Heritage v. State

Jimmy HERITAGE v. STATE of Arkansas

CR 96-735                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 16, 1996


1.   Evidence -- substantial evidence defined -- standard of
     review. -- Substantial evidence is that which is forceful
     enough to compel a conclusion one way or another and which
     goes beyond speculation or conjecture; in determining whether
     there is substantial evidence to support a conviction, the
     appellate court reviews the evidence in the light most
     favorable to the appellee and considers only that evidence
     which supports the verdict.

2.   Evidence -- ample evidence of appellant's intent to deliver. -
     - The supreme court held that there was ample evidence of
     appellant's intent to deliver; possession of amphetamines in
     an amount exceeding two hundred milligrams creates a
     rebuttable presumption of intent to deliver; the presumption
     amounts to substantial evidence of intent to deliver; the
     proof, when viewed in a light most favorable to the State,
     supported the inference that appellant knew what a package he
     had picked up at a delivery-service office contained.

3.   Evidence -- circumstantial evidence supported jury's verdict.
     -- A person's state of mind is seldom capable of proof by
     direct evidence; it must be ascertained from the circumstances
     surrounding the event; the supreme court held that the
     circumstantial evidence supported the jury's verdict.

4.   Criminal procedure -- severance -- granting is discretionary -
     - no abuse in refusal to sever. -- The decision on whether to
     grant severance is within the trial court's discretion; while
     offenses may not be joined solely on the basis that they are
     of the same or similar character, they may be joined if they
     are part of a single scheme or plan; where appellant was in
     possession of two distinct amounts of the same type of
     controlled substance at the same time and at the same
     location, and each substance was possessed in a weight
     sufficient to raise the presumption of intent to deliver, the
     supreme court found no abuse of discretion by the trial court
     in refusing to sever the offenses.

5.   Search & seizure -- permissible purposes -- officer may look
     for fruits and instrumentalities of crime. -- An officer who
     makes a lawful arrest of a suspect is authorized to search the
     person of the arrestee to look not only for weapons but for
     the fruits and instrumentalities of the crime.

6.   Search & seizure -- when reasonable cause exists. --
     Reasonable cause exists where the facts and circumstances
     within the arresting officers' knowledge and of which they
     have reasonably trustworthy information are sufficient in
     themselves to warrant a person of reasonable caution to
     conclude that an offense has been or is being committed.

7.   Search & seizure -- reasonable cause to arrest appellant
     existed -- warrantless search justified. -- Reasonable cause
     to arrest appellant existed, and the warrantless search of his
     person was justified where, at the time appellant was
     arrested, he was in possession of a package that the officers
     knew to contain illegal drugs, and where, even though the
     package was addressed to his son, appellant had shown an
     interest in the package sufficient to lead authorities to
     conclude that he was aware of its contents.

8.   Search & seizure -- misstatement by officers in affidavit did
     not invalidate warrant. -- Although a search warrant may not
     have been necessary in this case because the police officers
     initially viewed the contents of the package at the invitation
     of a private actor, the supreme court concluded that, even if
     a warrant was necessary, the misstatement by the officers in
     the affidavit that they had received a call from a delivery-
     service supervisor declaring that he had a package "addressed
     to a former employee" did not invalidate the warrant; to
     prevail, appellant was required to show by a preponderance of
     the evidence that the false statement was made knowingly and
     intentionally or in reckless disregard of the truth and that
     the false statement was necessary to a finding of probable
     cause; the trial judge found that, while the statement may
     have been a mistake, there was no evidence that a falsehood
     was perpetrated knowingly and intentionally or in reckless
     disregard of the truth.

9.   Evidence -- motion to suppress -- finding not reversed unless
     against preponderance of evidence. -- The supreme court will
     not reverse the trial judge's finding on a motion to suppress
     unless it is clearly against the preponderance of the
     evidence; the evidence at the suppression hearing belied the
     notion that anything other than a careless mistake had been
     made by the officers in the affidavit; the evidence indicated
     not only that there was no knowing, intentional, or reckless
     misconduct, but that the misstatement in the affidavit was not
     the basis for a finding of probable cause.

10.  Evidence -- relevance -- trial judge's ruling will not be
     disturbed absent abuse of discretion. -- A trial judge's
     ruling on relevancy issues will not be disturbed absent an
     abuse of discretion; although it was true that the weight of
     the drugs created a presumption of intent to deliver, because
     the presumption was not conclusive, the State could offer
     additional evidence on the issue of intent to deliver.

11.  Criminal law -- when entrapment occurs. -- Entrapment occurs
     when a law-enforcement officer or any person acting in
     cooperation with him induces the commission of an offense by
     using persuasion or other means likely to cause normally law-
     abiding persons to commit the offense; conduct merely
     affording the person an opportunity to commit an offense does
     not constitute entrapment.

12.  Jury -- no error to refuse instruction unsupported by
     evidence. -- If there is no evidence to support a jury
     instruction, it is not error to refuse it.

13.  Motions -- mistrial -- drastic remedy -- trial court's denial
     upheld. -- A mistrial is a drastic remedy that should be
     resorted to only when there has been an error so prejudicial
     that justice cannot be served by continuing the trial; where
     remarks by the prosecutor occurred during the sentencing
     phase, the jury did not hear the remarks emanating from the
     bench conference, the jury had been instructed that remarks of
     counsel are not evidence, and no admonition was requested, the
     supreme court upheld the trial court's denial of appellant's
     mistrial motions.


     Appeal from Independence Circuit Court; John Dan Kemp, Judge;
affirmed.
     Larry Dean Kissee, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Bradley D. Jesson, Chief Justice.
     On March 10, 1995, the appellant was arrested when he picked
up a package at the UPS office in Batesville.  The package
contained a controlled substance, methamphetamine.  Officers
searched the appellant at the scene and also discovered
methamphetamine in the watch pocket of his jeans.  As a result, the
appellant was charged with two counts of possession of a controlled
substance with intent to deliver.  He was convicted of one count,
for which he received a sentence of twenty-five years.  On the
other count, he was convicted of the lesser offense of possession,
for which he received a sentence of seven years.  The trial judge
ordered the sentences to run consecutively.  We affirm the
convictions. 
     Heritage raises seven issues on appeal.  Included among them
is a challenge to the sufficiency of the evidence to support his
conviction for possession with intent to deliver.  That issue
requires a detailed recitation of the facts, which are as follows. 
Early on March 10, 1995, UPS employee Jessica Clayton drove from
Batesville to Little Rock to pick up the day's packages.  Among the
packages she retrieved was one bearing the following address: 
Justin Heritage, 25 Triangle Drive, Trailer No. 26, Batesville,
Arkansas.  Justin Heritage was the appellant's fourteen-year-old
son.  The package had been shipped with the priority status of
"next day air" from Downey, California.  Ms. Clayton took special
notice of the package because the appellant was a former employee
of UPS.  She knew that the appellant had moved from the Triangle
Drive address.  Further, since she drove by that address every day
on her way to and from work, she was aware that Trailer No. 26 was
unoccupied.  Knowing the address to be improper, and knowing that
delivery of the package was guaranteed by 10:30 a.m., Ms. Clayton,
in accordance with UPS company policy, opened the package to locate
information which would lead to a correct address.  Inside, she
found a bag of rocks, some rags, and some fabric-softener sheets. 
The package also emitted a foul odor.  Suspicious, she brought the
matter to the attention of the Little Rock supervisor.  He
suggested that she show the package to the supervisor in
Batesville. 
     Upon her return to Batesville, Ms. Clayton immediately showed
the package to her boss, Randy McFadden.  McFadden examined the
contents of the package and found, in addition to what Ms. Clayton
had seen, a plastic bag with the notation "1/4 pound" on it. 
Inside the bag was a brownish-yellow rock.  McFadden called the
sheriff's office and told them he had a package addressed to a
former employee and that the package might contain drugs.  Two
narcotics investigators, Darren Plaster and Roger Tate, arrived at
the UPS office shortly thereafter, at about 9:30 a.m. 
Approximately the same time, Jimmy Heritage arrived at the UPS
office to pick up the package.  The evidence is unclear as to
whether Heritage arrived at the office of his own accord or whether
he had been called and told that the package was there.
     Once the officers found out that Heritage was on the scene,
they went into an office so as not to alert him to their presence. 
(Heritage had taken some notice of the officers but, since they
arrived in plain clothes and an unmarked vehicle, there is no way
of knowing whether Heritage thought they were policemen.)  The
officers waited while McFadden approached Heritage with the
package, which had been resealed, and a signature clipboard. 
According to McFadden, he stood close enough to Heritage so that
Heritage could see the address on the package.  The two became
involved in a conversation about a gun Heritage wanted to trade. 
Heritage went out to his truck, purportedly to retrieve the gun. 
Instead, he drove away.
     McFadden returned to his office and told the officers what had
transpired.  The package was then reopened and a field test
performed on the material inside.  It tested positive for
amphetamines.  The officers decided to call for reinforcements and
to set up surveillance in anticipation of Heritage returning to
pick up the package.  The next activity occurred around 11:00 a.m. 
Heritage called McFadden and asked him to deliver the package to
the trailer listed on the address label.  McFadden, who was also
aware that Heritage had moved and that the trailer was vacant,
declined to do so.  Finally, near 5:00 p.m., Heritage returned to
the UPS office.  He told the counter clerk that he "came back to
get my package, I mean Justin's."  He signed for the package and
carried it outside.  At that point, he was arrested and handcuffed. 
While handcuffed, Heritage tried to reach into his right front
pocket.  The pocket was searched and a bag, which later turned out
to contain 1.011 grams of 92.3% methamphetamine, was found.  The
substance in the UPS package was sent to the crime lab.  It was
revealed to be 102.92 grams of 78.3% methamphetamine.
                Sufficiency of the Evidence      
     Heritage argues that there is no substantial evidence that he
knowingly possessed the drugs in the UPS package with the intent to
deliver them.  Substantial evidence is that which is forceful
enough to compel a conclusion one way or another and which goes
beyond speculation or conjecture.  Misskelley v. State, 323 Ark.
449, 915 S.W.2d 702 (1996).  In determining whether there is
substantial evidence to support a conviction, we review the
evidence in the light most favorable to the appellee and consider
only that evidence which supports the verdict.  Moore v. State, 315
Ark. 131, 864 S.W.2d 863 (1993).  There is ample evidence in this
case of intent to deliver.  Possession of amphetamines in an amount
exceeding two hundred milligrams creates a rebuttable presumption
of intent to deliver, Ark. Code Ann.  5-64-401(d) (Repl. 1993).  
The presumption amounts to substantial evidence of intent to
deliver.  Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). 
However, Heritage's argument is primarily directed to the
"possession" element of the crime.  He contends that, since the
package was not addressed to him and he did nothing more than
retrieve it from the UPS office, he did not knowingly possess what
was inside the package.  The proof, when viewed in a light most
favorable to the State, supports the inference that the appellant
knew what the package contained.  The evidence was susceptible of
the interpretation that the appellant showed up at the UPS office
on the morning of March 10 without having been contacted by UPS,
leading to the conclusion that he was expecting the package. 
Further, the evidence showed that, on his first visit to UPS, he
left unexplainedly without having picked the package up.  He
attempted to have McFadden deliver the package to an unoccupied
residence even though he knew, as a former employee of twenty-three
years, that such a request was against company policy.  He picked
up the package and signed for it, stating he "came back to get my
package, I mean Justin's."  He was in personal possession of
methamphetamines in his own pocket.  Finally, the jury might have
found it implausible that a person in California might send a drug
shipment, via UPS, to a fourteen-year-old boy.  
     A person's state of mind is seldom capable of proof by direct
evidence.  It must be ascertained from the circumstances
surrounding the event.  Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996).  The circumstantial evidence in this case supports the
jury's verdict. 
                    Motion to Sever Offenses
     For his second argument, Heritage claims that the trial court
should have severed the count relating to the drugs found in the
UPS package from the count relating to the drugs found in his
pocket.  The decision on whether to grant severance is within the
trial court's discretion.  Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996).  While offenses may not be joined solely on the
basis that they are of the same or similar character, Id., they may
be joined if they are part of a single scheme or plan.  See
A.R.Cr.P. 22.2.  The appellant relies on Teas v. State, 266 Ark.
572, 587 S.W.2d 28 (1979) to argue that his offenses were not part
of a single scheme or plan.  In Teas, the appellant sold $20.00
worth of marijuana to a man on December 5.  He sold two morphine
pills to the same man on December 14.  We held that the trial court
should have severed the offenses.  The case at hand is readily
distinguishable.  The offenses in this case did not occur nine days
apart; they were virtually simultaneous.  The appellant was in
possession of two distinct amounts of the same type of controlled
substance at the same time and at the same location.  Each
substance was possessed in a weight sufficient to raise the
presumption of intent to deliver.  We find no abuse of discretion
by the trial court in refusing to sever the offenses.
                       Search and Seizure
     The appellant argues that a search warrant used to effect a
search of the UPS package was invalid.  He also claims that the
warrantless search of his person was without reasonable cause. 
Below, he filed a motion to suppress the evidence found as a result
of each search.  The motion was denied by the trial court. 
     We address the warrantless search first.  An officer who makes
a lawful arrest of a suspect is authorized to search the person of
the arrestee to look not only for weapons but for the fruits and
instrumentalities of the crime.  Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991).  See also A.R.Cr.P. 12.1.  The appellant claims
that this is not a "search incidental to arrest" because his arrest
was without reasonable cause.  Reasonable cause exists where the
facts and circumstances within the officers' knowledge and of which
they have reasonably trustworthy information are sufficient in
themselves to warrant a person of reasonable caution to conclude
that an offense has been or is being committed.  Gaylor v. State,
284 Ark. 215, 681 S.W.2d 348 (1984).  At the time the appellant was
arrested, he was in possession of a package which the officers knew
to contain illegal drugs.  Even though the package was addressed to
the appellant's son, the appellant had shown an interest in the
package sufficient to lead authorities to conclude he was aware of
its contents.  Therefore, reasonable cause to arrest the appellant
existed and the warrantless search of his person was justified.
     Our review of the validity of the search warrant requires the
recitation of some additional facts.  After Heritage was arrested,
officers Plaster and Tate began preparation of an affidavit for the
purpose of securing a warrant to search the UPS package.  The front
page of the affidavit noted that the package was addressed to
Justin Heritage.  However, in that part of the affidavit containing
the facts establishing grounds for issuance of a warrant, the
officers stated that they had received a call from Randy McFadden
declaring that he had a package "addressed to a former employee." 
The appellant contends that this constitutes a misstatement to the
issuing magistrate, such that the warrant should be invalidated. 
We disagree.  We are not completely convinced that a search warrant
was necessary in this case since the officers initially viewed the
contents of the package at the invitation of a private actor.  See
United States v. Jacobsen, 466 U.S. 109 (1984).  However, even if
a warrant was necessary, the misstatement contained in the
affidavit does not invalidate the warrant.  To prevail, the
appellant was required to show by a preponderance of the evidence
that, one, the false statement was made knowingly and intentionally
or in reckless disregard of the truth, and, two, the false
statement was necessary to a finding of probable cause.  Franks v.
Delaware, 438 U.S. 154 (1978).  The trial judge found that, while
the statement may have been a mistake, there was no evidence that
a falsehood was perpetrated knowingly and intentionally or in
reckless disregard of the truth.  We will not reverse the trial
judge's finding on a motion to suppress unless it is clearly
against the preponderance of the evidence.  Magar v. State, 308
Ark. 380, 826 S.W.2d 221 (1992).  The evidence at the suppression
hearing belied the notion that anything other than a careless
mistake had been made by the officers.  The officers noted in their
cover sheet and in the warrant they prepared that the package was
addressed to Justin Heritage.  The issuing magistrate, Judge Roy
Thomas, testified that he was aware that the package was addressed
to Justin and that Justin was the appellant's son.  This evidence
indicates not only that there was no knowing, intentional or
reckless misconduct, but that the misstatement in the affidavit was
not the basis for a finding of probable cause.
                        Evidence at Trial
     During the testimony of Officer Alan Cockerill, the prosecutor
asked the officer "the normal purity level that you find as a
narcotics officer on the streets of Batesville, Arkansas."  The
officer answered, twenty to forty-five percent.  Later, the officer
was asked the market value of the drugs involved in this case.  He
answered, $100.00 to $120.00 for the drugs found in the appellant's
pocket and $2,000.00 to $3,000.00 for the drugs in the UPS package. 
The appellant argued that information was irrelevant because the
weight of the drugs, the only necessary consideration, had already
been established.  The trial judge overruled the objection.  
     A trial judge's ruling on relevancy issues will not be
disturbed absent an abuse of discretion.  Sasser v. State, 321 Ark.
438, 902 S.W.2d 773 (1995).  It is true that the weight of the
drugs creates a presumption of intent to deliver.  However, since
the presumption is not conclusive, the State may offer additional
evidence on the issue of intent to deliver.  See also Hoback v.
State, 286 Ark. 153, 689 S.W.2d 569 (1985). 
                    Instruction on Entrapment
     The appellant proffered instructions on the affirmative
defense of entrapment.  Entrapment occurs when a law-enforcement
officer or any person acting in cooperation with him induces the
commission of an offense by using persuasion or other means likely
to cause normally law-abiding persons to commit the offense. 
Conduct merely affording the person an opportunity to commit an
offense does not constitute entrapment.  Ark. Code Ann.  5-2-209
(Repl. 1993).  Our law has been that, if a defendant denies
committing an offense, he cannot assert that he was entrapped into
committing the offense.  Morris v. State, 300 Ark. 340, 779 S.W.2d 526 (1989).  The appellant asks us to carve out an exception to
that rule for situations in which the State's case-in-chief
contains sufficient evidence of entrapment.  See Mathews v. United
States, 485 U.S. 58 (1988).  We do not deem it necessary to reach
that issue because the evidence in this case doesn't merit an
entrapment instruction.  While officers and UPS officials provided
the appellant with the opportunity to commit the crime, there is no
showing that he was induced or persuaded to commit the crime.  If
there is no evidence to support an instruction, it is not error to
refuse it.  Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992). 
                   Remarks in Closing Argument
     During closing argument in the sentencing phase of the trial,
the appellant's counsel made the following statement:

     If you send Mr. Heritage to the penitentiary, you all
     know what the situation is in the penitentiary right now. 
     They may have to turn a murderer or a rapist out ---


     The prosecutor, without making a formal objection, stated that
the argument was "improper" and "unfounded" and "a false
statement."  Counsel were asked to approach the bench.  During
their argument at the bench, the appellant objected on the grounds
that the prosecutor was raising his voice, allowing the jury to
hear his remarks.  The appellant asked for a mistrial.  The trial
court polled the jury, asking if they had heard any of the bench
conference.  They had not, and the motion was denied.  The court
also denied a mistrial motion with regard to the prosecutor's
remark that defense counsel had made a false statement.
     A mistrial is a drastic remedy which should be resorted to
only when there has been an error so prejudicial that justice
cannot be served by continuing the trial.  Kemp v. State, 324 Ark.
178, 919 S.W.2d 943 (1996).  Considering that, in this case, the
remarks occurred during the sentencing phase, the jury did not hear
the remarks emanating from the bench conference, the jury had been
instructed that remarks of counsel are not evidence, and no
admonition was requested, we uphold the trial court's denial of the
mistrial motions.
     Affirmed.