Michael Slate DePriest v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CACR02-763

June 25, 2003

MICHAEL SLATE DePRIEST AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR01-702]

V. HON. WILLARD PROCTOR, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Appellant was convicted of being a felon in possession of a firearm and was sentenced as a habitual offender to twenty years in the Arkansas Department of Correction with ten years suspended. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j)(1), appellant's counsel has filed a motion to withdraw as counsel, along with an accompanying brief, alleging that there is no merit to this appeal. In accordance with Rule 4-3(j)(2), appellant has filed one point for reversal that he wishes the court to consider. The State agrees that there is no merit to the appeal, and has filed a brief addressing the point raised by appellant. Based on our review of the record, we grant counsel's motion to withdraw and affirm appellant's conviction and sentence.

The facts of this case are as follows. The State alleged that on the evening of January16, 2001, appellant committed the crimes of aggravated assault against Gary Grimmett and of possession of a firearm by certain persons (a felon). At that time, appellant was living with his maternal great-grandmother, Ms. Rushing, in her home on Roberts Road in Ferndale, Arkansas. During the trial, Gary Grimmett, who lived with appellant's mother, Donna DePriest, testified that he and Donna went to Ms. Rushing's home to inform appellant that Ms. Rushing no longer wanted him living there. According to Grimmett, appellant was not home when they first arrived. However, upon returning, appellant appeared not to recognize him or Donna. Grimmett claimed that appellant subsequently appeared with a gun. Grimmett could not remember whether appellant pointed the gun straight at him, but stated that he, Donna, and Ms Rushing quickly left the home by vehicle. Grimmett claimed to have heard a gunshot as they were leaving.

Rebecca Clayton, appellant's maternal aunt who also lived on Roberts Road, testified that on the evening of January 16, 2001, she heard a gunshot. Shortly thereafter, she received a telephone call from Ms. Rushing. Based on this conversation, she met Donna, Grimmett, and Ms. Rushing at the end of the road, where they all left by vehicle to get to a pay phone to call the police.

Deputy Carl Minden, one of the officers that investigated this incident, testified that after he and the other officers arrived at Ms. Rushing's home, appellant was Mirandized and then asked whether there were any weapons in the home; specifically, whether there was a shotgun. According to Minden, appellant instructed the officers where the gun could be found, and appellant admitted to pointing a gun at his family and firing a round of ammunition in the air because he was angry with them. Minden also stated that "a spent.410 cartridge" was recovered at the home. Deputy Vernon McNew, another investigating officer, testified that he was the officer that actually retrieved the gun, which was found inside Ms. Rushing's bedroom closet, and recovered the shotgun shell, which was discovered in the driveway. McNew also stated that Ms. Rushing was upset that the gun was going to be held as evidence and made the statement, "that's my weapon, you can't take my weapon."

After the State rested its case, appellant moved for directed verdicts as to both offenses, which were denied. Thereafter, appellant and Donna DePriest testified on his behalf. During appellant's testimony, he acknowledged that he knew there were guns inside Ms. Rushing's home, but he asserted that the guns were hers and not his. Appellant also denied having a gun or pointing a gun at Grimmett on January 16. Appellant then provided testimony about his prior felony convictions.

Donna DePriest testified that she did not see appellant with a gun on the evening of the incident. Donna explained that she, Grimmett, and Ms. Rushing were sitting on the porch when appellant returned home. Appellant appeared not to recognize her, mumbled something about a knife or gun, walked inside the home, and locked the door behind him, locking them out. Donna claimed that she believed appellant was suicidal and that she left the home because she could not get to appellant through the locked door and she did not want Ms. Rushing, her ninety-three year old grandmother, to have "to witness something that horrible." At the close of the evidence, appellant renewed his motions for directed verdict, which again were denied. Thereafter, the trial court found appellant not guilty of aggravated assault, but guilty of being a felon in possession of a firearm.

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). When a defendant challenges the sufficiency of the evidence, we review the evidence in the light most favorable to the State, considering only the evidence that supports the guilty verdict, and will affirm the conviction if it is supported by substantial evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). Evidence is substantial, whether direct or circumstantial, if it is of sufficient force and character that, with reasonable certainty, it will compel a conclusion one way or the other and pass beyond mere speculation or conjecture. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). However, for circumstantial evidence to be substantial it must exclude every other reasonable hypothesis consistent with a defendant's guilt and inconsistent with any other reasonable conclusion, which is a question of fact to be determined by the trier of fact. Harshaw v. State, 348 Ark. 62, 71 S.W.3d 548 (2002).

Arkansas Code Annotated section 5-73-103(a) (Repl. 1997) provides that it is unlawful for a person who previously has been convicted of a felony to be in possession of a firearm. Ark. Code Ann. § 5-73-103(a)(1) (Repl. 1997). To sustain a conviction for possession of a firearm, the State had to show (1) that appellant had a prior felony conviction, and (2) that appellant either physically possessed a firearm or that he was in constructive possession of it, that is, appellant had control or the right to control the firearm. Darrough v. State, 330 Ark. 808, 811, 957 S.W.2d 707, 708 (1997). Constructive possession can be implied where the contraband was found in a place immediately and exclusively accessible to the accused and subject to his control. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991).

In the instant case, appellant testified to having had prior felony convictions. Appellant also testified that he was aware that there were guns in the home, and he directed the police to where the guns were located. The record further reveals that Grimmett testified to seeing appellant with a gun; that both Grimmett and Clayton claimed to have heard a gunshot on the evening of the incident; that Officer Minden asserted that appellant admitted to pointing a gun at his family and firing it into the air; and that a shotgun shell was recovered from the driveway of Ms. Rushing's home. Although appellant denied possessing a gun, the trial court was not bound to accept or believe his account of the events. Sanders v. State, 76 Ark. App. 104, 61 S.W.3d 871 (2001). Accordingly, we hold that there was substantial evidence to support appellant's conviction; thus, the trial court did not err in denying appellant's motion for a directed verdict.

Appellant raised one pro se point for reversal, contending that he was "wrongly accused and very abused and mistreated by [his] family." This argument is without merit. The trier of fact, in this case the trial court, resolves any conflicts in testimony and determines the credibility of the witnesses, and its conclusion on credibility is binding on the appellate court. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992). Here, it appears that the trial court found the testimony about the facts surrounding the September 16 incident given by Grimmett, Clayton, and Officer Minden more credible than that of appellant and his mother. Therefore, from a review of the record and counsel's brief, we conclude that there has been full compliance with Arkansas Supreme Court Rule 4-3(j)(1) and that the one ruling adverse to appellant does not provide a meritorious ground for reversal. Consequently, we grant counsel's motion to withdraw and affirm appellant'sconviction.

Affirmed.

Gladwin and Bird, JJ., agree.