Christopher Ray Sullivan v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE JOSEPHINE LINKER HART

DIVISION IV

CHRISTOPHER RAY SULLIVAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-167

November 14, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-3001]

HONORABLE DAVID BOGARD,

CIRCUIT JUDGE

AFFIRMED

Appellant, Christopher Ray Sullivan, was found guilty at a bench trial of the crimes of possession of cocaine with the intent to deliver, possession of drug paraphernalia, and maintaining a drug premises. He was sentenced as a habitual offender to a total of fifty years' imprisonment in the Arkansas Department of Correction. On appeal, he challenges the sufficiency of the evidence to support the convictions. Further, he argues that because the State purportedly failed to disclose to him, prior to trial, drug buy money found on him during his arrest, the trial court erred in admitting the drug buy money into evidence. We affirm.

At the bench trial, various officers of the North Little Rock Police Department testified regarding the execution of a search warrant at 1918 Magnolia in North Little Rock. Upon entering the residence, officers found a juvenile in the living room with a bag of marijuana at his feet and appellant standing near a refrigerator by the open back door of the

residence. On top of the refrigerator, officers found a bag containing six rocks of crack cocaine weighing 1.047 grams.

Officers recovered from appellant $714 in small bills. Two twenties found in appellant's possession were identified as buy money from a drug purchase made by an informant. According to the officers, there were two separate purchases of cocaine made by an informant at the residence thirty and thirty-one days earlier. One officer testified that appellant was identified by an informant as the person selling drugs at the residence.

Outside the open back door, a digital scale was found less than four feet away, which, according to one officer, is commonly used for weighing narcotics. In an outdoor storage room in the rear of the residence, officers found 9.257 grams of rock cocaine. In a dresser drawer in a southeast bedroom, officers found appellant's "Texas Department of Criminal Justice Offender" identification card and paperwork relating to appellant's Texas-imposed probation. Three marijuana roach cigarettes were discovered in a dresser in the northeast bedroom. A small baggie of marijuana was found in a safe on the floor of the same bedroom. Also recovered were plastic baggie corners, which according to one officer, are commonly used to package crack cocaine for sale. The State further introduced into evidence a certified copy of a criminal docket showing appellant's address as 1918 Magnolia.

At the conclusion of the presentation of the State's case, appellant moved for a directed verdict, stating as follows:

As to the misdemeanor Count 4, marijuana, I don't think there's been any evidenceconnecting the defendant with the marijuana certainly found at [the minor's] feet and he was arrested for, or that found in a safe, a small amount found in a safe in the northeast bedroom. As I'm sure the Court recalls, the only evidence concerning the defendant, other than his presence there, was found in the southeast bedroom.

The court denied the motion. Appellant further argued as follows:

For purposes of the record, I'd move to dismiss based on sufficiency of the evidence, citing Franklin v. State, and which is 962 S.W.2d 370, in which it is held that constructive possession, which apparently this is since there were no controlled substances found on the defendant, and he and another person were in the residence at the time of the execution of the search warrant, there must be an additional link between the defendant and the controlled substance above and beyond his mere presence there.

The court denied this motion as well.

At the conclusion of all the evidence, appellant renewed his motion, again citing Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998). The court denied the motion and found appellant guilty. The court then asked whether one had to reside at the premises to be guilty of maintaining a drug premises. The deputy prosecutor told the court that this was not an element of the crime. Appellant stated to the court that under Franklin, "knowledge or knowingly is an element of the offense maintaining a drug premises." The State also informed the court that all that was required was keeping or maintaining the premises, not residing there. The court then reiterated that appellant was guilty of all three counts but dismissed a misdemeanor count for possession of marijuana.

On appeal, appellant challenges the sufficiency of the evidence to support the three convictions. On the charge of possession of a controlled substance with the intent to deliver, he argues that the State failed to show that he jointly occupied the premises where thecocaine was found and that there was insufficient evidence that he constructively possessed the cocaine. Further, he argues that in evaluating the sufficiency of the evidence, the court should not consider certain evidence that he considers hearsay but which was admitted over his objection.

Our method of analysis in determining whether an appellant constructively possessed contraband is well established. Our supreme court has stated as follows:

[T]he State need not prove that the accused physically possessed the contraband to sustain a possession conviction. Indeed, if the location of the contraband was under the dominion and control of the accused, it is deemed constructively possessed. Although constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy, alone, is insufficient to establish possession or joint possession. Under the instant facts, the State must prove some additional factor linking the appellant to the contraband. Specifically, the State must prove that the appellant exercised care, control, and management over the contraband, and that she knew the matter possessed was contraband.

Fultz v. State, 333 Ark. 586, 596, 972 S.W.2d 222, 226 (1998)(citations omitted).

We conclude that there was sufficient evidence to support appellant's conviction. While appellant argues that he did not occupy the premises, we note that he was found in the residence. Moreover, his mother, testifying on his behalf, stated that he had access to the residence. Others were also present in the residence, so his occupancy, standing alone, is insufficient to establish possession of the crack cocaine. Appellant, however, was found standing next to a refrigerator, on top of which was found crack cocaine. Further, appellant was found with a large sum of cash in small bills, $40 of which came from controlled buys a month earlier, and appellant was identified as selling a controlled substance from the residence a month earlier. Given these additional factors linking appellant to the cocaine,we affirm his conviction.

Appellant also argues that, in determining whether the evidence is sufficient to support his conviction, we cannot consider purported hearsay from one officer. We disagree with appellant because, in determining the sufficiency of the evidence, we consider all of the evidence, including that which was erroneously admitted. Barrientos v. State, 72 Ark. App. 376, 383, 39 S.W.3d 17, 22 (2001). Moreover, we note that he did not raise as a separate issue on appeal his claim that the purported hearsay was improperly admitted.

Appellant further challenges the sufficiency of the evidence to support his conviction for possession of drug paraphernalia. However, as is apparent from the nature of his directed-verdict motions, appellant never moved for a directed verdict on this charge. Appellant's failure to move for a directed verdict precludes this court from reviewing the issue on appeal. See Ark. R. Crim. P. 33.1(b) and (c) (2001).

Appellant also challenges the sufficiency of the evidence to support his conviction for maintaining a drug premises, arguing that there was insufficient evidence that he maintained the premises or had any control over the controlled substances found there. Appellant argues that he preserved this issue by stating, "As I'm sure the Court recalls, the only evidence concerning the defendant, other than his presence there, was found in the southeast bedroom." That remark, however, was made with regard to the misdemeanor count of possession of marijuana.

We note that after the court pronounced appellant guilty, appellant stated to the court that under Franklin, "knowledge or knowingly is an element of the offense maintaining adrug premises." Appellant does not argue that this remark preserved his challenge to the sufficiency of the evidence. In our view, the remark was in the nature of information provided to the court. But, even if we consider his remark to be a challenge to the sufficiency of the evidence, his remark only was sufficient to preserve his claim, as was raised in Franklin, that he did not know of the cocaine's presence in the residence. We have, however, concluded that there was substantial evidence that he constructively possessed the cocaine found on the refrigerator. Thus, we conclude that there was sufficient evidence that he had knowledge of the controlled substance.

In his final issue on appeal, appellant argues, as he did below, that the court erred in admitting into evidence two twenty-dollar bills described as drug buy money because he alleges that the buy funds were not disclosed to the defense during discovery. At trial, the deputy prosecutor responded to appellant's objection to admission of the evidence by stating that it was in the case file, "listed in evidence as $40 of North Little Rock buy funds." She further noted that "there's an affidavit for search warrant where it indicates on that same house that they had two sales of narcotics, there were buy funds involved." The deputy prosecutor also noted that the file provided that buy funds were found on appellant.

"The trial court has broad discretion in matters pertaining to discovery, and that discretion will not be second-guessed by the appellate court absent an abuse of discretion." Findley v. State, 64 Ark. App. 291, 296, 984 S.W.2d 454, 457 (1998). We are hampered in our review because the documents through which the buy money was disclosed to appellant are not in the record. Nevertheless, it is apparent from the pleadings in the record thatappellant knew about the buy funds. Prior to trial, appellant filed a motion to compel disclosure of the identity of a confidential informant. In that motion, appellant notes that he "was purportedly found in possession of North Little Rock buy money at the time of his arrest, such buy money propounded to a confidential informant." Given that appellant was aware of the buy funds, we cannot say that the trial court abused its discretion not finding a discovery violation. See Clark v. State, 323 Ark. 211, 218, 913 S.W.2d 297, 301 (1996)(holding alternatively that there was no discovery violation for failure to disclose a witness where appellant stated on the record that he anticipated that the witness would be called).

Affirmed.

Vaught and Baker, JJ., agree.