James Isaac Cole, Jr. v. State of Arkansas

ar01-783

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION IV

CACR01-783

March 6, 2002

JAMES ISAAC COLE, JR. AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR00-1909]

V. HON. JOHN LANGSTON, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

James Cole, Jr. appeals from his conviction for possession of a controlled substance with intent to deliver. He argues that the evidence does not support his conviction because the State failed to prove constructive possession and failed to present evidence sufficient to independently corroborate the accomplice's testimony. He further argues that the trial court erred in denying his motion for a mistrial. We affirm.

Appellant was arrested on May 30, 2000, after a traffic stop initiated by Officer Ben Skeel, who observed a vehicle traveling at a high rate of speed. Skeel followed the vehicle, paced it for approximately 400 yards, and clocked the vehicle traveling forty-four miles per hour in a twenty-five mile-per-hour speed zone. The officer activated his lights, but thedriver did not respond. He then activated his siren.

Skeel testified that when he activated his siren, the driver looked in his rearview mirror. He stated that the driver continued driving and "was making a motion towards the middle of the seat . . . I could plainly see him turn around and doing something with the middle of the car." However, the officer could not specifically see what the driver was doing. Skeel further testified that during the twenty-five to thirty seconds between the time he activated his lights and when the driver pulled over into a Junior Food Mart parking lot, the driver passed several places he could have stopped sooner, including a street, a parking lot, a church parking lot, and two entrances into an apartment complex.

Appellant was the driver of the car, which belonged to Dee Mitchell, who sat in the front passenger seat. Skeel stated that there was a purse sitting on the console between Mitchell and appellant. He further stated that Mitchell and appellant seemed nervous and evasive when he asked them for information regarding his driver's license, insurance, and registration. The officer testified that Mitchell "wouldn't hardly speak. She would hardly say a word, they just seemed real nervous, hands shaking."

Because of appellant's prior movements toward the middle of the car and because the occupants were acting nervous, Skeel requested permission to search the vehicle, which he described as nearly immaculate. After determining through an Arkansas Crime Information Center check that the vehicle belonged to Mitchell, Skeel asked her if there were any weapons or drugs in the vehicle. Mitchell did not respond verbally, but looked at appellant. Appellant stated to her, "There's nothing in there. Let `em." Mitchell then signed a consentto search and Officer Steve Carpenter looked through Mitchell's purse that was sitting on the console between her and appellant. Near the top of the inside of the purse, the officers found eight separate baggies containing a white powder. This substance was later determined to be 32.179 grams of methamphetamine.

Appellant and Mitchell were placed under arrest for possession of methamphetamine with intent to deliver. A search of appellant's person revealed $1,950 in cash. At the scene, Mitchell never admitted ownership of the drugs. She later pleaded guilty and testified against appellant at his trial.

Mitchell testified that appellant was in her apartment the evening before and divided a methamphetamine ball into "eight-balls," which weigh approximately one-eighth of an ounce. She stated that he packaged each eight-ball separately. The next day, on April 30, she rode with appellant, who "was going to take it and drop it off." Mitchell testified that when they left her apartment, appellant had the methamphetamine on his person and he drove her car. She said that they only went to one place and that appellant "dropped off some dope [and] picked up some money." She further testified that she saw appellant receive money from the transaction and put the money in his wallet.

According to Mitchell, when the officer pulled behind them, appellant took the methamphetamine from his person and instructed her to put it in her purse. She stated that she refused because the drugs were not hers and that appellant dropped the drugs in her purse, which remained partially opened. Mitchell admitted she did not tell the arresting officers that appellant put the drugs in her purse, but she asserted that she told them the drugsbelonged to him. She also denied knowing Edna Martin, who subsequently testified that Mitchell admitted to her in jail that the drugs belonged to her.

Officer Scott Carpenter assisted Skeel in conducting the traffic stop. He testified that he asked appellant if he could look in the vehicle and appellant indicated that Carpenter would have to obtain consent from Mitchell because the car did not belong to him. After Mitchell consented to the car search, Carpenter found the drugs in her purse. Following Carpenter's safety-pat-down of appellant, he checked appellant's wallet which contained $1,950 in cash. Carpenter stated that appellant told him he was employed by a construction company and had just gotten paid. Carpenter also stated that another officer watched appellant because appellant was acting nervous.

Gilbert DeLeon testified that he was incarcerated with appellant. DeLeon testified that he asked appellant why he was in jail and appellant stated, "We had dope on us." According to DeLeon, appellant admitted that he had thirty-two grams of dope on him, that the dope was his, and that he had $1,900 cash. Appellant also told him that he put the dope in Mitchell's purse. DeLeon admitted that he met Mitchell in a rehabilitation program and had discussed the incident with her. He indicated that his conversation with Mitchell was "the same conversation I had with Jimmy." DeLeon further stated that appellant "said he had put the meth in her purse to protect hisself [sic] from getting more charges."

At this point, appellant's counsel moved for a mistrial, arguing that the witness had prejudiced appellant because he had informed the jury that appellant had prior criminal charges. The trial court denied the motion, reasoning that the witness's statement could beconstrued as a reference to other charges related to this offense and did not necessarily mean that he had other charges pending.

Detective William Michaels of the Sherwood Police Department testified that he read appellant his Miranda rights, which appellant waived. Appellant told Michaels that the methamphetamine in the vehicle was not his. Similarly, when Michaels questioned Mitchell, she stated that the drugs did not belong to her and that they must have belonged to appellant. Appellant thereafter requested that the court declare Mitchell to be an accomplice as a matter of law, and the court reserved ruling on that issue. Appellant's counsel then moved for a directed verdict, arguing that the evidence was insufficient to show that he possessed the drugs. He also argued that the State failed to corroborate Mitchell's testimony. Finally, he asserted that the State could not bootstrap Mitchell's uncorroborated testimony onto DeLeon's uncorroborated testimony.

The court denied appellant's motion for a directed verdict. The court found Mitchell to be an accomplice as a matter of law, but further found the corroborating evidence was sufficient. The court stated:

if these facts are to be believed by the jury, the facts would show that Defendant was driving the vehicle, which was stopped by the police. He failed to pull over immediately, passing several places to pull over, was making movements with his hands in the middle of the seat. When he stopped there was a purse sitting next to him which contained the drugs in the matter. And those are well-established without any testimony whatsoever from the accomplice. Looking at the circumstances . . . I believe that is enough corroboration for the jury to decide. . . .

The court agreed that the State could not bootstrap Mitchell's testimony onto DeLeon's, but found that even without her testimony, the evidence was sufficient towithstand a motion for a directed verdict.

Regarding the corroboration necessary for DeLeon's testimony, the court stated: "[T]here is evidence in this case that the offense was committed, in fact, based upon the amount of methamphetamine that they found. So that would let in the testimony of the confession because there's no allegation that the person who heard the alleged confession was an accomplice to it." Therefore, the trial court denied appellant's motion for a directed verdict.

Edna Martin testified next for the defense. She stated that she was incarcerated with Mitchell. Martin testified that she did not know Mitchell before then, but noticed her when she came in with appellant, because Martin knew appellant. Martin further testified that she asked Mitchell why she and appellant were in jail. According to Martin, Mitchell responded that methamphetamine had been found in her purse. She said that Mitchell indicated she "wasn't going to take no charge," and was going to say that the drugs were not hers. Martin further stated that she asked Mitchell if the drugs belonged to her or to appellant and Mitchell admitted that they belonged to her. Finally, Martin testified that Mitchell said she had never been in trouble before, and indicated that she was going to attempt to get appellant to "take the charge for her."

At the close of all of the evidence, appellant renewed his motions for a directed verdict on the same grounds, but additionally argued that Martin's testimony rebutted DeLeon's testimony. The trial court denied the motion. Appellant was found guilty by a jury and was sentenced to serve twenty-five years in the Arkansas Department of Correction. This appeal followed.

I. Sufficiency of the Evidence Supporting Constructive Possession

Appellant first argues that the State failed to prove joint possession of the contraband. We consider the sufficiency of the evidence before evidentiary errors in order to protect a defendant's right to be free from double jeopardy. See, e.g., Goodman v. State, 74 Ark. App. 1, 45 S.W.3d 399 (2001). In conducting this review, we examine all of the evidence, including that allegedly admitted erroneously, and review the evidence in the light most favorable to the State as the prevailing party below. See, e.g., Willingham v. State, 60 Ark. App. 132, 959 S.W.2d 74 (1998). It is well settled that the State is not required to prove literal physical possession of drugs in order to sustain a conviction for possession. See, e.g., Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999). The evidence is sufficient it to sustain a conviction if the State establishes constructive possession, which may be implied when the drugs are in the joint control of the accused and another. See id. However, joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession. There must be some additional factor linking the accused to the drugs. See id. 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 within 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 exercised dominion and control over it; and (5) whether the accused acted suspiciously before or during the arrest. See id.

Appellant first contends that the vehicle belonged to Mitchell and argues there is no evidence that he attempted to exercise dominion and control over the car. He maintains that this is demonstrated by Officer Carpenter's testimony that when he asked appellant for consent to search the car, appellant indicated that the vehicle was not his and that Mitchell would have to give consent. Further, appellant notes that the drugs were not in plain view; that the drugs were found in Mitchell's purse; and that the purse was in equal proximity to Mitchell. He maintains that there was no evidence that he acted nervously and to the contrary, stated to Mitchell, "There's nothing in there. Let `em [search]."

Viewing the evidence in the light most favorable to the State, we hold that there was sufficient evidence of constructive possession. The State was only required to show one additional factor linking appellant to the contraband, but here, it showed several. First, the fact that he was driving the vehicle demonstrates dominion and control over the vehicle. See, e.g., Johnson v. State, 35 Ark. App. 143, 814 S.W.2d 915 (1991). See also Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Second, the drugs were found in his immediate proximity, on the console between him and Mitchell. See Littlepage v. State, supra. Third, although the drugs were not in plain view, they were found in the top of Mitchell's purse, which she testified was partially open. Fourth, despite appellant's assertion to the contrary, there was evidence that he acted suspiciously. He failed to pull over immediately, made movements with his arms in the same area of the car where the drugs were found, and Officers Skeel and Carpenter testified that he acted nervous. Finally, Mitchell testified that the drugs belonged to appellant, and DeLeon testified that appellantadmitted the drugs belonged to him.

We hold that the trial court did not err in finding this evidence was sufficient to demonstrate appellant's constructive possession over the contraband. See Nowden v. State, 31 Ark. App. 266, 792 S.W.2d 621 (1990) (affirming conviction for possession of a controlled substance where defendant drove the vehicle, where the contraband was in his immediate vicinity, and where he acted nervous after he was stopped).

II. Sufficiency of the Corroborating Evidence

Appellant also challenges the sufficiency of the corroborating evidence in this case. He maintains that if Mitchell's testimony is eliminated, the only remaining evidence is that the drugs were found in her purse, which was located in her vehicle. He argues that there is nothing else that "remotely links" him to the possession of the drugs. He contends that, by contrast, the testimony of Martin shows that Mitchell admitted the drugs were hers and that she was trying to get appellant to take the charge for her.

Arkansas Code Annotated section 16-89-111(e)(1)(A) (Supp. 2001) provides that a conviction cannot be based upon the testimony of an accomplice unless accompanied by other proof tending to connect the defendant to the offense. The corroborating testimony of an accomplice is not sufficient if it merely shows that the offense was committed. See Ark. Code Ann. § 16-89-111(e)(1)(B). The corroborating evidence must independently establish the crime and tend to connect the accused to it. See McDonald v. State, 37 Ark. App. 61, 824 S.W.2d 396 (1992). However, the corroborating evidence need not be so substantial to support a conviction. See Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996). Theinquiry on appeal is whether there is substantial evidence to support the jury's finding that the corroborating evidence was sufficient, considering only that evidence which supports a jury verdict, and disregarding any testimony that could have been rejected by the jury on the basis of credibility. See Maynard v. State, 21 Ark. App. 20, 727 S.W.2d 858 (1987).

Here, the corroborating evidence, exclusive of Mitchell's testimony, demonstrated that appellant was stopped for speeding and was driving the vehicle in which over thirty-two grams of methamphetamine were found. He failed to pull over immediately and once the officer activated his siren, appellant made motions with his arms toward the middle of the seat, where the drugs were found. There was no evidence that anything other than the purse was found in that vicinity. In fact, Skeel testified that the car was nearly immaculate. Further, appellant was found with a large amount of cash in his wallet, approximately $1,950, a fact the jury may properly consider as a factor establishing the intent to deliver contraband. See, e.g., Sweat v. State, 25 Ark. App. 60, 752 S.W.2d. 49 (1988) (affirming conviction for possession with intent to deliver in part where $1,126 was found on the premises). While appellant asserted to Carpenter that he had just been paid from his construction job, the jury was not required to believe him. See Alexander v. State, 55 Ark. App. 148, 934 S.W.2d 927 (1996). Finally, appellant was also acting so nervous that another officer was assigned to watch him.

Thus, exclusive of Mitchell's testimony, the evidence was sufficient to independently establish the crime and appellant's connection to it. Moreover, the jury was not required to believe Martin's testimony that Mitchell admitted the drugs belonged to her. Therefore, wehold that the evidence was sufficient to corroborate Mitchell's testimony that the drugs belonged to appellant and that he delivered the drugs in exchange for some of the money that was found in his wallet.

Appellant further argues that the State cannot bootstrap Mitchell's "uncorroborated" testimony onto DeLeon's. This argument may be technically correct, but is without merit on the facts of this case for two reasons. First, Mitchell's testimony was sufficiently corroborated. Second, appellant misapprehends the corroboration necessary to support an out-of-court confession. As determined by the trial court, DeLeon was not an accomplice; therefore, his testimony was not required to be corroborated to the same extent as Mitchell's. Arkansas Code Annotated section 16-89-111(d)(Supp. 2001), only requires an out-of-court confession to be accompanied by other proof that the offense was committed. This requirement for other proof, sometimes referred to as the corpus delicti rule, mandates only proof that the offense occurred and nothing more. See Tinsley v. State, 338 Ark. 342, 993 S.W.2d 898 (1999).

Here, it is undisputed that the officers seized over thirty-two grams of methamphetamine, which was sufficient to create a rebuttable presumption that the possession was with intent to deliver. See Ark. Code Ann. § 5-64-401(d)(Supp. 2001). This constituted sufficient proof that a crime was committed. See Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) (holding that evidence was sufficient to support conviction for possession with intent to deliver where defendant was found in possession of methamphetamine in an amount in excess of the statutory presumption). Appellantattempted to rebut this presumption by arguing that the drugs did not belong to him. However, the jury was not required to believe his testimony. See Alexander v. State, supra. Moreover, DeLeon's testimony, if believed by the jury, constituted substantial evidence of appellant's participation in the crime, because a voluntary confession of a defendant made to one who is not an accomplice, is sufficient to corroborate the testimony of an accomplice. See Porter v. State, 206 Ark. 758, 177 S.W.2d 408 (1944); Knowles v. State, 113 Ark. 257, 168 S.W. 148 (1914). Therefore, we hold that DeLeon's testimony was sufficiently corroborated.

III. Motion for Mistrial

Appellant's final argument is that the trial court erred in not granting a mistrial when DeLeon indicated that appellant told him that he put the drugs in Mitchell's purse to prevent himself from obtaining more charges. He asserts that this testimony informed the jury that he either had prior felony convictions or prior felony charges pending, and that either way, he was prejudiced to the effect that no instruction would have cured the prejudice. He maintains that "no person would make a statement that he put drugs into someone else's purse because he had just gotten a speeding ticket."

A trial court has wide discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for abuse of discretion or manifest prejudice to the complaining party. See Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Our supreme court has recognized that any reference to a defendant's prior convictions during the guilt phase of a criminal trial always results in some prejudice. SeeStanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994). However, this does not always require reversal. A mistrial is proper only when the error is beyond repair and cannot be corrected by any curative relief. See Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. See id.

We hold that the trial court did not err in denying appellant's motion for a mistrial. First, DeLeon's comments did not necessarily implicate prior convictions or charges, felony or otherwise. Although the jury was presumably aware that the charge for which appellant was being tried was a felony, there had been no evidence admitted indicating that appellant had any prior felonies. Moreover, shortly before the objectionable statement, DeLeon testified that appellant stated when he saw Mitchell in the rehabilitation center, they "got to talking about charges, my charges, her charges, and she mentioned Jimmy Cole. That's how we got started talking about it." DeLeon then indicated that the conversation he had with appellant was the same as the conversation he had with Mitchell. When asked shortly thereafter if appellant told him how the drugs got in her purse, DeLeon then stated: "He had put it there to protect hisself [sic] from getting more charges." Thus, given the full context of DeLeon's contemporaneous testimony, the jury could have concluded that appellant was referring to additional charges related to the traffic stop, felony or otherwise, and was not necessarily related to any prior felony convictions or charges.

We also note that appellant did not request a curative instruction. Although he argues that no instruction could have cured the prejudice in this case, that was a determination forthe trial court, not appellant, to make. Inadvertent references to previous illegal conduct may be cured by an admonition from the trial court ordering the jury to disregard the statement. See Hall v. State, 314 Ark. 402, 406, 862 S.W.2d 268 (1993) (affirming trial court's denial of motion for mistrial where the officer's statement referring to defendant's "previous occasions and stuff" was vague and could have been cured by an instruction, but no admonition was requested). Appellant's belief that no curative instruction would purge the prejudice does not relieve him from his obligation to demonstrate that he was prejudiced. Thus, we hold that the trial court did not err in denying appellant's motion for a mistrial.

Affirmed.

Bird and Baker, JJ., agree.