statement was true. Scratch said that there were no signs
of a struggle in the apartment, and that Ms. Harris had no bruises, contusions, or anything to
indicate that she had been in a struggle. Scratch stated that the bag, gun, and bullets were not
fingerprinted, and that he did not know if the gun had ever been fired. Scratch said that the
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GLOVER, J.
WILLIAMS v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 5
.44 magnum was a very powerful and very deadly weapon; that it would have considerable
discharge; that it would be hard to control with one hand; and that you would have to be a
strong person to use it.
After the officers’ testimony, both parties stipulated to the fact that appellant had
previously been convicted of a violent felony, first-degree battery, for purposes of the firearms
possession charge, and the State rested. Appellant moved for a directed verdict with regard
to the firearms charge, arguing that the jury would have to resort to speculation with regard
to whether appellant possessed the firearm, and the trial judge denied that motion. Appellant
rested without calling any witnesses, and he renewed his directed-verdict motion, which was
again denied by the trial judge. The jury found appellant guilty on both charges, and
appellant now brings this appeal.
In his first point on appeal, appellant argues that the trial court erred in denying his
motion for directed verdict with regard to the charge of possession of firearms by certain
persons. In Vergara-Soto v. State, 77 Ark. App. 280, 282, 74 S.W.3d 683, 684 (2002), this
court set out our well-known standard of review for challenges to denials of directed-verdict
motions:
Directed-verdict motions are treated as challenges to the sufficiency of the evidence.
When we review a challenge to the sufficiency of the evidence, we will affirm the
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GLOVER, J.
WILLIAMS v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 6
conviction if there is substantial evidence to support it, when viewed in the light most
favorable to the State. Substantial evidence, whether direct or circumstantial, is that
which is of sufficient force and character that it will, with reasonable certainty, compel
a conclusion one way or another, without resort to speculation or conjecture. Only
evidence supporting the verdict is considered.
(Citations omitted.)
Arkansas Code Annotated section 5-73-103(a)(1) (Repl. 2005) provides that, but for
exceptions not pertinent to the facts of this case, no person who has been convicted of a
felony shall possess or own any firearm. In the present case, the parties stipulated that
appellant had previously been convicted of a violent felony. However, appellant’s argument
is not that the State failed to prove he was a convicted felon, but that the State failed to prove
that he possessed the gun that was found. We find merit in appellant’s argument.
In Abshure v. State, 79 Ark. App. 317, 321-22, 87 S.W.3d 822, 826 (2002), this court
stated:
To convict one of possessing contraband, the State must show that the defendant
exercised control or dominion over it. Neither exclusive nor actual physical
possession, however, is necessary to sustain a charge of possessing contraband; rather,
constructive possession is sufficient. Constructive possession may be implied when the
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GLOVER, J.
WILLIAMS v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 7
contraband is in the joint control of the accused and another; however, joint
occupancy alone is insufficient to establish possession or joint possession. The State
must establish in a prosecution for possessing contraband (1) that the accused exercised
care, control, and management over the contraband, and (2) that the accused knew the
matter possessed was contraband.
(Citations omitted.)
When the premises where contraband is found are jointly occupied, control and
knowledge of 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. Young v. State, 77 Ark. App. 245, 72 S.W.3d 895
(2002).
We hold that the State failed to establish that appellant exercised care, control, and
management over the contraband. Although appellant does not concede that he lived in the
apartment in which the gun was found, his photo identification card indicated that apartment
as his residence.
Appellant apparently lived in this two-bedroom apartment with his
girlfriend, because she was the person who gave consent for the search of the apartment in
which the gun was found. There was no testimony as to who rented the apartment, appellant
or his girlfriend, but because the gun was found in the jointly controlled apartment, the State
was required to show that appellant exercised care, control, and management over the
contraband, and that he knew the matter possessed was contraband.
___________________________
GLOVER, J.
WILLIAMS v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 8
Appellant was outside in the parking lot of the apartment complex when the police
arrived, and he had already been arrested when the police found the gun in the apartment.
The gun was under the right side of the bed, but there was no testimony as to who had placed
it there; whether appellant slept in that bedroom; whether he slept on that side of the bed; or
whether he was the person who had brought the gun into the apartment. There was no
evidence that the gun was found with any of appellant’s personal belongings. The State did
not test the weapon or the ammunition to see if appellant’s fingerprints were found. The
State also did not present evidence that appellant was the subject of the weapon-disturbance
call. The only evidence the State presented was that the gun was found in an apartment
jointly occupied by appellant and that it was large and difficult to handle, and that evidence
is not sufficient to link appellant to the gun. We hold that the State failed to prove that
appellant possessed the gun because it failed to show that appellant exercised care, control, and
management over it, and we reverse and dismiss appellant’s felon-in-possession-of-a-firearm
conviction. Due to this holding, it is unnecessary to discuss the second prong of the test whether appellant knew that the matter possessed was contraband.
In his second point on appeal, appellant contends that the trial judge erroneously
limited his counsel’s closing argument when the trial judge sustained the State’s objection to
his counsel’s statement that “the prosecutors’ main problem is they want to narrow possession
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GLOVER, J.
WILLIAMS v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 9
of that gun down to two people. They want you to forget everybody else in the world.”
Due to our disposition of appellant’s first point of appeal, it is unnecessary to address this
point.
In his third point on appeal, appellant contends that the trial court erred in sentencing
him for a Class D felony instead of a Class A misdemeanor on the possession-of-marijuana
charge. Arkansas Code Annotated section 5-64-401(c)(2) (Repl. 2005) provides:
Any person who violates this subsection with respect to:
(A) A controlled substance classified in Schedule I or Schedule II is guilty of a Class C
felony;
(B) Any other controlled substance, first offense, is guilty of a Class A misdemeanor;
(C) Any other controlled substance, second offense, is guilty of a Class D felony; and
(D) Any other controlled substance, third or subsequent offense, is guilty of a Class C
felony.
Appellant had previously been convicted of possession of cocaine, a Schedule II drug,
but this conviction was his first offense for any other controlled substance other than cocaine.
Nevertheless, because of the conviction for possession of cocaine, the trial court increased
appellant’s possession-of-marijuana charge to a second offense, making it a Class D felony.
Appellant argues that this conviction should only be a Class A misdemeanor because it was
his first offense for a controlled substance that was not a Schedule I or Schedule II drug. We
___________________________
GLOVER, J.
WILLIAMS v. STATE
Cite as 91 Ark. App. ___ (2006)
Page 10
agree.
Criminal statutes are strictly construed, with any doubts being resolved in favor of the
defendant; however, our appellate courts are first and foremost concerned with ascertaining
the intent of the General Assembly. Vergara-Soto v. State, supra. In statutory interpretation,
we construe a statute just as it reads, giving the words their ordinary and usually accepted
meaning in common language. Id.
Possession of a Schedule II controlled substance is a Class C felony, regardless of
whether it is a first offense or a subsequent offense. However, the statute clearly and plainly
states that possession of any other controlled substance, first offense, is a Class A misdemeanor.
In the present case, appellant had not been previously convicted of possession of “any other
controlled substance,” and therefore it was error for the trial court to allow him to be charged
as a second-time offender under these circumstances. This interpretation is in line with this
court’s decision in Sossaman v. State, 31 Ark. App. 131, 789 S.W.2d 738 (1990), where this
court held that an Oklahoma conviction could not be used to increase the offense to a second
offense because the first conviction was not under “this subsection.” Accordingly, we reduce
the marijuana possession conviction to a Class A misdemeanor, and we remand for
resentencing.
Reversed and dismissed in part; affirmed as modified in part; remanded for
___________________________
GLOVER, J.
WILLIAMS v. STATE
Cite as 91 Ark. App. ___ (2006)
resentencing.
B IRD and C RABTREE, JJ., agree.
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GLOVER, J.
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