Hyde v. State

William Andrew HYDE v. STATE of Arkansas

CA CR 97-314                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
               Opinion delivered October 22, 1997


1.   Drugs & narcotics -- drug paraphernalia -- factors considered.
     -- According to Ark. Code Ann.  5-64-101 (Repl. 1996), when
     determining if an object is drug paraphernalia, a court should
     consider, among other factors, statements by the owner
     concerning its use, prior convictions of the owner relating to
     any controlled substance, and direct or circumstantial
     evidence of the intent to deliver the paraphernalia for an
     illegal use.

2.   Criminal procedure -- revocation hearing -- burden of proof --
     factors on review. -- In a hearing to revoke, the burden is
     upon the State to prove a violation of a condition of the
     suspended sentence by a preponderance of the evidence; on
     appellate review, the trial court's findings are upheld unless
     they are clearly against a preponderance of the evidence;
     since a determination of the preponderance of the evidence
     turns on questions of credibility and weight to given
     testimony, the appellate court defers to the trial court's
     superior position.

3.   Criminal procedure -- finding that appellant possessed
     requisite intent supported by preponderance of evidence --
     evidence sufficient to support revocation. -- Appellant's
     reliance on Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459
     (1991) was misplaced; appellant was not tried for possession
     of drug paraphernalia as was the case in Crutchfield; the
     standard for review of a revocation of probation or of a
     suspended sentence, which was the action taken here, was
     preponderance of the evidence, not beyond a reasonable doubt;
     here, the preponderance of the evidence clearly supported a
     finding that appellant possessed the requisite intent to use
     drugs; appellant also stated that he made some of the pipes
     for other people, which is a criminal offense; the trial court
     properly considered appellant's previous conviction for
     delivery of marijuana; the intended use of the pipes and water
     bongs was clear without further explanation as such items are
     specifically classified as drug paraphernalia by statute;
     there was sufficient evidence to support the revocation of
     appellant's suspended sentence.


     Appeal from Sebastian Circuit Court; Don R. Langston, Judge;
affirmed.
     James R. Marschewski, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     Andree Layton Roaf, Judge.
     Appellant William Hyde pled guilty to and was convicted of
delivery of marijuana in August 1991.  The trial court withheld
imposition of sentence for five years conditioned on Hydeþs good
behavior and other conditions.  The State filed a petition to
revoke in May 1996, based on Hydeþs possession of drug
paraphernalia.  The trial court granted the petition and sentenced
Hyde to ten yearsþ imprisonment with eight years suspended.  Hydeþs
sole issue on appeal is that there was insufficient evidence to
support the revocation.  We affirm.  
     At the hearing on the Stateþs petition to revoke, Officers
Paul Smith and David Slaughter testified that they had received
information regarding Hyde's possession and use of controlled
substances at his home.  The officers went to the house on May 8,
1996, approached Hyde on the front porch, and told him of the
allegations made against him.  
     The officers testified that Hyde told them that he had some
marijuana at his home for "personal use" and that he used it for
his back problems.  He also admitted having drug paraphernalia at
the house.  The officers then asked if they could search the house
and testified that they informed Hyde that he could refuse the
search.  According to the officers, Hyde consented to the search
and even showed them various drug paraphernalia in the residence.
Officer Slaughter testified that he also found a tray that
contained some marijuana seeds and a small amount of green
vegetable material.  Near the tray was a pair of hemostats, some
burnt ends, and a pipe with burnt residue in the bowl.  However, no
laboratory analysis of any of the material was introduced to prove
that the substances were marijuana or other controlled substance.
     Although Hyde claimed that he told the officers that the pipes
were part of a collection, the officers denied being so told. 
Officer Smith testified that Hyde had numerous pipes and a þwater
bong,þ and that Hyde told him that the reason he had so many pipes
was that he made them for himself and for his friends for smoking
marijuana.  In fact, the officers also arrested a man who came to
Hydeþs house during the search, when marijuana was found on him in
a pat-down search.
     For the defense, Hyde's father testified that Hyde had a pipe
collection, including Indian ceremonial pipes.  Hydeþs wife, who
was present at the time of the search, also testified about Hyde's
pipe collection.  She testified that there was not any marijuana in
the house on the day of the search, and that the substance on the
tray was herbal material that Hyde used for his back pain. 
Finally, Hyde testified on his own behalf and stated that he had
thirty-four pipes and seven water bongs.  However, he denied that
any of the substances found by the officers were marijuana, and
stated that there was no marijuana at the house.  He testified that
he told the police about his pipe collection and that the officers
told him they were not interested in his pipes, only marijuana.  He
stated that, when the police did not find any marijuana, they got
upset and decided to take some of the pipes and charge him with
possession of paraphernalia instead.  He testified that Officer
Smith told him that it was okay that he had the pipes as long as he
did not have marijuana in the house.  He testified that the
vegetable substance found was a combination of herbs he had
purchased at a store.

     Hydeþs sole point on appeal is that the trial court's
revocation was clearly against the preponderance of the evidence. 
He argues that there was insufficient evidence on which to revoke
his suspended imposition of sentence, because there was no evidence
that he intended to use the items seized to smoke or otherwise
ingest marijuana.  He argues that mere possession of the pipes was
not illegal, and that he had to be shown to have intended to use
the pipes in an illegal manner.  However, his arguments are without
merit.
     Arkansas Code Annotated  5-64-403(c)(1) (Repl. 1996) provides
that it is unlawful to possess drug paraphernalia with the intent
to use it to ingest or inhale a controlled substance.  It is also
unlawful to possess paraphernalia with the intent to deliver it
under circumstances where one should reasonably know that it will
be used to inhale a controlled substance.  Ark. Code Ann.  5-64-
403(c)(2) (Repl. 1996).  According to Ark. Code Ann.  5-64-101
(Repl. 1996), when determining if an object is drug paraphernalia,
a court should consider, among other factors, statements by the
owner concerning its use, prior convictions of the owner relating
to any controlled substance, and direct or circumstantial evidence
of the intent to deliver the paraphernalia for an illegal use.
     In a hearing to revoke, the burden is upon the State to prove
a violation of a condition of the suspended sentence by a
preponderance of the evidence; on appellate review, the trial
court's findings are upheld unless they are clearly against a
preponderance of the evidence.  Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992); Russell v. State, 25 Ark. App. 181, 753 S.W.2d 298 (1988).  Since a determination of the preponderance of the
evidence turns on questions of credibility and weight to given
testimony, this court defers to the trial court's superior
position. Lemons, supra.
     Hyde relies on Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991), to support his argument for reversal.  In Crutchfield,
the supreme court reversed and dismissed a conviction for
possession of drug paraphernalia, because there was no proof that
a four-inch piece of automobile radio antenna alleged to be drug
paraphernalia was intended for drug use, no proof of residue on the
paraphernalia, and no drugs found on the defendant.  The antenna
was found on Crutchfield in a pat-down search when he was arrested
for armed robbery.  The supreme court said that the lack of any
link to drug use left the jury to speculate that the defendant was
using the antenna for a prohibited purpose.  Hyde argues that his
case is analogous because there was no crime lab report showing
marijuana residue on the paraphernalia, or that the green vegetable
material found at his house was marijuana.  He contends that the
court was left "to mere speculation as to whether the items seized
in the home were in fact used for the smoking of marijuana or were
in fact used for smoking herbs."   
     However, Hydeþs reliance on Crutchfield is misplaced for
several reasons.  First, the preponderance of the evidence clearly
supports a finding that Hyde possessed the requisite intent.  The
arresting officers testified that Hyde told them that he had some
"personal use" marijuana at the house and that he smoked it for
pain in his back.  Moreover, Hyde stated that he made some of the
pipes for other people, which is also a criminal offense.  The
trial court was also entitled to consider Hyde's previous
conviction for delivery of marijuana.  Second, unlike Crutchfield,
Hyde was not tried for possession of drug paraphernalia; the
standard for review of a revocation of probation or of a suspended
sentence is preponderance of the evidence, not beyond a reasonable
doubt.  Third, as pointed out by the State, in Crutchfield, the
supreme court, upon rehearing, found sufficient evidence to uphold
the conviction for possession of drug paraphernalia if the Stateþs
expert testimony regarding the intended use of the antenna had not
been excluded, and remanded the case for retrial.  See Crutchfield
v. State, supra, supp. op. on rehþg, 306 Ark. 104, 816 S.W.2d 884
(1991).  Here, the intended use of the pipes and water bongs,
unlike a piece of antenna, needs no further explanation.  Such
items are specifically classified as drug paraphernalia by statute. 
See Ark. Code Ann.  5-64-101(v)(12)(A), (B), and (L) (Repl. 1996).
     Affirmed.
     Bird and Rogers, agree.