Eric Lydell Caffey v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION IV

ERIC LYDELL CAFFEY,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-628

MAY 2, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. CR97-988, 98-2188, 98-3417,

HON. DAVID BOGARD, JUDGE

AFFIRMED

Eric Lydell Caffey was arrested and subsequently charged with theft by receiving after officers determined that he was driving a stolen car. Following a separate incident that began when officers observed him throw an item to the ground, he was charged with two counts of terroristic threatening and with one count each of possession of a controlled substance, fleeing, and resisting arrest. The cases were consolidated for trial before the bench. Caffey was found guilty on all counts, with the misdemeanor crimes of fleeing and resisting arrest merged into the felony offenses. He was sentenced to the Arkansas Department of Correction to serve consecutive sentences of ten years on each felony count, for a total sentence of forty years.

Caffey now appeals the convictions of theft by receiving and possession of a controlled substance. He does not appeal the convictions of terroristic threatening. He contends (1) that the evidence was insufficient to sustain the conviction for theft byreceiving, (2) that the

evidence was insufficient to sustain his conviction for possession of a controlled substance, and (3) that the trial court erred in denying his motion to suppress. We affirm.

1)Whether the evidence was insufficient to sustain the conviction for theft by receiving

A motion for directed verdict is a challenge to the sufficiency of the evidence. On appellate review of the sufficiency of the evidence, we seek to determine whether the verdict is supported by substantial evidence. Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). Substantial evidence, whether direct or circumstantial, must be of "sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other." Id. In determining whether the evidence was substantial we consider only the evidence that supports the conviction without weighing it against other evidence favorable to the accused. Id.

A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen. Ark. Code Ann. § 5-36-106(a) (Repl. 1997). The unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he knows or believes that the property was stolen. Ark. Code Ann. § 5-36-106(c)(Repl. 1997).

The State presented evidence at trial regarding the events that led to appellant's arrest for possession of stolen property. Mary Fisher testified that on the morning of January 28,1997, she went to work in Hot Springs and parked her 1984 Chevrolet Monte Carlo in the bank parking lot. When she returned, her car was gone. She reported the theft to her insurance company and to the local police department. Fisher described her car, which she had bought new, as a burgundy two-door in good condition, with a vehicle identification number (VIN) of 1GIAZ37H1ER172427.

Officer Jay Plunkett of the Little Rock Police Department testified that on March 8, 1997, he observed a brownish-red 1982 Monte Carlo, driven by Caffey, turning northbound from 30th Street onto John Barrow Road without using a turn signal. Plunkett followed the vehicle and ran a license check, which returned with the tag registered to a 1983 Cadillac Seville, four-door, registered to Dan Caffey. Plunkett made a traffic stop and checked the VIN, which was 1GIAZ37J7CB106991. Plunkett impounded the car and issued Caffey a citation for a fictitious state license, no insurance, suspended driver's license, and no left turn signal. A VIN check did not show the car to be stolen.

Sergeant Eric Holloway of the Pulaski County Sheriff's Office testified that on March 27, 1997, he stopped an 80's model Monte Carlo for having no license plate. The driver, Jerome May, explained that he had just bought the car from someone in Little Rock. Holloway was suspicious that the car was stolen because the VIN "was askew." It was fastened only on one side and looked as if it had been burned. Holloway could find nothing to suggest that the car had actually been stolen, so he let May go. May called, however, the next day from his home to report that the vehicle had been stolen from him.

Holloway next saw the car on April 10, 1997, in front of May's residence, which isin Holloway's routine patrol area. The Monte Carlo and a Cadillac were illegally blocking a lane of traffic in the roadway. Holloway called Investigator Jeff Scott to inspect the vehicles.

Scott testified that there are many places within a car where a VIN is located, and that confidential numbers are used to identify vehicles that have been tampered with. Scott's investigation of the Monte Carlo and the Cadillac showed tampering with both VINs. At that point, the cars were impounded for identification. Regarding the Monte Carlo, Scott's initial inspection found the VIN of 1GIAZ37J7CB106991, but further examination determined that the correct VIN was the one given by owner Fisher and that the "actual car was an '84, not an '82." The Cadillac likewise did not have the correct VIN. Scott's investigation led to Caffey as a suspect because he had obtained duplicate titles in the fictitious VINs in April 1997, shortly after the vehicles were stolen.

On appeal, Caffey argues that the State failed to show that he had any reason to know that the Monte Carlo was stolen, and he argues that it is speculative at best to conclude so. He notes that two police officers could not determine that the car was stolen, and that Investigator Scott made such a determination only after examining hidden VINs in locations unknown to the general public.

Caffey's argument fails in light of the aforementioned statutory presumption created by Ark. Code Ann. § 5-36-106(c): unexplained possession of recently stolen property gives rise to a presumption that a person knows or believes that the property was stolen. The unexplained possession of recently stolen property is sufficient to sustain a conviction fortheft by receiving, and the reasonableness of the appellant's explanation is a matter for the fact finder to assess. Hall v. State, 299 Ark. 209, 772 S.W.2d 317 (1989). Because Caffey had no explanation for why he was in possession of Fisher's car, we affirm the conviction for theft by receiving.

2) Whether the evidence was insufficient to sustain the conviction for possession of a controlled substance

Here, Officers Cole Deering and Matt Grace of the North Little Rock Police Department testified that they previously had been patrolmen assigned to the community-oriented policing program. On January 16, 1998, they were in their marked patrol car when they saw Caffey walking on Olive Street, which was in a high drug-traffic area. Caffey saw the officers and quickly threw a small, off-white object to the ground near a tree. Deering thought the object to be cocaine. The officers had come into contact with Caffey before for drug-related offenses, and on one occasion Deering had heard him tell another officer, "You know I sell drugs." The officers, who were in uniform, pulled their patrol car in front of him, got out, and asked him to come over. Caffey "took off" running; Deering gave chase through two houses, into an alley, over a four-foot chain-link fence, and back toward Olive Street. Caffey slipped on the ground, and Grace was able to catch him. After handcuffing Caffey, Grace returned to the tree where the object had been thrown, and he retrieved what was later identified as crack cocaine. In addition to the testimony of the officers, the certified lab report, the crack cocaine, and photographs of the object retrieved were admitted into evidence.

Under the previous point, we have set forth the standard of review regarding thesufficiency of the evidence. Additionally, we note that flight to avoid arrest or trial is admissible as a circumstance in corroboration of evidence tending to establish guilt. Mason v. State, 285 Ark. 479, 688 S.W.2d 299 (1985). Here, we hold that the testimony of Officers Deering and Grace, the photographs, and the laboratory reports constitute substantial evidence to support the conviction for possession of a controlled substance.

3) Whether the trial court erred in denying appellant's motion to suppress evidence obtained as a result of an invalid stop1

When reviewing a trial court's ruling on a motion to suppress, the appellate court makes an independent determination based on the totality of the circumstances and reverses only if the trial court's ruling is clearly against the preponderance of the evidence. Stewart v. State, 42 Ark. App. 28, 853 S.W.2d 286 (1993). An officer may justifiably restrain an individual for a short period of time if he has an "articulable suspicion" that the person has committed or is about to commit a crime. Id.

Appellant contends that he was seized when Officers Deering and Grace left their car and ordered him to stop, that the officers based the seizure on something less than a reasonable suspicion, and that, therefore, the seizure was invalid. We do not agree.

The chasing of a suspect who disobeyed police orders to stop does not constitute a seizure within the meaning of the Fourth Amendment. Id. (citing California v. Hodari D., 499 U.S. 621 (1991)). Officers in an area known for its drugs sales saw Stewart holding aplastic bag that appeared to contain Domino matchboxes, which the officers knew were commonly used for storing narcotics. The officers ordered Stewart to stop, during an ensuing chase he left the bag in an apartment, and the substance in the matchboxes proved to be crack cocaine. We held that the denial of his motion to suppress was proper because the defendant had not been seized at the time he abandoned the cocaine. We also held that Stewart had abandoned any Fourth Amendment rights when he discarded the plastic bag, and that it was unnecessary to decide whether there was reasonable suspicion for the officers to stop the defendant.

Here, Caffey was known to be a drug dealer, was seen by officers in a high-crime area, and threw down an off-white substance that police officers believed to be cocaine. When the officers asked him to come to them, he ran. At that point, Caffey had abandoned the drugs, and therefore the drugs were not seized within the meaning of the Fourth Amendment. Officers Deering and Grace were justified in stopping him and in restraining him while they retrieved the object that they suspected was connected with criminal activity. Because there was no seizure of evidence, we do not consider whether there was reasonable suspicion to stop him. Id.

Affirmed.

Stroud, C.J., and Robbins, J., agrees.

1 In Caffey's brief, this point is presented as involving a "traffic stop," but his argument focuses only on "a stop" and the abstract shows no evidence of a "traffic stop."