Wilford Chambers v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

WILFORD CHAMBERS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-921

March 6, 2002

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[NO. CR-2000-458]

HON. JOHN S. PATTERSON,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged with possession of marijuana. He filed a pre-trial motion to suppress introduction of the marijuana, which was denied. After a jury trial, he was convicted of possession of marijuana, and this appeal followed.

For reversal, appellant contends that the trial court erred in denying his motion for a directed verdict and in refusing to suppress the marijuana. We find no error, and we affirm.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). Consequently, we must first address this issue because the Double Jeopardy Clause precludes a second trial when a judgment of conviction is reversed for insufficient evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), citing Burks v. United States, 437 U.S. 1 (1978). We disregard any alleged trialerrors in determining the sufficiency question, because to do otherwise would result in avoidance of the sufficiency argument by remanding for retrial on other grounds. Harris, supra.

In determining the sufficiency of the evidence, we view it in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id.

In the present case, appellant contends that his conviction for possession of marijuana is not supported by substantial evidence because the State failed to prove that marijuana is a controlled substance, and because the trial court was not authorized to take judicial notice of that fact. We do not agree. Our supreme court addressed this issue in Washington v. State, 319 Ark. 583, 892 S.W.2d 505 (1995), where it said:

Our law is well-established that courts may take judicial notice of agency regulations adopted pursuant to law, and that it is not necessary to formally introduce the regulations into evidence for the court to do so. See, e.g., Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989) (citing State v. Martin and Lipe, 134 Ark. 420, 204 S.W. 622 (1918) and Seubold v. Fort Smith Special Sch. Dist., 218 Ark. 560, 237 S.W.2d 884 (1951)). Arkansas courts have long taken judicial notice of the State Health Department's regulations classifying controlled substances into particular schedules. See, e.g., Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1982). As observed in Johnson, the Director of the State Health Department is given

authority to designate controlled substances pursuant to Ark. Code Ann. § 5-64-201 (Repl. 1993). Section 5-64-201 requires the Director's schedules to be adopted in accordance with the Arkansas Administrative Procedure Act, Ark. Code Ann. §§ 25-15-201 to -214 (Repl. 1992 & Supp. 1993). Thus, the schedule of controlled substances is a regulation promulgated by a state agency pursuant to statute and in accordance with state procedural requirements. The schedule or agency regulation is a part of the substantive law the trial court must determine and then apply to the facts of the case before it. See generally, 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence ¶ 200[02] (1994).

319 Ark. at 585, 892 S.W.2d at 505-06.

Next, appellant contends that the trial court erred in denying his motion to suppress the introduction of marijuana found during a search of appellant's person. In reviewing a trial court's denial of a motion to suppress, we make an independent examination of the issue based on the totality of the circumstances, and we will reverse only if the trial court's ruling was clearly against the preponderance of the evidence. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001).

In the present case, the record shows that appellant was a passenger in an automobile that was being driven on the wrong side of the road. The automobile was stopped by a police officer, who testified that he detected an odor of burning marijuana as he approached the vehicle. The officer testified that both the driver and the appellant admitted that they had been drinking and smoking marijuana, but denied having any marijuana in their possession. The officer further testified that he asked for permission to search the driver and appellantfor marijuana, that permission was granted by each, and that he discovered a marijuana cigarette on appellant's person.

For reversal, appellant contends that the officer had no cause to believe appellant committed any offense; that his detention was therefore illegal; and that the results of the search therefore should have been suppressed. We do not agree. The initial stop was justified by the officer's observation that the vehicle was being driven on the wrong side of the road, in a lane reserved for oncoming traffic. Furthermore, there was evidence that, upon approaching the vehicle after the stop, the officer smelled a moderately-strong odor of burning marijuana; that appellant's demeanor, appearance, and reactions led the officer to believe that appellant was under the influence of marijuana; and that appellant admitted to having recently smoked marijuana. Given that the mere smell of marijuana or its smoke emanating from a vehicle gives rise to reasonable suspicion to detain the occupants to determine the lawfulness of their conduct, Phillips v. State, 53 Ark. App. 36, 918 S.W.2d 721 (1996), to search the vehicle, Lopez v. State, 29 Ark. App. 145, 778 S.W.2d 641 (1989), and to arrest some or all of its occupants, depending upon the particular circumstances, Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997), we have no hesitation in holding that the police officer in the present case had reasonable cause to detain appellant.

Affirmed.

Stroud, C.J., and Vaught, J., agree.