Michael J. Venis v. State of Arkansas

Annotate this Case
ar02-920

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

MICHAEL J. VENIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-920

January 28, 2004

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

CR2001-401-1, CR2001-505-1

HON. TOMMY J. KEITH, JUDGE

AFFIRMED

Larry D. Vaught, Judge

A jury convicted appellant Michael Venis of possession of pseudoephedrine with intent to manufacture methamphetamine and manufacturing methamphetamine, and the trial judge sentenced him to a total of thirty-one years' imprisonment. He raises five points on appeal: (1) whether the trial court abused its discretion in allowing the State to introduce evidence of an arrest of appellant that occurred subsequent to the offenses charged at trial; (2) whether the trial court's denial of appellant's motion to suppress was against the preponderance of the evidence; (3) whether the trial court erred when it allowed the State to introduce a photograph of appellant in jail clothing; (4) whether the trial court abused its discretion when it allowed the State to introduce evidence of a subsequent arrest of appellant during the sentencing phase of the bifurcated trial; (5) whether the trial court's denial of appellant's motion for a new trial was clearly erroneous and thus reversible error. We find no error and affirm.

On March 26, 2001, appellant's vehicle was stopped for displaying fictitious tags, and it was discovered that there was an outstanding warrant for his arrest. He was taken into custody, and during an investigatory search of the vehicle officers found 216 tablets of pseudoephedrine, bottles of hydrogen peroxide, Liquid Fire starting fluid, and four bottles of Heet anti-freeze. Appellant was charged with possession of pseudoephedrine with intent to manufacture methamphetamine (Case No. CR2001-401-1).

On April 20, 2001, Bentonville police were alerted by a Wal-Mart loss prevention officer that two individuals had been observed buying items that could be used in the manufacture of methamphetamine. An officer arrived at the store prior to the reported individuals leaving, followed their vehicle, and stopped them for displaying fictitious tags. The occupants of the vehicle were identified as Brian Neisen and appellant. After questioning Neisen, the driver, the officer obtained consent to search the vehicle. Appellant was asked to step away from the vehicle and was arrested on an illegal weapons charge. The officer discovered items that could be used to manufacture methamphetamine and took both occupants to the Benton County Jail. Both appellant and Neisen were questioned and released without being arrested or charged, other than the weapons charge against appellant.

On May 2, 2001, the officer applied for arrest warrants for both appellant and Neisen based on the April 20, 2001 stop, and warrants for possession of pseudoephedrine with intent to manufacture methamphetamine were issued. On May 3, 2001, four officers went to the property upon which both appellant's and Neisen's trailers were located to serve the warrants. Appellant was taken into custody at his residence. While serving the warrants, items were discovered that led officers to apply for a search warrant for appellant's residence and the vehicles located around the trailer. The warrant was issued and executed on May 4, 2001, and items were seized that resulted in appellant being charged with manufacturing methamphetamine (Case No. CR2001-505-1).

Appellant's counsel moved to suppress evidence in both cases (Case No. CR2001-401-1 and Case No. CR2001-505-1), but suppression was waived in Case No. CR2001-401-1. After a suppression hearing and the submission of the State's brief,1 appellant's motion to suppress in Case No. CR2001-505-1 was denied. The two cases were joined for trial.

Prior to the trial, the State moved to introduce evidence of a subsequent arrest of appellant for manufacturing methamphetamine2 at trial. An unrecorded pre-trial conference was held on the State's motion, and the evidence was admitted at trial over the objection of appellant. A photo of appellant in striped jail clothing was also admitted over objection by appellant.

Appellant was convicted by a jury on charges in both cases. Subsequent-event testimony was admitted at sentencing over objection by appellant's counsel. The jury imposed a sentence of twenty-five years for the manufacturing conviction and six years for the possession of pseudoephedrine conviction.

Defendant moved for a new trial based on ineffective assistance of counsel. His motion was denied subsequent to a hearing on the motion, and he was formally sentenced to thirty-one years by the trial judge. This appeal followed.3

I. Admission of Evidence Related to Subsequent Arrest

The supreme court has held that trial courts are afforded wide discretion in evidentiary rulings. See McCoy v. State, __ Ark. __, __ S.W.3d __ (October 9, 2003). Specifically, in issues relating to the admission of evidence under Ark. R. Evid. 401, 403, and 404(b), a trial court's ruling is entitled to great weight and will not be reversed absent an abuse of discretion. Id. This Court, likewise, will not reverse absent a showing of prejudice. Id.

Appellant argues that the trial court abused its discretion when it allowed the State to introduce evidence that appellant was arrested for manufacturing methamphetamine on July 5, 2001, during his trial for possession of pseudoephedrine with intent to manufacture methamphetamine (related to the March 26, 2001 arrest) and manufacturing methamphetamine (related to the May 4, 2001 arrest). He claims that the State offered the testimony solely for the purpose of establishing that he committed the subsequent offense separate and apart from those charged at trial, and that the subsequent arrest was not independently relevant to a material issue in the State's case. Appellant asserts that the subsequent offense was not factually intertwined with the offenses charged and that the unfair prejudice that resulted from the introduction of the evidence substantially outweighed the probative value. He claims the trial court erred by allowing the improper character evidence to show that he was a man of bad character who often manufactured methamphetamine.

This argument is without merit. Under Rule 404(b) of the Arkansas Rules of Evidence, evidence of other crimes may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). If the evidence of another crime, wrong, or act is relevant to show that the offense with which the appellant is accused actually occurred and it is not introduced merely to prove bad character, it will not be excluded. Id.

Appellant objected to the evidence regarding his subsequent arrest under Ark. R. Evid. 404, and the trial court determined that the matter had already been ruled upon by its grant of the State's pretrial motion to allow the evidence under Rule 404(b). The trial judge asked if he could caution the jury, and appellant agreed. See Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) (holding that under Rule 404(b), evidence that is relevant to main issue of case, in the sense of tending to prove some material point rather than to prove defendant is a criminal, may be admissible with proper cautionary instruction by court).

A person's intent or state of mind is seldom capable of proof by direct evidence. See Barrett v. State, __ Ark. __, 119 S.W.3d 485 (2003). When a defendant is charged with possession with intent to deliver, evidence of prior drug sales, if not too remote in time, are admissible to show intent. See Owens, supra. Also in Owens, testimony was allowed as relevant as to whether the defendants were actually manufacturing methamphetamine, were using common household items in the manufacturing process, and whether they merely possessed the drug or possessed it with the intent to deliver. Likewise, in a case where the defendant was charged with possession of a controlled substance with the intent to deliver, evidence of subsequent instances where the defendant sold drugs was admissible under Rule 404(b) to show identity, intent, or lack of mistake. See Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).

In the instant case, the State was required to prove the elements of intent to manufacture with the pseudoephedrine that appellant possessed in March 2001. The State also had to prove that appellant knowingly manufactured methamphetamine in May 2001, using ingredients from common household items that were recovered from his residence and that he did not intend to use those items in their customary, legitimate manner. The record supports that the paraphernalia used in manufacturing methamphetamine that was obtained at appellant's residence in July 2001 was admitted not to prove his bad character, but rather to prove that he intended to manufacture methamphetamine with the pseudoephedrine found in his vehicle in March 2001 and that he knowingly manufactured methamphetamine in May 2001. These were essential elements of the State's case, and we hold that the trial court did not abuse its discretion in determining that the evidence was independently relevant as to the issue of intent under Rule 404(b) and in so cautioning the jury. Accordingly, we affirm on this point.

II. Denial of Appellant's Motion to Suppress

Appellant argues that the officers' action of looking into a vehicle parked near his residence was an illegal warrantless search violating the Fourth Amendment of the U.S. Constitution and Article 2, §15 of the Arkansas Constitution. Appellant failed to identify any specific constitutional arguments or particular cases in support of his motion before, during, or after the hearing on his motion to suppress. Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the ground for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial. See Smith v. State, __ Ark. __, 118 S.W.3d 542 (2003). Appellant argued in his motion to suppress that the police should not have looked inside the vehicle and that the precursors seen in the floorboard tainted the search warrant and the evidence recovered pursuant to it. He did not file a brief in support of his motion, and never argued nor obtained a ruling regarding whether Article 2, § 15 of the Arkansas Constitution afforded him greater protection than the Fourth Amendment. To the extent that he is now attempting to acquire greater protection thereunder, he did not preserve the argument for appellate review.

Notwithstanding, we hold that the trial court did not err in denying appellant's motion to suppress the evidence under the Fourth Amendment. Our standard of review for a trial court's action granting or denying motions to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Love v. State, __ Ark. __, __ S.W.3d __ (Dec. 11, 2003). We give considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts. Id. Additionally, we must defer to the superior position of the trial judge to pass upon the credibility of witnesses. Id.

A search implicates the Fourth Amendment "when an expectation of privacy that society is prepared to consider reasonable is infringed." Walley v. State, __ Ark. __, __, 112 S.W.3d 349, 360 (2003). Even an ownership interest may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises. Id. Whether an area outside one's home is private as opposed to public, for purposes of the Fourth Amendment, is not controlled by the common law of property. Id. "What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection." Id. at __, 112 S.W.3d at 360 (quoting Katz v. United States, 389 U.S. 347, 351 (1957)). Neither a driveway nor a yard are per se private, and, for Fourth Amendment purposes, areas outside the confines of one's home are ordinarily considered public. Id.

In the suppression hearing, it was undisputed that officers were present on the property in question to serve arrest warrants for appellant and Neisen for possession of pseudoephedrine with intent to manufacture methamphetamine. The hearing focused on the effect of the officers observing items associated with the manufacture of methamphetamine in a vehicle between appellant's and Neisen's trailers.

The evidence presented supports the trial court's finding that the officers were lawfully present on the property when looking in the vehicles between the trailers. They entered that particular area of the commonly-owned property as part of a legitimate police investigation to determine if the subject of the warrant, specifically Neisen, was present and to secure the area. See Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000). When the officers were unable to locate Neisen in any of the three trailers, they walked around the vehicles on the property and looked into the cars to make sure he was not there. It was at that point that they observed the items at issue inside the car.

When police officers are legitimately at a location and acting without a search warrant, they may seize an object in plain view if they have probable cause to believe the object is either evidence of a crime, fruit of a crime, or an instrumentality of a crime. See Love v. State, supra. Although the officers did not have a specific warrant for the search of the vehicles, they did not unlawfully gain access to the location, as they were there serving the arrest warrants. They did not exceed the scope of their purpose for going onto the property, but simply observed the immediately recognizable material used for manufacturing methamphetamine in the vehicle while searching for Neisen. Appellant had no expectation of privacy in the area where the vehicle was located, and the officers observed the items in plain view in the floorboard of the vehicle; accordingly, the discovery of the items was not a result of a "search" as defined by the Fourth Amendment. The search warrant subsequently obtained by the officers, based on the affidavit that included the evidence discovered in the vehicle, was valid, and the motion to suppress was properly denied.

III. Introduction of Photograph of Appellant in Jail Clothing

Appellant argues that the trial court erred by allowing the State to introduce a photograph of him dressed in striped jail clothing. The photograph was taken subsequent to the July 2001 arrest and was admitted to show that appellant had what were believed to be red iodine stains on his hands at the time of his arrest. Appellant's counsel objected to the admission of the photo showing appellant from behind and from the waist down in jail clothing, but did not dispute that the picture was of appellant. When asked by the trial judge if he wanted the jury to be admonished, appellant's counsel declined and asked for no other relief. The State asserts that appellant's failure to request relief amounted to a waiver, which precludes reversal on this point.

Appellant argues that by introducing the photograph, the trial court effectively forced him to stand trial in front of the jury in prison garb in violation of the standards set forth in Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002), and Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002). Appellant's counsel objected, and on appeal he argues that "this single picture of appellant painted a picture to the jury of a criminal in continued custody charged with other crimes" and was highly prejudicial. The jury was aware that appellant had been arrested, multiple times, and that the photograph was taken at the time of his July 2001 arrest. Appellant has failed to demonstrate that he was prejudiced by the introduction of photograph or that it denied him the right to a fair and impartial trial. We affirm on this point.

IV. Introduction of Evidence of Subsequent Arrest During Sentencing

We note that the trial court has wide discretion in admitting evidence, including that presented during the penalty phase of the trial, and we will not reverse the trial court's ruling absent an abuse of discretion. See Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999). The State called Detective Best during sentencing, and he testified that a confidential informant brought one gram of methamphetamine to him after a controlled buy took place at appellant's residence, where the marked money, scales, and baggies used for distribution were found upon the execution of a search warrant. Appellant objected to the testimony as irrelevant because it is not included in the factors to be considered in sentencing pursuant to Ark. Code Ann. § 16-97-103 (Supp. 2001). Appellant contends this was an abuse of discretion, as the subsequent arrest occurred almost two months after the latest arrest charged at trial and was clearly not relevant to sentencing on the charges of which the jury had just found appellant guilty. He maintains that it was highly prejudicial to allow the State to bring in unadjudicated offenses to bolster its case during sentencing, in effect labeling appellant as a "meth cook and a drug dealer."

The State cites Davis v. State, 60 Ark. App. 179, 962 S.W.2d 815 (1998), in support of its argument that the evidence was properly admitted as either an aggravating circumstance or as relevant character evidence pursuant to Ark. Code Ann. § 16-97-103. We agree. While the subsequent drug-related activity had not been adjudicated, it was relevant to provide the jury with as much information as possible by demonstrating that appellant's repetitive criminal behavior posed a greater risk of harm to the community, and therefore deserved greater punishment than, perhaps, a one-time methamphetamine manufacturer. It was also relevant to appellant's prospects for rehabilitation in the determination of the appropriate punishment. We affirm on this point.

V. Denial of Appellant's Motion For a New Trial

Ineffective assistance of counsel issues may be addressed on direct appeal if they were first raised during trial or in a motion for a new trial, and if the facts and circumstances were fully developed either during trial or during other hearings conducted by the trial court. See Flores, supra. Appellant was convicted at trial on March 20, 2002, and raised the issue of ineffective assistance of counsel at his formal sentencing on April 8, 2002. His argument was treated as a motion for a new trial. He was appointed substitute counsel to pursue the motion, and a specific motion for new trial was filed. A hearing was held on appellant's motion, and the motion was denied. Therefore, the issue was properly preserved for direct appeal.

The State claims that several of appellant's arguments related to this point were not raised below as grounds in the motion for a new trial or developed at the hearing on the motion. Evidence regarding such a claim must be contained in the record, and the trial court must have been given the opportunity to rule on the evidence. See Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996). Likewise, we will not consider a claim of counsel's ineffectiveness unless the facts surrounding the claim were fully developed either during the trial or at another hearing. Id.

In reviewing a claim of ineffective assistance of counsel, the reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Scott v. State, __ Ark. __, __ S.W.3d __ (December 18, 2003). To rebut this presumption, appellant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In determining a claim of ineffectiveness, the totality of the evidence before the factfinder must be considered. Id. This court will not reverse the denial of post-convictionrelief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Id.

Appellant argues that trial counsel's failure to file a brief on the suppression issue fell below the objective standard of reasonableness and was prejudicial. Appellant mentioned this particular issue during the hearing on the motion; however, it was neither alleged as grounds in his motion for a new trial nor fully developed at the hearing. There is no evidence in the record that a brief was warranted or that it would have succeeded, see Dansby v. State, 350 Ark. 60, 84 S.W.3d 857 (2002); accordingly, this argument is without merit.

Next, appellant alleges that counsel failed to make a good record at the suppression hearing, failed to file a response to the State's motion to allow Rule 404(b) evidence, and failed to object to hearsay evidence and Rule 404(b) evidence. None of these arguments were alleged in appellant's motion for a new trial or developed below at the hearing. Because the trial court did not consider or rule on these issues, we decline to review them. See Dodson, supra.

Appellant also claims that counsel failed to call witnesses at the suppression hearing, trial, and sentencing that might have been able to provide information that would have been helpful to his defense. The supreme court held in Jackson v. State, __ Ark. __, 105 S.W.3d 352 (2003), that conclusory statements cannot be the basis of post-conviction relief. We will not grant post-conviction relief for ineffective assistance of counsel where the petitioner fails to show what the omitted testimony or other evidence was and how it would have changed the outcome. Id. Here, appellant made general allegations, but did not proffer any testimony that he claims would have affected his trial. Additionally, while a witness claim was not alleged in appellant's motion for new trial, he did generally claim at the hearing that witnesses were available to testify about alleged police misconduct. Trial counsel's decisions as to which witnesses should be called are matters of trial strategy, and are not grounds for a showing of ineffective assistance of counsel. Id. Even though another attorney may have chosen a different course, trial strategy, even if it proves unsuccessful, is a matter of professional judgment. Id.

The closest question is appellant's claim that there was a conflict of interest because appellant's counsel represented both appellant and Craig Gibbens. There was evidence that during trial, appellant's counsel first learned about a connection between Gibbens and appellant. He advised appellant that if he testified, he would have to allege that Gibbens was the experienced "cook" who taught him how to cook methamphetamine. Prejudice will be presumed by a counsel's conflict of interest only when a defendant demonstrates that counsel actively represented conflicting interests. See Townsend v. State, 350 Ark. 129, 85 S.W.3d 526 (2002). In the instant case, the appellant testified that he refused to incriminate Gibbens. The trial court considered this issue, and found that because appellant refused to testify against Gibbens, he was not prejudiced in such a way that would have changed the outcome of the trial. Appellant has failed to provide evidence of error in that decision.

Finally, appellant argues that the "seventy-percent rule"4 was not explained to him by counsel and that counsel failed to meet with him. Appellant's trial counsel rebutted both of these arguments below, and the trial court considered the testimony and found appellant's counsel more credible. Such conflicts in the testimony were for the trial judge to resolve, and the judge was not required to believe any witness' testimony, especially that of the accused, since he is the person most interested in the outcome of the proceedings. Reeves v. State, 80 Ark. App. 61, 91 S.W.3d 97 (2002).

We hold that the trial court's decision to deny appellant's motion for a new trial was not clearly erroneous or against the preponderance of the evidence and affirm on this point.

Affirmed.

Pittman and Neal, JJ., agree.

1 Appellant's counsel at the time did not file a brief on the suppression issue.

2 The State introduced evidence, through the testimony of Detective Jonathan Best, regarding a subsequent execution of a search warrant that occurred on July 5, 2001, at appellant's residence, at which time similar items used to manufacture methamphetamine were discovered.

3 Before reaching the merits of appellant's argument we note that his abstract is flagrantly deficient and noncompliant with the requirements of Rule 4-2 of the Rules of the Arkansas Supreme Court and Court of Appeals. Appellant's abstract of the testimony is not in the first person and consists simply of 181 pages of excerpts of questions and answers taken from various parts of the record. We decline in this instance to order appellant's counsel to file a proper abstract, brief, and addendum, see Ark. R. Sup. Ct. 4-2(b)(3), but we caution counsel to adhere to the briefing guidelines in the future.

4 Arkansas Code Annotated § 16-93- 611 (Supp. 2001) provides that anyone convicted of certain serious offenses (including the manufacture of methamphetamine) will not be eligible for parole until he has served seventy percent of his sentence.