Belinda Gibbons v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

BELINDA GIBBONS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-284

May 5, 2004

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[CR-2001-313-2]

HON. DAVID S. CLINGER, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Belinda Gibbons was convicted of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. She was sentenced to twenty years and ten years in prison respectively, with the sentences to run concurrently. On appeal, she contends that: (1) the trial court erred when it allowed the State to introduce prior and subsequent bad acts under Ark. R. Evid. 404(b); (2) the court erred when it ruled that the State had met its burden of proof under the theory of constructive possession; (3) the court erred when it ruled that the defendant had failed to meet her burden of proof concerning the Rule 37 hearing. Finding no merit to these arguments, we affirm.

The State filed a felony information charging appellant with possession of a controlled substance with intent to deliver and possession of drug paraphernalia. The State filed a pre-trial motion in limine seeking to introduce prior and subsequent bad acts of appellant involving drugs. The case was heard by the trial court. Rather than ruling on the State's motion prior to trial, the court

stated that it would rule on the issues after it heard the evidence. At the conclusion of the evidence, the trial court asked for briefs on the issues. Subsequently, the trial court ruled on the motion in limine, excluding some evidence from its consideration of the case. Ultimately, the trial court found appellant guilty of both charges.

Prior to sentencing, the trial court received an ex parte communication, purportedly from appellant, raising claims of ineffective assistance of counsel. The trial court postponed sentencing until after what the trial court referred to as a "Rule 37 hearing." Based on the testimony and evidence presented at the hearing, the trial court found that counsel's conduct did not amount to ineffective assistance of counsel.

Sufficiency of the Evidence

We first address appellant's second point of appeal challenging the sufficiency of the evidence. Sufficiency issues are considered before other alleged trial errors because of the double-jeopardy implications. Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002). We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Id. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Id. In determining the sufficiency of the evidence, this court will not second-guess credibility determinations made by the factfinder. Id.

To sustain a conviction for possessing contraband, the State need not prove exclusive or actual physical possession; constructive possession, or the control or the right to control contraband is sufficient. Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998). Constructive possession may be implied when the contraband is in the joint control of the accused and another person; however, joint occupancy, standing alone, is insufficient to establish possession or joint possession. Miles v. State, 76 Ark. App. 255, 64 S.W.3d 759 (2001). In order to show possession in a case of joint occupancy, the State must show care, control, and management of the contraband as well as knowledge that the matter possessed was contraband. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998).

Appellant argues on appeal that there was nothing linking her to the contraband, aside from the fact that a female lived in the house and that the female was probably appellant. We disagree.

At trial, Det. Johnathon Best testified that he participated in the execution of the search warrant at appellant's home, which she shared with her husband, Craig Gibbons, on March 1, 2001. When officers arrived at the home, Mr. Gibbons and his brother were outside the home and appellant was inside. Det. Best stated that there were two bedrooms in the house, although one was used only for storage. The master bedroom contained items indicating that a woman was using the room; there were stuffed animals, pictures of appellant in the room, a hairbrush (Mr. Gibbons had a shaved head), and women's clothing, including a coat that was on the bed and contained $484 in cash. During the search, Det. Best found methamphetamine and several items of paraphernalia. Specifically, a jewelry box on a dresser contained a baggie with approximately .26 milligrams of methamphetamine and a baggie with methamphetamine residue. There was also a stack of several empty baggies on the dresser, and a baggie containing 353 milligrams of methamphetamine was on the floor underneath the nightstand. Items of paraphernalia, including a glass pipe with a burnt end, Vita Blend (a cutting agent that is mixed with methamphetamine to increase the quantity for sale), syringes, and a triple-beamed scale that can be used for packaging large amounts of methamphetamine prior to sale, were found in the drawer of the night stand, and inside and on the top of an unlocked gun cabinet, which sat on top of the night stand. Appellant admitted that the cash, which she had gotten from the bank earlier that day, belonged to her. In the kitchen, there was an electronic scale, which is commonly used to measure methamphetamine, in plain view.

The above evidence in conjunction with the fact that appellant admitted to Det. Best that she used methamphetamine links her to the methamphetamine found in the bedroom, as well as the paraphernalia used to consume the methamphetamine. In addition, the scales, the baggie containing residue, and the stack of baggies were in plain view in the bedroom. The baggie containing the methamphetamine was found in a jewelry box, an item usually used by women, and appellant admitted being a user, suggesting as the State contends, that she exercised control of the contraband. This also shows that she had knowledge that the items were contraband. Appellant argues that there is nothing linking her to the bedroom; however, she told detectives that she had gone to the bank earlier and gotten the money in the coat, which detectives found on the bed. Based on the foregoing, we conclude that there was sufficient evidence of constructive possession to sustain the conviction.

Prior and Subsequent Bad Acts

Appellant next contends that the trial court erred when it allowed the State to introduce prior and subsequent bad acts under Ark. R. Evid. 404(b). This argument is broken into four parts: (1) search warrant of February 25, 2000; (2) appellant being seen buying precursors of methamphetamine at Wal-Mart; (3) search warrant of May 24, 2001; (4) search warrant of October 16, 2001.

Trial courts are afforded wide discretion in evidentiary rulings. McCoy v. State, ___ Ark. ___, 123 S.W.3d 901 (2003). Specifically, in issues relating to the admission of evidence under Ark. R. Evid. 401, 403, and 404(b), it has been held that a trial court's ruling is entitled to great weight and will not be reversed absent an abuse of discretion. Id. In addition, we will not reverse absent a showing of prejudice. Id.

According to Ark. R. Evid. 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith; however, this evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. For evidence of other crimes to be admissible under Rule 404(b), such evidence must be independently relevant, and the probative value of the evidence must outweigh any danger of unfair prejudice. Gaines v. State,340 Ark. 99, 8 S.W.3d 547 (2000).

1. Search Warrant of February 25, 2000

Appellant first argues that the trial court erred in allowing the State to introduce evidence obtained from the February 25, 2000 search warrant. As the State points out, although the trial court heard evidence relating to the search, the trial court did exclude from its consideration evidence resulting from the February 2000 search as too remote. Although appellant's abstract does not accurately reflect this, the record does. The court stated: "Well, for the purpose on the 404(b), I am, quite frankly, question my judgment in this, but I am excluding from consideration the iodine purchasing incident in February of 2000 and the search of the other home in February of 2000 as too remote."

It is a basic principle of law that where the appellant received the relief she requested, she has no basis upon which to raise the issue on appeal. Hardman v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 5, 2004). Although the trial judge heard testimony relating to the February 2000 search, he excluded it from his consideration when he ruled on the case. Because the trial court ruled in favor of appellant on this issue, there is no basis from which she can appeal.

2. Appellant being seen buying precursors of methamphetamine at Wal-Mart

Appellant contends that the trial court erred in allowing the State to introduce evidence that she was seen buying precursors of methamphetamine at Wal-Mart. The State initially responds that appellant is barred from raising this argument because the trial court failed to rule on the issue. Prior to the start of the bench trial, the court heard argument regarding the State's motion in limine, but reserved ruling on the issues until after the testimony was heard. The State submitted a post-trial brief on the evidentiary issues, and the trial court heard argument on the admissibility. In making its ruling on the case, the trial court stated that it excluded consideration of the February 2000 search and February 2000 iodine purchasing incident, but found that the May 24, 2001 search and the October 2001 search were similar and not too remote in time and had a bearing on the State's burden of proving intent. However, the court made no mention of the admissibility of the testimony that appellant had been seen buying precursors at Wal-Mart. We agree with the State that appellant is barred from raising this argument on appeal because she failed to obtain a ruling. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993) (holding argument not preserved where trial court reserved a ruling initially and appellant subsequently failed to obtain a ruling).

3. Search Warrant of May 24, 2001

Appellant contends that the trial court erred when it allowed the State to present subsequent bad acts under Rule 404(b) concerning the May 24 search warrant because of the unreliability of the informant and the fact that the evidence should have been suppressed in the case that arose from the May 24 search. Basically, appellant is asking us to review a motion to suppress that pertained to another case. We are unable to reach the merits of appeallant's argument because to do so would require us to review the affidavit and search warrant, which are not contained in the record. To analyze this issue as appellant suggests would require us to review the decision on the motion to suppress, which is impossible because the record is inadequate as it fails to include the affidavit and search warrant. It is well settled that the appellant bears the burden of producing a record that demonstrates error. Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000). Thus, appellant's argument is procedurally barred.

4. Search Warrant of October 16, 2001

During the execution of a search warrant at the home shared by appellant and her husband on October 16, 2001, police seized various items used in the manufacture of meth, including decongestant pills, a blender with white residue, scales, Heet, Red Devil Lye, acetone, camp fuel, muriatic acid, and paint thinner. There was testimony that these items are used in the manufacture of methamphetamine.

Appellant contends that this evidence was irrelevant to the possession charges at issue because it does not go to any of the exceptions set forth in Rule 404(b). The State responds that the fact that police found the components of a meth lab, suggesting a continuing operation, was relevant to prove that she constructively possessed the meth and paraphernalia found in her bedroom March 1, 2001. Also, the State argues that the subsequent existence of a laboratory suggests that the scales and baggies discovered in March were used to measure and package the finished product.

We cannot say that the trial court abused its discretion in allowing evidence involving the execution of the October 16, 2001 search warrant because it was not too remote in time and showed intent and knowledge of appellant with respect to the methamphetamine and paraphernalia found in her home on March 1, 2001.

Conflict of Interest

For her last argument on appeal, appellant contends that the court erred when it ruled that she had failed to meet her burden of proof concerning the Rule 37 hearing. Although the trial court referred to the proceeding as a "Rule 37 hearing," it was in fact a post-trial hearing regarding appellant's claim of ineffective assistance of counsel. Rule 37.1 of the Arkansas Rules of Criminal Procedure presupposes that a petition pursuant to Rule 37 be brought when the petitioner is "in custody under sentence of a circuit court." Here, appellant had been found guilty by the trial court but had not been sentenced at the time of the hearing involved in this case. Therefore, despite the trial court's characterization, we do not believe this issue was raised pursuant to Rule 37.

The appellate court will not consider ineffective assistance as a point on appeal unless that issue has been considered by the trial court. McClina v. State, ___ Ark. ___, 123 S.W.3d 883 (2003). While Rule 37 of the Arkansas Rules of Criminal Procedure generally provides the procedure for postconviction relief due to ineffective counsel, we will address this issue on direct appeal, provided that it was first raised during trial or in a motion for a new trial and provided that the surrounding facts and circumstances were fully developed either during the trial or during other hearings conducted by the trial court. Id. In the present case, the ineffective assistance of counsel claim was fully developed before the trial court, and therefore is properly before us on appeal.

At the April 22, 2002 sentencing hearing, the trial court addressed the fact that it had received an ex parte communication, purportedly written by appellant, containing allegations of ineffective assistance of counsel. The court forwarded the correspondence to counsel. Appellant acknowledged that her husband wrote the letter at her direction. The trial judge stated that, before it proceeded with sentencing, he wanted to conduct a "Rule 37 hearing" the following day to address the issues raised in the letter. Appellant's counsel, Mr. Gross, informed the court that he could have a potential conflict because he also represented appellant's husband.

At the hearing, appellant testified that Mr. Gross did not speak with her about any possible plea offers. The testimony is unclear because she stated she wanted to "back up" and explained that "he" (apparently referring to Mr. Gross) did tell her about getting five years' probation if she pled guilty to the manufacturing charge. Later in her testimony, however, she testified that the only plea offer she was told about was from lawyer Rob Newman, who had represented her prior to Mr. Gross. Appellant stated that she spoke with Mr. Gross about the plea offer Newman presented. She recalled Mr. Gross saying that "he was aware of the fact that, you know, I mean, it was kind of crazy to ask a wife to go and do that to her husband and he said that he had never had -- he said that's why he never came and offered that to me, never spoke to me about it." Appellant testified that she would not have accepted any plea offer that required her to testify against her husband.

Mr. Gross, on the other hand, testified that he discussed several plea offers with appellant in which the State offered leniency in exchange for her testimony. He mentioned one in particular, which consisted of five years' probation and drug court. He also stated that he told appellant that he would have to stop representing her husband if she accepted the offer of leniency. The focus of appellant's argument on appeal centers around the fact that when the State chose to offer a plea to appellant in return for testifying against her husband, a conflict of interest arose that was clearly adverse to appellant because Mr. Gross represented both her and her husband. Appellant alleges that had it not been for the conflict between her and her husband's interests, Mr. Gross would have informed her of the plea offers. She adds that even though she testified that she would not have accepted any offer requiring her to implicate her husband, counsel was ineffective because he did not inform her of her rights and advise her so that she could make an informed decision regarding testifying against her husband.

Various items relating to the ineffective assistance claim were addressed in the trial court's ruling, but the only one challenged on appeal is the conflict of interest and Mr. Gross's alleged failure to communicate the plea offer. The trial court stated that because appellant was adamantly opposed to providing State's evidence against her husband, most of the issues were moot. Ultimately, the court ruled that there was not inadequate representation, although the court stated that Mr. Gross should have ended his representation of Mr. Gibbons at the time an offer of leniency was suggested.

In Sheridan v. State, 331 Ark. 1, 4, 959 S.W.2d 29, 31 (1998) (quoting Johnson v. State, 321 Ark. 117, 124, 900 S.W.2d 940 (1995)), the supreme court set out the proper analysis for reviewing ineffective-assistance-of-counsel claims due to alleged conflicts of interest:

Prejudice will be presumed from a conflict of interest only when the defendant demonstrates that an actual conflict of interest adversely affected his lawyer's performance. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). Petitioner had the burden of proving a conflict of interest and showing its adverse effects. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). A petitioner is not entitled to relief under the Cuyler test unless he satisfies both prongs of the test. Salam v. Lockhart, 874 F.2d 525, 527-28 (8th Cir.1989) (citing Lightbourne v. Dugger, 829 F.2d 1012, 1023 (11th Cir.1987), cert. denied 488 U.S. 934, 109 S. Ct. 329, 102 L. Ed. 2d 346 (1988)). The prejudice must be real and have some demonstrable detrimental effect and not merely have some abstract or theoretical effect. Simmons v. Lockhart, 915 F.2d 372, 378 (8th Cir.1990).

Based on the facts of this case, we hold that, although an actual conflict arose at the time the State communicated a plea offer to appellant in exchange for her testimony against her husband, there was no prejudice to appellant. Prejudice is only presumed where the defendant demonstrates that an actual conflict of interest adversely affected her lawyer's performance. See Sheridan, supra. The evidence was clear that appellant was not going to testify against her husband in exchange for leniency, and Mr. Gross testified that he informed appellant of the plea offer and that she did not want to accept it. We cannot say that the trial court erred on this issue.

Affirmed.

Hart and Baker, JJ., agree