Daniel Dewitt Corby v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION I

DANIEL DEWITT CORBY

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR01-607

MARCH 13, 2002

APPEAL FROM GREENE COUNTY CIRCUIT COURT

[NO. CR00-112]

HONORABLE DAVID BURNETT, CIRCUIT JUDGE

AFFIRMED

Daniel Dewitt Corby was convicted by a jury of possession of methamphetamine and sentenced to eighteen months in a Regional Punishment Facility with a suspended imposition of sentence of sixty months. Corby was also ordered to pay a fine and to complete drug counseling as a condition of his suspended sentence. On appeal, Corby argues that the trial court erred by denying his motion to suppress evidence and by admitting several items of drug paraphernalia into evidence that were more prejudicial than probative of the charge of possession of methamphetamine. We affirm.

At trial, the following evidence was presented. On March 29, 2000, the Paragould Police Department executed a search warrant at the apartment where Corby lived with his girlfriend, Cheryl Otto. The warrant directed the officers to search for Cheryl Otto and certain items of stolen property, including a television, two swords, a pair of men's tennis shoes, three pairs of infant tennis shoes, and other items of infant clothing. When the officers knocked at the door of the apartment, Corby answered the door and let the officers in. There were several other individuals present in theapartment, in addition to Corby and Otto. The officers arrested Otto and let the other individuals leave the apartment, except for Corby. While Sergeant Ken Jackson and Officer Mark Walker were searching the apartment, Officer Clinton Eubanks remained with Corby, who was sitting on a couch in the living room.

At the suppression hearing, Eubanks testified that towards the conclusion of the search, Walker decided to look underneath the couch for a second time. As Walker proceeded to pick up one end of the couch, Corby rose off the couch for a moment. Eubanks testified that he saw a match tin lying on the floor underneath the couch. According to Eubanks's testimony, when Corby saw the tin, he stated that the tin was his and that he had been looking for it. Eubanks testified that Corby then picked up the tin and sat back down on the couch. Eubanks noticed that the top of the tin was not completely closed, and he testified that he saw a plastic bag with white residue sticking out of the tin about a half-inch. Eubanks then reached down and grabbed the plastic bag, which contained a white substance that was later tested to be methamphetamine. Eubanks relayed the information to Jackson, who was not in the living room when the tin was found.

At the hearing, Jackson was examined as to the summary report that he prepared after the execution of the warrant. Jackson testified that he based the information in the report about the match tin on his conversations with Eubanks and Walker. The report stated that Eubanks retrieved the tin from the floor and that he opened it to discover the plastic baggies inside. Jackson testified that he could not recall if Eubanks or Walker had specifically told him that they opened the tin, but Jackson stated that they did not tell him it was opened when they found it. Jackson also testified that it was possible that he was mistaken about the particular facts in preparing the report.

Corby also testified that Eubanks was the one who picked up the tin and that it was closed until Eubanks opened it. Corby admitted that he had stated that the tin was his, but denied anyknowledge of the drugs inside. The trial court denied Corby's motion to suppress, finding Eubanks's testimony that the tin was open and that the methamphetamine was in plain view to be credible. Although none of the items specified in the search warrant were found in the apartment, there were several items of drug paraphernalia admitted into evidence at trial that were found in the bedroom where both Otto and Corby slept.

Corby argues that the trial court erred by failing to suppress the match tin and methamphetamine, because the container was closed when it was found, it could not have possibly contained any of the items listed in the search warrant, and there were no other exigent circumstances justifying a search of the container. In reviewing the denial of a motion to suppress evidence, the appellate court makes an independent examination based upon the totality of the circumstances and reverses only if the decision is clearly against the preponderance of the evidence. Foster v. State, 66 Ark. App. 183, 991 S.W.2d 135 (1999). A determination of the preponderance of the evidence depends heavily on questions of credibility and weight to be given the testimony, and we defer to the superior position of the trial court on those questions. Campbell v. State, 27 Ark. App. 82, 766 S.W.2d 940 (1989).

Corby contends that the officers exceeded the permissible scope of the search warrant in looking inside the match tin, because none of the items they sought could have reasonably been found in the tin, and no other exigent circumstances existed. However, the trial court found that the tin was open and that the plastic bags containing methamphetamine were in plain view, based on the testimony at the suppression hearing. The plain-view exception to the warrant requirement, found in Ark. R. Crim. P. 14.4, allows an officer who is otherwise lawfully present at a place, to seize an object that is in plain view, if its incriminating character is immediately apparent. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); see State v. Risinger, 297 Ark. 405, 762 S.W.2d 787(1989) (finding that police officers, who were executing an arrest warrant, were permitted under the plain view exception to seize contraband found on a glass tray protruding from underneath a couch). Here, the officers were acting pursuant to a search warrant of the apartment, and according to Officer Eubanks, the tin found underneath the couch was open and a plastic bag with white residue was in plain view. Thus, the tin and the methamphetamine were properly seized pursuant to the plain-view exception.

Essentially, Corby is asking this court to believe his testimony that the tin was closed and disbelieve the testimony of Eubanks. However, an appellate court will not second-guess credibility determinations made by the trial court. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000); Campbell v. State, supra. Although Corby argues that there were conflicts between Eubanks's testimony and Jackson's written report, conflicts in the testimony at a suppression hearing are for the trial judge to resolve. Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001). The trial court was not required to believe the testimony of any witness, especially that of the accused, because he is the person most interested in the outcome of the proceedings. Id. Here, the trial court believed the testimony of Eubanks, who was in the room where the tin was found. Even though Jackson's report contradicts Eubanks's testimony, Jackson admitted that he was not present when the tin was found and that he may have been mistaken about the particular facts contained in his report. Deferring to the superior position of the trial court to resolve conflicts in the testimony and evaluate the witnesses' credibility, we cannot say that the trial court's denial of Corby's motion to suppress was against the preponderance of the evidence.

Corby next argues that the trial court erred in admitting into evidence a copper pipe, a wand with attached alligator clip, and a scanner, because these items were more unfairly prejudicial than probative of his possession of methamphetamine. For evidence of other crimes to be admissibleunder Rule 404(b), such evidence must be independently relevant, and the probative value of the evidence must outweigh any danger of unfair prejudice. Id. Evidence of another crime is independently relevant if it tends to prove a material point, such as to show the defendant's intent, motive, or knowledge, and is not introduced solely to demonstrate that the defendant is a criminal. Id. The admission or rejection of evidence of other crimes is left to the sound discretion of the trial court and will not be reversed on appeal absent a manifest abuse of discretion. Id.

At trial, the State sought to introduce the copper pipe, the wand with attached alligator clip, and the scanner, all of which were found in a bedroom occupied by Otto and Corby. Corby objected to the introduction of the copper pipe and the scanner on the grounds that this evidence was more prejudicial than probative of the charge of possession of methamphetamine, under Ark. R. Evid. 403. The trial court admitted the evidence over Corby's objections, stating that the evidence was admissible under Ark. R. Evid. 404(b) to show Corby's reason or purpose for possessing the methamphetamine. Before admitting the pipe and the wand, the trial court read a cautionary instruction to the jury, stating that the evidence should only be considered for the purposes set out in Rule 404(b). Because Corby did not object to the introduction of the wand with the attached alligator clip, we will not address his argument as to this piece of evidence. See Johnson v. State, 337 Ark. 477, 989 S.W.2d 525 (1999) (stating that the appellate court will not address issues raised for the first time on appeal).

Corby does not argue on appeal that the copper pipe and scanner were not relevant; he only argues that their probative value was outweighed by the danger of unfair prejudice. Because there was an issue raised at trial as to whether Corby intentionally possessed the contraband and whether he knew that the tin contained contraband, this evidence of drug paraphernalia in the bedroom occupied by Corby was relevant to show his intent, purpose, or knowledge under Rule 404(b), asstated by the trial court. See Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995) (finding that evidence of defendant's prior drug sales was admissible to rebut defendant's claim that he had no knowledge of the presence of the drugs in his home); Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993) (stating that evidence that defendant and an informant discussed an exchange of drugs, that a drug seller was observed going into defendant's house immediately after he sold cocaine, and that drugs and drug paraphernalia were found in master bedroom supported conclusion that defendant had knowledge and constructive possession of cocaine); Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986) (finding that drug paraphernalia found in defendant's home was part of the res gestae of the crime of possession of marijuana and was relevant to show defendant's motive for possessing drugs, even though evidencing other crimes).

Even if it is relevant, the evidence still must be excluded under Ark. R. Evid. 403 if the prejudicial impact of the evidence substantially outweighs its probative value. Corby argues that the copper pipe was unfairly prejudicial because the pipe was not tested for any methamphetamine residue, and thus, it had no relationship to the charge of possession of methamphetamine. Corby also argues that there was no evidence to show that he owned the scanner, and because Otto testified that it belonged to someone else, its admission was more prejudicial than probative. It is true that there was no actual evidence that Corby owned or used either of these items, but the items were found in the bedroom that Corby shared with Otto. Because there is a lack of strong evidence to connect Corby with these items and to connect these items with the possession of the methamphetamine, we agree that the probative value of this evidence is slight. However, because there is an abundance of other evidence to support Corby's conviction for possession of methamphetamine, we cannot say that evidence of the pipe and scanner unfairly prejudiced the jury.

Possession of a controlled substance does not necessarily require actual or physical possession. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). Constructive possession, which is the control or right to control the contraband, is sufficient. Id. 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. Where there is joint occupancy of the premises where the contraband is seized, some additional factor must be found to link the defendant to the contraband; the State must prove that the accused exercised care, control, and management over the contraband and also that the defendant knew that the matter possessed was contraband. Id. "This control and management can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found." Nichols v. State, 306 Ark. 417, 420, 815 S.W.2d 382, 384 (1991).

Here, Corby was sitting on a couch, in an apartment where he resided, directly above where the tin containing the methamphetamine was found. After the couch was lifted, the contraband was in plain view, according to the testimony of Eubanks. Also, Corby admitted that the tin was his when he saw it under the couch, grabbed it off the floor, and held it. This evidence is sufficient to support the conclusion that Corby had actual or constructive possession of the methamphetamine. Even the erroneous admission of evidence is not prejudicial and is harmless error where there is overwhelming evidence supporting the conviction. See Johnson v. State, supra (finding that error in admitting evidence that the defendant met the co-defendant in the penitentiary following another conviction was harmless); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997) (finding that erroneous admission of drug paraphernalia was harmless with respect to the convictions for possession and delivery of drugs). Because of the abundance of other evidence supporting Corby's conviction for possession of methamphetamine, the probative value of the pipe and scanner was notsubstantially outweighed by unfair prejudice, and the trial court did not abuse its discretion in admitting the evidence. We affirm.

Affirmed.

Crabtree and Robbins, JJ., agree.