Larry Handy v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS ANDREE LAYTON ROAF, JUDGE

DIVISION II

LARRY HANDY

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR00-942

JUNE 20, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

CR99-3939

HON. JOHN W. LANGSTON, JUDGE

AFFIRMED

Larry Handy was convicted in a Pulaski County jury trial of possession of drug paraphernalia and misdemeanor possession of a defaced firearm, for which he was sentenced as an habitual offender to twenty years in the Arkansas Department of Correction. On appeal, Handy challenges the sufficiency of the evidence on the paraphernalia charge and also argues that the trial court erred in allowing the State to amend the information after it rested its case to add the allegation that the paraphernalia charge was based on his possessing a pipe with crack cocaine residue in addition to the syringe that had been alleged earlier. Weaffirm.

At Handy's trial, Sergeant David Doty, a narcotics detective with the Pulaski County Sheriff's Department, testified that he and other members of the department executed a search warrant at a residence on West 14th Street. He stated that after he secured the kitchen area, he opened a closed bedroom door and discovered Handy lying on a bed. He handcuffed Handy and when he took him off the bed, he discovered a substance that he believed to be crack cocaine lying between Handy's legs. Between the box springs and the mattress, within easy reach of Handy, he discovered two handguns and a sock containing bullets. One of the handguns did not have a legible serial number. Within a foot of the handguns, he found a "smoking device." In the kitchen area, he discovered a syringe. Another substance that he suspected was crack cocaine was found on the living room floor. On cross-examination, Sgt. Doty stated that when the police entered the house with a battering ram, three other individuals were found in the residence: Isaac Taylor and Dexter Booth were found in the living room, and Darwin Bowers was found in the kitchen. Sgt. Doty testified that he observed Bowers "toss" a clear plastic bag that appeared to have residue on it, however, the residue field-tested negative for narcotics. According to Sgt. Doty, the bedroom in which Handy was found was located approximately twelve feet from the kitchen.

Lieutenant Kirk Lane of the Pulaski County Sheriff's Department testified that he Mirandized Handy and that Handy admitted that he lived in the residence and accepted responsibility for what went on in the house. However, Lt. Lane admitted that Handy deniedhaving any knowledge of any illegal activity going on in the house including the presence of cocaine.

State Crime Lab forensic chemist Kim Brown testified that she found cocaine residue on the smoking device and that two off-white rock-like substances that were seized in the raid tested positive for cocaine. However, she found no residue on the syringe. This physical evidence that she tested was admitted without objection. A lab report prepared by Ronald J. Andrejack, a firearms and toolmarks expert, stating that he was able to retrieve the obstructed serial number from one of the firearms recovered under the mattress, was also admitted without objection. The State then rested.

Handy argued in his directed verdict motion that the State had failed to prove that he possessed the syringe because the house was occupied by five people and it was found in the kitchen, which was twelve feet away from the room that he occupied. He also argued that the State failed to prove that the syringe was paraphernalia because it did not contain any residue. The State asserted that it had proven constructive possession and then moved to amend the information to "conform to the proof" by adding the allegation that the possession of drug paraphernalia was based on Handy's possession of the crack pipe that was found under his mattress in addition to the syringe that was found in the kitchen. Handy's trial counsel initially agreed with the trial judge that the amendment did not change the "nature or degree" of the charge, but asserted that the amendment would prejudice his client because the "focus" of the defense was on the syringe, which was located in the kitchen where three other individuals were found. However, Handy's trial counsel admitted that he was awarethat the pipe had been found at the time of Handy's arrest and had been analyzed by the Crime Lab. Nonetheless, he argued that amending the information "would simply add to the defense of disproving a count that we believe that was not going to be coming forward considering the State's felony information." While admitting that it would not have taken additional time to prepare to defend a count involving the pipe, he contended that it was unfair to allow the amendment because it added "another element to show to the jury that Defendant had no knowledge of" and that it would "add to the argument of the Defense" because to that point it had been "rather clear" that only the syringe was the alleged paraphernalia. The trial judge granted the State's motion to amend the information.

Handy did not call any witnesses and renewed his directed verdict motion, arguing that the State failed to prove that he possessed "the cocaine, drug paraphernalia, and defaced firearm that was allegedly found underneath the bed" because it failed to put on enough proof to establish that he had "exclusive dominion and control" over the contraband considering the number of people in the house, the fact that there was no proof that it was his bedroom, or how long he had been lying on the bed, and "in regards to the syringe and drug paraphernalia that was found in the kitchen," he was a minimum of twelve feet away from where it was found and there was another individual in the kitchen. The trial judge denied the motion and the charges were submitted to the jury. The jury was unable to reach verdicts on the charges of possession of a controlled substance and simultaneous possession of drugs and firearms; however, it found Handy guilty of possession of drug paraphernalia and possession of a defaced weapon.

Handy first argues that the State failed to introduce substantial evidence that he was guilty of possession of drug paraphernalia with intent to use it to introduce a controlled substance into the human body. Handy concedes that a syringe is listed as drug paraphernalia in Ark. Code Ann. § 5-64-101(v)(11) (Repl. 1997); however he asserts that the jury was not so instructed and therefore, the statute did not constitute a presumption that the syringe was paraphernalia. He asserts that the laboratory analysis showed that there was no residue on the syringe and that the State failed to prove any of the relevant drug paraphernalia factors listed in Ark. Code Ann. § 5-64-101(v)(1-14). Regarding the crack pipe, Handy concedes that the State's case regarding its classification as paraphernalia is stronger than that of the syringe in that it proved some of the paraphernalia factors, including its proximity to crack cocaine and the presence of residue on it. However, he asserts that there was no eyewitness testimony establishing that he used the pipe and no evidence that he made a statement regarding its use or that it had no legitimate use in the community. This argument is without merit.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Id. On appeal, this court views the evidence in the light most favorable to the State and sustains a judgment of conviction if there is substantial evidence to support it. Id.

Before addressing the merits, it is necessary to dispose of the State's argument thatHandy's appeal is procedurally barred by his failure to include the crack pipe in his directed-verdict motion. Handy did not call any witnesses, and he referred to the crack pipe in the directed verdict motion he made right after the State moved to amend the information. Under these circumstances, Handy did all that he needed to do to preserve this issue.

Regarding the merits, there is little doubt that the two items that Handy allegedly possessed, the syringe and the crack pipe, qualify as drug paraphernalia. Both the syringe and the crack pipe are items that are listed in the statutory definition. Ark. Code Ann. § 5-64-101(v) (Repl. 1997). Furthermore, residue was found on the pipe and the pipe was located in close proximity to a controlled substance. See id.

As to whether Handy possessed either or both of the items, we hold that there was adequate circumstantial evidence to sustain Handy's conviction for possession of the crack pipe. The pipe was found in Handy's residence, between the mattress and box springs of a bed upon which Handy was lying alone in a room with the door closed. While it is true that there was no eyewitness testimony that placed the pipe in Handy's hand, to convict one of possessing contraband, the State must only show that the defendant exercised control or dominion over it. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). Neither exclusive nor actual, physical possession is necessary to sustain a charge. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). Instead, a showing of constructive possession, which is the control or right to control contraband, is sufficient. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id. The crack pipe was immediately and exclusively accessible to Handy. Consequently, it is not necessary that the State have proved that Handy possessed the syringe to sustain his conviction on the possession of drug paraphernalia charge.

Handy also argues that the trial court erred in allowing the State, after it had rested presentation of its case-in-chief, to amend the information to allege that he committed possession of drug paraphernalia with intent to use by possessing a pipe. Handy asserts that by allowing the State to amend the information to allege that the crack pipe was also one of the items of paraphernalia that it was alleging that Handy possessed, the court doubled the State's chances of convicting him on that charge and therefore changed the nature of the charge. He contends that he was prejudiced because the State's proof that the crack pipe was paraphernalia was stronger than its proof regarding the syringe. Handy asserts that the trial court erred in concluding that the amendment did not change the nature of the charge because it gave the State an additional theory as to his guilt. This argument is without merit.

Arkansas Code Annotated § 16-85-407 (1987) provides:

(a) The prosecuting attorney or other attorney representing the state, with leave of the court, may amend an indictment as to matters of form or may file a bill of particulars.

(b) However, no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged.

(c) All amendments and bills of particulars shall be noted of record.

The State is entitled to amend an information at any time prior to the case being submittedto the jury so long as the amendment does not change the nature or degree of the offense charged or create unfair surprise. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). The nature of the offense is not changed where the original information sets out all the elements of the amended charge. Id.

Here, the elements of the amended charge remained the same; only the method of committing the crime, possessing the crack pipe, was altered. This type of amendment has been upheld in previous cases. See, e.g., Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994)(deleting the name of one of the victims from the kidnaping count); Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994)(changing the alleged method of committing rape from deviate sexual activity to sexual intercourse with a person too young to consent). Moreover, Handy's trial counsel conceded at trial that the amendment did not change the nature or the degree of the crime charged, did not claim to be surprised, and candidly told the judge that alleging that Handy possessed the crack pipe prior to trial would not have caused them additional preparation time. In short, it merely gave the State a stronger, tighter case. That is not impermissible.

Affirmed.

Baker and Bird, JJ., agree.