Tyrone W. Smith v. State of Arkansas

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ar01-877

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION III

TYRONE W. SMITH

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR01-877

FEBRUARY 13, 2002

APPEAL FROM SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR91-570/571/572, CR96-299-B, CR98-612]

HONORABLE MARK HEWETT, CIRCUIT JUDGE

AFFIRMED

Tyrone Smith appeals from the revocation of his suspended imposition of sentences. After a revocation hearing, the trial court found by a preponderance of the evidence that Smith had committed the offense of possession of cocaine and revoked Smith's suspended sentences, which were also drug related. The trial court sentenced Smith to four and a half years in the Arkansas Department of Correction and two years and seven months of suspended imposition of sentence. On appeal, Smith argues that the trial court erred by admitting a State Crime Lab report into evidence over his objection that the State failed to establish a sufficient chain of custody, and that there was insufficient evidence to show he possessed cocaine. We affirm.

According to the evidence presented at the hearing, Fort Smith police officers were executing an arrest warrant for a female parole violator at a Fort Smith motel. After entering the motel room, the officers first observed two individuals in the bedroom area, then opened the bathroom door and observed Smith standing in front of the commode facing toward the sink. When one officer enteredthe bathroom and told Smith to show his hands, Smith immediately dropped his left hand down beside him and when asked again to show his left hand, he refused. Smith was then taken out of the bathroom and patted down for weapons.

The female who was wanted for the parole violation was then located hiding in the bathroom's shower. The bathroom did not have a working light, and the officer initially searched it using a flashlight and did not find anything. Approximately ten to fifteen minutes later, an officer searched again, using a flashlight, and found three rocks made of an off-white substance in a baggy on top of the toilet and seven more of these rocks around the base of the toilet. The officer testified that Smith would have been standing directly on top of the rocks found around the toilet. Smith was arrested and searched, but no contraband was found on him. The crime lab report indicated that the substances found in the bathroom were crack cocaine.

Smith testified that he had stopped by the motel room to use the bathroom, that he had just gone into the bathroom when the police came in the room, and that he was getting ready to unzip his pants and had not lifted up the toilet seat yet. Smith testified that when he was asked show his hands, he instead reached to get his billfold with his left hand and gave it to the officers. Smith testified that the reason he did not see the cocaine in the bathroom was because he did not look at the toilet seat. On appeal, Smith first argues that the trial court erred in allowing the State to present evidence when the State failed to prove a chain of custody sufficient to authenticate the evidence. Smith contends that the chain of custody shown by the State was insufficient because the bar code number on the evidence submission form did not match the bar code number on the crime lab report. The bar code number on the evidence submission form was "G0001352," while the number on the crime lab report was "G0001325," so that the last two digits were transposed. Smith objected to the admission of the lab report, and after further examination of the officer as to thechain of custody and the circumstances surrounding the submission of the cocaine to the crime lab, the trial court allowed the evidence.

The purpose of establishing a chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary for the state to eliminate every possibility of tampering. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Id; Guydon v. State, supra. Proof of the chain of custody for interchangeable items like blood or drugs needs to be more conclusive than for other evidence. Crisco v. State, supra. On review, the appellate court will not reverse a ruling regarding the admission of evidence absent an abuse of discretion, because such matters are left to the sound discretion of the trial court. Guydon v. State, supra.

The rules of evidence are not applicable in revocation proceedings. Ark. R. Evid. 1101; Tipton v. State, 47 Ark. App. 187, 887 S.W.2d 540 (1994). Because Smith's chain of custody argument is based on Ark. R. Evid. 901, the issues raised by him are not as relevant in this situation. However, even addressing the merits of Smith's argument, the trial court did not abuse its discretion in admitting the State Crime Lab report.

Officer Eric Williams testified that he collected the ten off-white rock substances from around the commode at the motel and placed them into an evidence bag as one group. The evidence bag remained with Williams until he placed it in an evidence locker in a plastic bag that was sealed at both ends. After sealing the bag, an evidence code was placed on the bag and it was deposited into a locked locker. Williams then filled out two forms, one documenting that the evidence wasbeing placed into the locker, and one requesting that the evidence be submitted to the state crime lab. The crime lab submission form described the evidence as "ten off-white rocks in plastic wrapping." The State Crime Lab report admitted at trial described the evidence by its weight and confirmed that it contained a cocaine base. The bar code numbers on the evidence submission form and the crime lab report had the last two numbers transposed; however, the name of the suspect, Alim Hakin, which Smith was also known as, was the same on both forms. Williams's name is also listed on both forms as the submitting officer. The date on the submission form was March 19, and the date it was received in the crime lab was listed as March 22. Williams testified that he did not make any other submissions to the crime lab dealing with Smith.

This testimony demonstrates within a reasonable probability that the evidence had not been tampered with and that it was authentic. The difference in the bar code numbers is a minor uncertainty that goes to its weight, not to its admissibility. See Guydon v. State, supra. Smith argues that Crisco v. State, supra, is directly on point. In Crisco, the Court found that the trial court erred in admitting evidence where the police officer described it as an "off-white powder substance" and the forensic chemist described it as "one triangular piece of plastic containing a tan rock-like substance." The Court found that this was a significant difference in the descriptions of the evidence. Here, however, there is no obvious disparity in the descriptions of the evidence submitted. Although Smith argues that a disparity exists because Williams submitted ten off-white rocks and the crime lab report only lists one item of evidence by its weight, Williams testified that he submitted the rocks as a group, not as individual items. The other information, such as the name of the suspect, the name of the officer, and the date, is also consistent between the two forms. Thus, the trial court did not err in admitting the State Crime Lab report into evidence.

Smith also argues that there was insufficient evidence presented to show that he was inpossession of the contraband. To revoke a suspended sentence, the trial court must find by a preponderance of the evidence that the defendant failed to comply with the conditions of his probation. Carruthers v. State, 59 Ark. App. 239, 956 S.W.2d 201 (1997). On appeal, the trial court's decision that the defendant failed to comply with the conditions of his suspended sentence will not be reversed unless it is clearly against the preponderance of the evidence. Id.

It is undisputed that the contraband was not found on Smith's person, but possession of a controlled substance does not 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).

Smith argues that under the facts of this case, the holding in Mayo v. State, supra, is controlling. In Mayo, police officers found the appellant and another person in a living room, and the appellant was sitting on a couch next to a coffee table where there were several partially smoked marijuana cigars. No contraband was found on the appellant, and the appellant did not own the house. The appellant testified that he had stopped by to watch television and that he saw the marijuana, but that it was not his and he had not smoked it. The court found that the State did notprove that the appellant exercised control over the contraband. Also, in Mosley v. State, 40 Ark. App. 154, 844 S.W.2d 378 (1992), the court reversed a conviction where the defendant was sitting on a couch, which had cocaine underneath the cushions, with two other people, and there were other persons in the room. The court stated that the couch was not under the exclusive control of the defendant, and that the State did not show that he exercised care, control, or management of the contraband or that he knew it was contraband. Id.

However, Mayo and Mosley involved criminal trials and were thus subject to a higher burden of proof than for a revocation hearing as in Smith's case. The complete constructive-possession analysis does not apply to revocation proceedings, and evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). In Palmer, the court found that the preponderance of the evidence supported the revocation of defendant's suspended sentence where a pill bottle containing contraband was found on the floorboard of the vehicle in which defendant was a passenger with two others. The court found circumstantial evidence of defendant's possession of the contraband due to the early morning hour, the fact that the occupants ducked down and gave inconsistent statements to police, the fact that they were in a high crime area, and the fact that defendant had a prior conviction for a similar offense. Id.

We find the facts in this case more compelling than the facts in Palmer, supra. Here, although Smith was present in the motel room with three other people, and another person was found hiding in the shower of the bathroom where the cocaine was found, Smith's presence in the darkened bathroom, his proximity to the contraband found there, his refusal to show his hands despite two commands by a police officer, and his prior drug convictions provide sufficient evidence to support the trial court's finding that he possessed cocaine in violation of a condition of hissuspended sentence.

Affirmed.

Bird and Pittman, JJ., agree.

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