Clayton L. Davis v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION III

CLAYTON L. DAVIS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-417

NOVEMBER 6, 2002

APPEAL FROM SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR98-608 & NO. CR2000-1068]

HONORABLE JAMES R. MARSCHEWSKI, CIRCUIT JUDGE

AFFIRMED

Appellant Clayton Davis appeals from the revocation of his suspended sentences. The trial court found by a preponderance of the evidence that Davis violated the terms and conditions of his suspended sentences by possessing marijuana and sentenced him to two years' imprisonment and an additional eight years of suspended imposition of sentence. On appeal, Davis challenges the sufficiency of the evidence supporting the revocation of his suspended sentences. We affirm.

On December 23, 1998, Davis pled nolo contendere to the charge of possession of drug paraphernalia and received three years of suspended imposition of sentence. Davis also pled nolo contendere on July 6, 2001, to the charges of possession of methamphetamine and possession of marijuana with intent to deliver, for which he received five years of suspended imposition of sentence. Two of the conditions of Davis's suspended sentences were that he should not violate any federal, state, or municipal law, and that he should not possess any controlled substance prohibited by law. The State filed a petition to revoke Davis's suspended sentences on November 1, 2001, alleging that Davis had committed the offense of possession of marijuana on October 23, 2001.

At the revocation hearing, Officer Franklin Petray testified that he stopped Davis's vehicle on October 23, 2001, because Davis was speeding. A passenger, Cathy Buckner, was also in the vehicle. Petray testified that Davis seemed very nervous and that he would not make eye contact. After Davis gave his consent to a search of the vehicle, Petray searched a backpack on the passenger side and found a controlled substance and drug paraphernalia, including syringes. Petray testified that he also found two more syringes in the trunk of the vehicle. Buckner was arrested for possession of a controlled substance, and Davis was arrested for carrying a prohibited weapon, a baseball bat found underneath the driver's seat. Petray testified that he did not charge Davis with possession of the drug paraphernalia. Petray also stated that Buckner and Davis were patted down for weapons before they were transported to the Van Buren Police Department, but nothing illegal was found.

Officer Louis Wallman testified that he transported Davis and Buckner from the Van Buren Police Department to the Crawford County Detention Center. Upon arriving at the detention center, Wallman had both arrestees exit the vehicle on the left side. Buckner exited the vehicle first, and Davis followed. Wallman testified that as Davis was exiting the vehicle, Davis stated that he had dropped his pen and reached back into the police vehicle to retrieve it. Wallman testified that he then saw Davis place a clear plastic baggie underneath the driver's seat. Wallman stated that when he pulled the seat up, he found the baggie in the same area where Davis had reached to retrieve his pen. Prior to transporting Davis to the detention center, Wallman testified that he had conducted a routine vehicle and equipment check and that there was no contraband in his vehicle at that time. After finding the plastic baggie, Wallman conducted a field test on the substance, and he testified that the test came back positive for marijuana.

Davis argues that the trial court erred in revoking his suspended sentences because there wasinsufficient evidence to show that he was in possession of the marijuana. 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 suspension. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). 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. Because the State's burden in revocation proceedings is only a preponderance of the evidence, evidence that is insufficient to support a criminal conviction may be sufficient to revoke a suspended sentence. Id. Moreover, because a determination of a preponderance of the evidence depends on questions of credibility and weight to be given testimony, deference is given to the trial court's superior position in this regard. Id.

It is not necessary to prove actual or physical possession in order to prove that a defendant is in possession of a controlled substance; constructive possession may be sufficient. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). However, in the present case, a constructive-possession analysis is unnecessary, as Officer Wallman testified that he saw Davis place a baggie, containing what was later determined to be marijuana, under the seat. Wallman then retrieved the baggie from this same area. This evidence indicates that the marijuana found in the vehicle was in the physical possession of Davis.

Davis contends that he did not have exclusive access to the contraband and that it was "just as likely" that Buckner had possession of the contraband; however, this argument ignores Wallman's testimony that he witnessed Davis place the contraband under the seat. Davis also argues that the trial court erred in considering evidence of the drug paraphernalia found in the trunk of his vehicle. However, Davis did not object to the admission of this evidence at the hearing, and thus, he is precluded from raising it for the first time on appeal. Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196(2001). Even if we were to address his argument, Davis cannot show prejudice from the consideration of this evidence, as the testimony of Officer Wallman alone clearly supports the decision of the trial court. See id. (stating that an appellate court will not reverse absent a showing of prejudice to defendant). A preponderance of the evidence supports the trial court's finding that Davis violated the terms and conditions of his suspended sentences, and we affirm.

Affirmed.

Stroud, C.J., and Hart, J., agree.