Mindy Garrett and David Len Garrett v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

MINDY GARRETT and DAVID LEN GARRETT

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-974

May 23, 2001

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

[E-99-2881]

HON. JOHN PLEGGE, CIRCUIT JUDGE

AFFIRMED AS TO MINDY GARRETT; REVERSED AND REMANDED AS TO DAVID LEN GARRETT.

Appellants Mindy Garrett and David Garrett were charged with 1) possession of a controlled substance, marijuana, with the intent to deliver; 2) possession of a controlled substance, methamphetamine; and 3) possession of drug paraphernalia. Appellants were found not guilty of possession of methamphetamine and possession of drug paraphernalia. Appellants were found guilty of possession of marijuana with the intent to deliver, and were each placed on probation for a period of four years. Appellant Mindy Garrett argues on appeal that the trial court's refusal to grant her motion to suppress is reversible error, and that the evidence of her intent to deliver was insufficient. We are not persuaded by her arguments and affirm on both points. Appellant David Garrett also argues that the evidence of intent to deliver a controlled substance is insufficient to support his felony conviction. We agree and reverse his conviction and remand the case for sentencing on the misdemeanor charge of simple possession of a controlled substance.

On April 10, 1999, at around 10:00 p.m., Sergeant Eric Holloway, a Pulaski County DeputySheriff, observed appellant David Garrett and his estranged wife, Mindy Garrett sitting in David's vehicle, in Wrightsville, Arkansas. The vehicle, described as a small Toyota truck, was parked on the street and its headlights were off. Sergeant Holloway drove past the truck, and as he turned around to investigate, the truck pulled out onto the highway. The officer testified that the vehicle went through a stop sign without its headlights on, but the lights were turned on when the truck got to the highway. Sergeant Holloway stopped the vehicle for illegal parking and driving without headlights. However, the vehicle came to a stop on a curve, so the officer approached the vehicle on the passenger's side to avoid traffic as a safety measure. Sergeant Holloway testified that as he approached the vehicle he detected an odor of what he believed to be alcohol and marijuana coming from the cab of the truck. As a result, he decided to require each of the occupants to present him with identification. After discovering that Mindy had a possible outstanding warrant from another county, Sgt. Holloway testified that he asked her to step out of the vehicle and talk with a backup officer who had arrived at the scene.

While speaking with David, who was still inside the truck, Sgt. Holloway observed a bag of green, leafy, vegetable material in the middle of the truck. The bag was partly covered by Mindy's purse. According to Sgt. Holloway, the bag he observed was in plain sight, leaning against the gearshift console, on the passenger side of the vehicle, and was accessible to either the driver or the passenger. When the Garretts were arrested, Sgt. Holloway searched Mindy's zippered purse. Inside the purse, the officer testified that he discovered what appeared to be methamphetamine, a plastic straw, and another bag of leafy green vegetable matter.

David and Mindy waived their right to a jury trial and were tried together at a bench trial on

March 21, 2000. At trial, the State introduced into evidence the two bags of green leafy vegetable matter seized in the incident, along with a report from the State Crime Lab identifying the green leafy vegetable matter as marijuana. The report placed the aggregate weight of the two bags at exactly 1.0 ounces. Based upon this evidence, the trial court found David and Mindy guilty of possession of marijuana with the intent to deliver. The Garretts were found not guilty of the possession of drug paraphernalia and possession of methamphetamine charges. The trial court sentenced each appellant to four years' probation and assessed each appellant a $500.00 fine and sixty hours of community service. On appeal David is represented by the public defender and Mindy is represented by private counsel. However, their appeals have been consolidated for this court's review.

First, appellant Mindy Garrett argues that the trial court's denial of her motion to suppress is clearly against the preponderance of the evidence. In her motion to suppress the evidence of marijuana seized, Mindy argued that Sgt. Holloway did not have probable cause to stop the vehicle. On appeal, Mindy argues that the stop was unreasonable under the Fourth Amendment because it was pretextual and because it was not supported by reasonable suspicion. In response, the State argues that Mindy's argument on appeal is procedurally barred because it was not raised below. The State correctly directs this court's attention to Burris v. State, 330 Ark. 66, 75, 954 S.W.2d 209, 214 (1997), for the proposition that an argument not raised in a motion to suppress or at a suppression hearing will not be considered on appeal. However, Mindy did argue the basic premise that Sgt. Holloway should not have stopped the vehicle, and while Mindy does supplement her argument on appeal, her original motion is adequate to allow us to address the probable cause associated with the initial stop of the vehicle.

In our review of the trial court's denial of Mindy's motion to suppress, we have made anindependent determination, based on the totality of the circumstance. Burris, 330 Ark. at 71, 954 S.W.2d at 212. We will not reverse the trial court unless we find that its ruling is clearly against the preponderance of the evidence. Id. It is well settled law that a police officer may stop and detain a motorist when he has probable cause to believe that a traffic violation has occurred. Travis v. State, 331 Ark. 7, 9, 959 S.W.2d 32, 34 (1998). Probable cause exists when the facts and circumstances within an officer's knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Id. In assessing the existence of probable cause, our review is liberal rather than strict. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). Arkansas Code Annotated section 27-51-1301(a) (Repl. 1997) provides that:

(E)very vehicle stopped or parked upon a roadway where there are adjacent curbs shall be stopped or parked with the right-hand wheels of the vehicle parallel to and within eighteen inches of the right-hand curb.

Sgt. Holloway testified that he saw the truck parked in the middle of Edwards Street with its headlights off. This testimony is sufficient to support the trial court's decision that the initial stop was supported by probable cause.

Next, appellant Mindy Garrett argues that there was insufficient evidence to sustain her conviction. Specifically, she argues that the State failed to prove that the amount of marijuana she possessed was in excess of one ounce, and therefore there was no evidence to give rise to the presumption of an intent to deliver under Ark. Code Ann. § 5-64-401(d)(Repl. 1997). Section 5-64-401 states in pertinent part:

(d) REBUTTABLE PRESUMPTION. Possession by any person of a quantity of any controlled substance including the mixture or substance listed in this subsection in excess of the quantity limit set out herein shall create a rebuttable presumption that such person possesses such controlled substance with intent to deliver in violation of subsections (a) and (b) of this section. Provided, however, the presumption provided for herein may beovercome by the submission of evidence sufficient to create a reasonable doubt that the person charged possessed a controlled substance with intent to deliver in violation of subsections (a) and (b) of this section.

* * *

Marijuana - 1 oz.

(Emphasis added.)

Although appellant Mindy's "excess" argument is interesting, and has not been tested on appeal, we cannot consider it now. Appellant is limited in scope and nature to her objections and arguments presented at trial, and she may not change her objections on appeal. Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). Mindy joined in David's directed verdict motion; however, he argued that there was no evidence that he had constructive possession of the contents of her purse, and that without the marijuana found in the purse, the State had failed to establish the presumptive amount required for possession with the intent to deliver. Mindy did not argue below, as she does on appeal, that the State failed to prove intent because the cumulative weight of the marijuana seized was not in excess of 1.0 ounces. Since Mindy raised this argument for the first time on appeal, the argument is procedurally barred and will not be addressed on appeal.

Finally, David Garrett admits that there is sufficient evidence to convict him of possession of marijuana, which is a misdemeanor offense; however, he argues that the evidence is insufficient to establish that he was in constructive possession of the marijuana found in Mindy's purse.

A directed verdict motion is treated as a challenge to the sufficiency of the evidence. Killian v. State, 60 Ark. App. 127, 128, 959 S.W.2d 432, 433 (1998). When reviewing a denial of a directed verdict, we look at the evidence in the light most favorable to the State, considering only the evidence that supports the judgment or verdict. Darrough v. State, 330 Ark. 808, 810, 957 S.W.2d 707, 708 (1997); Killian, supra at 128, 959 S.W.2d at 433. We will affirm if there is substantialevidence to support a verdict. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Evidence is sufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993). Where the evidence is circumstantial, the appellate court must consider whether the evidence was sufficient to exclude all other reasonable hypotheses. Carter v. State, 324 Ark. 395, 398, 921 S.W.2d 924, 925 (1996).

Constructive possession may be imputed when the contraband is found in a place that is either accessible to the defendant and subject to his exclusive dominion and control, or subject to the joint dominion and control by the defendant and another. Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976). In order to prove constructive possession, the State must establish beyond a reasonable doubt that 1) the defendant exercised care, control, and management over the contraband, and 2) that the accused knew the matter possessed was contraband. See Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995). In Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994), our supreme court outlined a five-part analysis to determine if constructive possession had been established:

It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Possession of drugs can be proved by constructive possession. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Constructive possession can be implied when the drugs are in the joint control of the accused and another. However, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. There must be some other factor linking the accused to the drugs. Osborne, 278 Ark. at 50, 643 S.W.2d at 253. Other factors to be considered in cases involving automobiles occupied by more than one person are: (1) whether the contraband is in plain view; (2) whether the contraband is found with the accused's personal effects; (3) whether it is found on the same side of the car seat as the accused was sitting or in near proximity to it; (4) whether the accused is the owner of the automobile, or exercises dominion and control over it; and (5) whether the accused acted suspiciously before or during the arrest. Plotts v. State, 297 Ark. 66, 69, 759 S.W.2d 793, 795 (1988).

Additionally, appellant David cites Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000),to support his argument. In Boston, both the vehicle Boston was driving, and a car Boston was following were stopped soon after exiting the highway. Boston could not produce the registration for his vehicle and his car was subsequently impounded. An inventory search of his vehicle revealed a .45 caliber gun and a suitcase that belonged to an occupant of the lead car. The suitcase being stored in Boston's trunk contained a substantial amount of marijuana. Following the discovery of the marijuana, Boston was charged with simultaneous possession of drugs and firearms. After a review, we held that the State had failed to prove Boston had constructive possession of the marijuana in the suitcase. While we acknowledged that Boston's ownership of the car and his exclusive access to the trunk gave him control of the contraband, we found no evidence that he knew of the contents of the suitcase. Id. The court reasoned, that both control and knowledge of the existence of the contraband had to be proven in order to sustain a possession conviction based on constructive possession. Id.

In the case at bar, the contraband in dispute was in Mindy's purse, on Mindy's side of the vehicle, and was not in plain view. Mindy's purse was in David's truck, and was accessable to David, however, there was no evidence presented that David knew what was inside of Mindy's purse. Also, the mere fact that the purse was in David's vehicle is not adequate to give rise to an inference of possession. Nor is the fact that the appellants were once married persuasive to establish possession. While the State has established that David did have the requisite control of the contraband, the State failed to prove the requisite knowledge on the part of David regarding the contents of Mindy's purse.

Additionally, applying the Mings test to the present case further supports a lack of constructive possession on the part of David, regarding the marijuana found in Mindy's purse. First, the officer testified that the marijuana in Mindy's purse was not in plain view. Second, the pursebelonged to Mindy and was not among David's personal effects. Third, the purse was found on the passenger side of the truck. Fourth, while David did have control of the contraband, he did not have knowledge of the contents of the purse. Finally, the officer testified that the only movements he observed that suggested any nervousness were Mindy's.

The State argues, in the alternative, that if we determine that the presumption of intent was not established because David did not have constructive possession of the purse, the conviction should still be affirmed. Specifically, the State argues that the fact that appellant did possess marijuana and on cross-examination admitted to a 1994 conviction for delivery of marijuana is enough to prove his intent to deliver. While the evidence can be sufficient to prove possession of drugs with the intent to deliver, even when the amount of the drugs is insufficient to trigger the statutory presumption, Blockman, supra, we do not feel that David's possession of a single bag, that is clearly less than 1.0 ounce, and his prior 1994 conviction for delivery of marijuana is sufficient to prove possession with the intent to deliver absent the statutory presumption.

Appellant Mindy Garrett's conviction is affirmed. With respect to appellant David Garrett's felony conviction of possession with intent to delivery, the decision of the trial court is reversed and we remand the case for re-sentencing on the misdemeanor charge of simple possession of marijuana.

Affirmed as to Mindy Garrett; reversed and remanded as to David Garrett.

Griffen and Roaf, JJ., agree.