Roger D. Ross v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

ROGER D. ROSS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-859

JUNE 19, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 98-4041]

HONORABLE LEON JOHNSON,

JUDGE

AFFIRMED

Appellant, Roger Ross, appeals his convictions by the Pulaski County Circuit Court on simultaneous possession of drugs and firearms, possession of a controlled substance with intent to deliver (marijuana), possession of a controlled substance with intent to deliver (methamphetamine), possession of drug paraphernalia, and maintaining a drug premises. Appellant argues that trial court erred in (1) denying appellant's motion to suppress evidence and a statement and (2) that there was not sufficient evidence to support his five convictions. We disagree and affirm.

FACTS

On July 16, 1998, the North Little Rock Police Department executed a search warrant on a residence at 43 Aloha Drive in North Little Rock, the residence of Roger Ross. A detective knocked on the front door and yelled, "Police, Search Warrant." He waited, knocked again, and when no one responded, the police broke down the door. Three men were located within the residence: Roger Ross, Charles Humphries, and Jason McDonald. The officers found 1.9 ounces

of marijuana, 9.8grams of methamphetamine, seven firearms, scales commonly used in drug sales, and a pen and straw that had methamphetamine residue. Appellant was found in a rear bedroom. The officers discovered marijuana in a pantyhose box on a shelf in that room. A twenty-gauge shotgun and a SKS semiautomatic 9mm rifle were found between the wall and the entertainment center in this bedroom. The rifle had a loaded ammunition clip. Officers also located a Ruger P-89, 9mm pistol in a box on the nightstand and a Sterling .25 semi-automatic pistol on the entertainment center in a case with a clip. The .25 pistol was loaded. There was $2920 in cash found in a black pouch on the dresser in the same bedroom where the appellant was located. In this amount of cash were found five $20 bills that had been given to a confidential informant to make a controlled drug buy at the appellant's home that same day.

Appellant was then taken to the kitchen where another officer read him his rights. At some point, appellant walked outside with an officer and located two bags that he claimed were his. One black leather bag contained electronic scales, commonly used in drug sales, and a pen and straw that had residue of methamphetamine on them. The other bag contained ziploc sandwich bags often used to package illegal drugs and Super B, a vitamin used as a cutting agent in methamphetamine production. There were other drug paraphernalia items found in the bag, along with prescription bottles that had Roger Ross's name on them. The officers also located a fake soup can in a kitchen cabinet that contained some straws and pieces of paper with instructions for making methamphetamine. A bug sweeper, a device to locate listening devices on a person or in a room, was located in the middle bedroom of the house. A sixteen-gauge Winchester shotgun was also found in the middle bedroom. All items seized under the search warrant were sent to the crime lab. One officer, who was familiar with Mr. Humphries, participated in a three-way conversation with the appellant and Mr. Humphries. The appellant and Mr. Humphries were discussing whetherthey should cooperate with the police. After some discussion, Mr. Humphries led the officer to a bar stool. The 9.8 grams of methamphetamine were located under the cover of the bar stool. Mr. Ross and Mr.Humphries were both arrested and charged with simultaneous possession of drugs and firearms, possession of a controlled substance with intent to deliver (marijuana), possession of a controlled substance with the intent to deliver (methamphetamine), possession of drug paraphernalia, and maintaining a drug premises. The appellant was convicted of all five charges after a bench trial. He was sentenced to a total of ten years in the Arkansas Department of Correction. It is from these convictions that appellant brings this appeal.

ARGUMENT

Appellant argues that the trial court erred in denying his motion for a directed verdict at the close of the trial. A motion for directed verdict is a challenge to the sufficiency of the evidence. Chrobak v. State, 75 Ark. App. 281, 287, 58 S.W.3d 387, 390 (2001). In an effort to prevent possible double-jeopardy problems on remand, challenges to the sufficiency of the evidence will be considered first. Goodman v. State, 74 Ark. App. 1, 45 S.W.3d 399 (2001). Our standard of review was expressed in Goodman, supra at 7, 45 S.W.3d at 403 (citations omitted), where we stated:

The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict.

Appellant was convicted of five drug-related offenses. The first to be addressed is simultaneous possession of drugs and firearms. It is unlawful to simultaneously possess illegal drugs and firearms. Ark. Code Ann. § 5-74-106(a)(1) (Repl. 1997). The statutory defense to this crime is that a "defendant was in his home and the firearm was not readily accessible for use." Ark. Code Annotated section 106(d). A defendant does not need to be in the same room as the guns forthem to be considered readily accessible. See Manning v. State, 330 Ark. 699, 704, 956 S.W.2d 184, 187 (1997) (two guns on a shelf in a bedroom closet were considered readily accessible to the defendant who was in the kitchen). Possession of one ounce of marijuana creates a presumption that the defendant had the intent to deliver. Ark. Code Ann. § 5-64-401(d) (Repl. 1997). The same presumption is created when a defendant is in possession of 200 milligrams or more of methamphetamine. Id. The State must also prove that there is a connection between the firearms and the drugs. Manning, supra. Mere possession of a firearm will not suffice. Id.

Appellant argues that the State did not prove that he had the intent to deliver the drugs and that the weapons in the house were readily accessible. The State argues that the statute only requires proof of felony possession. We agree. The requisite amount of drugs necessary for felony possession was found in the appellant's home. The State met its burden of proof under the statute in regard to felony possession of a controlled substance.

The appellant also raises the defense that he was in his home and the guns were not readily accessible. This argument is not successful. The appellant was in his bedroom at the time that the police entered his home. There were two guns, one with ammunition in the clip, located between the wall and the entertainment center, and two pistols were found on the night stand next to the bed. Another loaded pistol was found on the dresser/entertainment center. In the same room, the police located 1.9 ounces of marijuana, which the appellant admitted was his. The police also found 9.8 grams of methamphetamine in the house. Appellant was in a bedroom with at least five guns, at least one was loaded, and a felony amount of marijuana. There is no question that the weapons were readily accessible to the appellant, and that there were drugs present in the same room. We hold that the State presented sufficient evidence to support a conviction of simultaneous possession of drugs and firearms.

The appellant was also convicted of possession of methamphetamine with intent to deliver. He argues that the State did not present sufficient evidence of possession or constructive possession to sustain a conviction. Appellant also argues that the State did not prove the necessary intent for the offense. We disagree. The police found 9.8 grams of methamphetamine under a barstool cushion. The police were led to the drugs by Charles Humphries after Mr. Humphries and the appellant had a discussion about cooperating with the police. The amount of methamphetamine that was found is enough to create the presumption under the law that the appellant had the intent to deliver. See Ark. Code Ann § 5-64-401(d) (Repl. 1997). However, this was not the only evidence presented to the court. Electronic scales, commonly used in drug sales, paraphernalia with drug residue, and recipes to make methamphetamine were also found in the appellant's home.

The State does not need to prove actual possession of the controlled substance. Stanton v. State, 344 Ark. 589, 599, 42 S.W.3d 474, 480 (2001). Constructive possession is sufficient, and it may be implied when the contraband is in the joint control of the accused and another. Id. at 599, 42 S.W.3d at 481. Constructive possession requires the State to demonstrate that the accused exercised care, control and management over the contraband, and that the accused knew that the matter was contraband. Id. Appellant's conversation with Mr. Humphries prior to the disclosure of the 9.8 grams of methamphetamine, the appellant's possession of the bags with drug paraphernalia and drug residue in them, appellant's possession of recipes for making methamphetamine, and his possession of the money from the controlled drug buy lead this court to infer that the appellant was clearly aware of the presence of drugs in his home, that he had control over the drugs, and that he was aware the drugs were contraband. This court has no doubt that appellant had constructive possession of methamphetamine and that he had the intent to deliver it. We hold that the State met its burden of proof as to the charge of possession of methamphetaminewith intent to deliver.

The appellant argues that the State did not provide sufficient evidence that he had intent to deliver the marijuana that was found in his bedroom. However, appellant admitted to police that the marijuana was his. It appears that the appellant is attempting to rebut the presumption created by the amount of marijuana found by arguing that the marijuana was for his personal use. Appellant cites an unpublished case in support of his argument that the amount found could be used for personal use. However, unpublished cases cannot be cited as authority. Ark. Sup. Ct. R. 5-2(d). Appellant gave no testimony as to his personal use of marijuana and offers no other evidence to support this argument. Appellant also argues that the presumptive amount alone is not sufficient evidence to support a conviction for possession with intent. The State presented sufficient evidence that the appellant was in possession of marijuana in an amount that automatically created a presumption of intent to deliver. We hold that the appellant's arguments are without merit and that the amount of marijuana in appellant's possession was sufficient to support a conviction for possession of marijuana with intent to deliver. See Owens v. State, 325 Ark. 110, 116, 926 S.W.2d 650, 653 (1996).

Appellant argues that the State failed to provide sufficient evidence to support his conviction for possession of drug paraphernalia. He maintains that the State provided no evidence to establish a nexus between the drugs in the house and the paraphernalia found in the bag outside of his house. Appellant claimed ownership of the bag containing the drug paraphernalia. The bag contained electronic scales that a North Little Rock detective testified were commonly used in the sale of illegal drugs. The bag also contained a pen and a straw with methamphetamine residue on them. Appellant does not challenge the sufficiency of the evidence in regard to the straw. Appellant argues that he had no knowledge of the paraphernalia in the bags and that the State must proveknowledge because of the joint occupancy of the residence. However, officers testified that appellant led them to the bag that was located outside of the residence. This court fails to see how a bag that was located outside of the house and was located at the direction of the appellant alone was under anyone else's control but the appellant's.

It is unlawful to possess drug paraphernalia. Ark. Code Ann. § 5-64-403(c)(1) (Repl. 1997). Drug paraphernalia includes anything that is used for preparing, packaging, injecting, ingesting, or inhaling controlled substances. Ark. Code Ann. § 5-64-101(v) (Repl. 1997). The scales found in this instance are of the type that are commonly used in the sale of drugs. They were found with other items that tested positive for the presence of methamphetamine. Although the items by themselves appear innocent enough, they were in fact combined with numerous other items that took them well out of the realm of innocent objects. The scales, pen, and straw found in the bag owned by the appellant are clearly drug paraphernalia. We hold that there is sufficient evidence to support the appellant's conviction for possession of drug paraphernalia.

Appellant's final conviction for maintaining a drug premises is also contested on the basis of insufficiency of the evidence. A person cannot knowingly maintain any dwelling for the purpose of using or obtaining controlled substances. Ark. Code Ann. § 5-64-403(a)(3) (Repl. 1997). Not only did the police find all the aforementioned drugs, weapons, and drug paraphernalia at the appellant's residence, the police also executed a controlled buy at the residence that same day. An informant was given five twenty-dollar bills. He entered the home with the money and exited the home with methamphetamine. The five twenty-dollar bills were located in the $2920 the police found in the dresser in the appellant's bedroom. The appellant claimed ownership of the money. The evidence of the controlled buy and the other evidence that was discovered in appellant's home sufficiently establish that the appellant knowingly maintained a drug premise. We hold the trialcourt was correct in denying the appellant's motion for a directed verdict on this conviction and the other four convictions.

Appellant's final argument is that the trial court erred in denying his motion to suppress. Appellant has three points to his argument: (1) that the affidavit for a search warrant did not have sufficient indicia of the reliability of an informant; (2) that the police violated the "knock and announce" requirement; and (3) that the statements he made to the police should be suppressed because he was not informed of his rights.

In reviewing a trial court's denial of a motion to suppress, this court will make an independent examination of the issue on the totality of the circumstances. Stanton, supra at 594, 42 S.W.3d at 477 (citations omitted). The trial court's decision will only be reversed if it is clearly against the preponderance of the evidence. Id. The determination of the credibility of any witnesses will be left to the discretion of the court. Slater v. State, 76 Ark. App. 365, 65 S.W.3d 481 (2002).

We will first address the validity of the affidavit presented for the search warrant. Appellant states the law in regard to evidence of the reliability of an informant, but fails to make an argument concerning the informant's reliability used in the police affidavit. We will not make appellant's argument for him. Nevertheless, we offer the following facts and reasons for agreeing with the State that the affidavit was valid.

The police affidavit that was presented to the magistrate for the search warrant contained more than a statement of a confidential informant. It contained information that Detective Paul Woodruff of the Harrison, Arkansas police department informed the affiant, North Little Rock Police Detective Chuck Vereen, that Larry Howard had purchased between twenty-five and thirty ounces of methamphetamine and five to ten pounds of marijuana from the appellant. The affidavit also set forth the facts of a controlled buy that police executed at appellant's residence, and that theinformation contained in the affidavit occurred within the last forty-eight hours. None of this information was based on the testimony of a confidential informant. Detective Woodruff gave his name to law enforcement and his identity was also made known in the affidavit. The controlled buy was observed by police and the facts set forth in the affidavit. There was no testimony provided by this informant other than what the police directly observed. Our supreme court has consistently held "that an affidavit for a search warrant need not contain facts establishing the veracity and reliability of non confidential informants such as police officers, public employees, victims, and other witnesses whose identity is known." Stanton, supra at 594, 42 S.W.3d at 478 (citations omitted). "No additional support for the reliability of witnesses is required where the witness volunteered the information as a good citizen and not as a confidential informant whose identity is to be protected." Id. (citations omitted). We find that the State was not required to prove the veracity and reliability of non-confidential informants, and therefore the affidavit for a search warrant of appellant's home was valid.

The appellant further argues that the police failed to "knock and announce" as required by law. The appellant states the law on "knock and announce" procedures in his brief, although failing to cite the case of which he quoted from verbatim. In Syakhasone v. State, 72 Ark. App. 385, 39 S.W.3d 5 (2001), the case quoted by appellant without citation, this court stated that the Fourth Amendment protects an individual's legitimate expectation of privacy against unreasonable searches and seizures. Id. at 390, 39 S.W.3d at 8; (citing Wilson v. Arkansas, 514 U.S. 927 (1995)). If the appellant owns or is in possession of the property, he has standing to challenge the legality of the search. Syakhasone, supra.

In the case at bar, the police did not apply for a "no-knock" entry in the warrant affidavit, and there were no circumstances that would have justified a "no-knock" entry. Id. Therefore, theywould have been required to "knock and announce" prior to entering the residence, even with a valid warrant. The officers testified at trial that they knocked on the front door, yelled, "Police, Search Warrant," waited anywhere from a few seconds to "less than a minute," knocked again, and upon receiving no reply from within the house, broke down the door. Appellant argues that the time that the officers waited before forcibly entering the home was unreasonably short. Since a "no-knock" entry was not an option for the police in the case at bar, we will only address the issue of the reasonableness of the amount of time between the officers knocking and announcing their presence and their entry into the home.

Appellant testified that he never heard anyone knock on his front door. His ex-son-in-law, Jason McDonald, also testified that he never heard anyone knock on the front door. As we have stated before, the trial court is in a much better position to judge the credibility of witness testimony than the reviewing court. Hickson v. State, 50 Ark. App. 185, 901 S.W.2d 868 (1995). We will defer to the trial court's assessment of credibility of the appellant, his ex-son-in-law, and the police officers. After examining the totality of the circumstances, we hold that the police met the requirements of the "knock and announce" procedure prior to gaining entry into the residence.

An exact waiting period between knocking, announcing, and entering has not been established by any court. The court in Mazepink, 336 Ark. 171, 987 S.W.2d 648 (1999) held that an interval of only two to three seconds was not reasonable. However, the Mazepink court also held that "the reasonableness of the time interval would be decided on a case-by-case basis." Id. at 183, 987 S.W.2d at 653. Appellant argues that the "few seconds" the officers testified to waiting did not satisfy the reasonableness requirements set forth in Mazepink. However, the officers also testified that the time interval between knocking, announcing, knocking again, and entering was "definitely less than a minute." As the State points out, this interval can be anywhere between three secondsand fifty-nine seconds. In reviewing the totality of the circumstances, we are compelled to say that the officers waited up to fifty-nine seconds before forcibly entering the residence. There are many courts in other jurisdictions that have held that a reasonable amount of time is anywhere between seven seconds and twenty seconds. See Mazepink at 184, 987 S.W.2d at 654.

There is also a second difference between the present case and Mazepink and Syakhasone. In the present case, all the officers testified that there were two knocks on the front door. The officer testified that he knocked, yelled "Police, Search Warrant," waited anywhere from a few seconds to less than a minute, and knocked again. Only after the second knock went unanswered, did the police obtain forcible entry into the home. The fact that the officers waited long enough to execute a second knock gives credibility to their testimony that they waited a reasonable amount of time before entering the home of appellant. We hold that the trial court was correct in ruling that the police did not violate the "knock-and-announce" requirements under the Fourth Amendment.

Lastly, appellant argues that his statements to the police should have been suppressed because he was not informed of his right to remain silent prior to making the incriminating statements. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Appellant presents case law reviewing the voluntariness of the defendant's waiver of his rights and considering the totality of the circumstances surrounding that waiver. However, appellant is not raising the issue that he involuntarily waived his rights, but that he was not informed of them at all. There is no "totality of the circumstances" to review, only the credibility of the witnesses who testified.

Appellant relies on his testimony and that of Jason McDonald, his ex-son-in-law, that he was not informed of his rights. The police detective testified that he did in fact read the appellant his rights prior to any statements made to the officers. Once again, credibility of the witnesses is for the trier of fact to decide. Slater, supra. The trial court found that the officers were more crediblewitnesses than the appellant and his ex-son-in-law. We will not second guess the trial court on issues of credibility without evidence of an abuse of discretion. Hickson, supra. We hold that the trial court did not err in denying the appellant's motion to suppress his statements to the police.

We affirm the trial court's decision denying the appellant's motion for directed verdict and denying his motion to suppress.

Stroud, C.J., and Bird, J., agree.