Davienne Williams v. State of Arkansas

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ar03-514

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

DAVIENNE WILLIAMS,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR03-514

FEBRUARY 4, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

SEC. DIVISION, NO. CR02-1699, HON. CHRIS PIAZZA, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Davienne Williams was convicted of third-offense possession of marijuana and possession of marijuana with intent to deliver. He was sentenced as a habitual offender to five years' imprisonment. He brings this appeal1 contending that the court erred in finding him guilty of the offenses because insufficient evidence existed to convict him of possession of marijuana with the intent to deliver. He asks this court to remand the case to the circuit court for resentencing on the lesser-included charge of possession of marijuana and for resentencing on the conviction of marijuana, third offense. We find no error, and we affirm.

At a bench trial on the matter, Little Rock Police Department Officer Ryan McCormick testified that he was patrolling the Splash Carwash on February 27, 2002, because the owner of the carwash had requested extra patrol due to people loitering on the premises and because of suspected narcotics violations that were taking place at the carwash. While patrolling, Officer McCormick observed three vehicles in the parking lot not performing any actions pertaining to the upkeep of their cars, such as cleaning or washing.

As Officer McCormick pulled onto the parking lot, one vehicle left at a high rate of speed. As the other two cars attempted to leave, Officer McCormick parked his car so as to block them from leaving. He waited until backup arrived to make contact with the people in the cars. As he approached the vehicle in which Williams was seated, he detected an odor of marijuana emanating from the vehicle. Officer McCormick testified that he noticed, in plain view in the backseat floorboard of the car, a plastic Wal-Mart bag of "green like material," which was later proven to be marijuana. Williams was placed under arrest, and an inventory search was performed on the vehicle. The passenger in the car, Aaron Sadler, was arrested also. Officer McCormick testified that he searched Sadler and found $5,380 in cash on him.

Detective Anthony Moore of the Little Rock Police Department's narcotics division testified that he took custody of the evidence found in the car Williams was driving. He then interviewed Williams after his arrest. He testified that when he entered the interview room, he noticed that Williams was chewing a large amount of something. Moore asked Williams what he was chewing and Williams spit out the substance, which was identified as marijuana. Moore then asked if Williams had any more marijuana in his possession, and Williams pulled two plastic bags from his sock and placed them on the table. Moore stated that the amount of marijuana found on Williams was 25.2 grams. The laboratory report analysis, which was introduced as State's Exhibit Three, showed that the marijuana found in the plastic Wal-Mart bag weighed approximately 889 grams.

After the State rested, Williams moved for a directed verdict on the charge of possession with intent to deliver. He argued that the Wal-Mart bag containing the marijuana found in his car had not been linked to him. The court denied the motion.

Gerald Hood then testified that he and Sadler had been riding together on the afternoon of February 27 and that Hood had noticed that Sadler had a blue sack that was hanging outside of his jacket. Hood and Sadler pulled into Splash Carwash because they saw Williams's car parked there and Williams about to vacuum it. As they pulled up to Williams's car, Sadler got out of Hood's car, carrying the blue sack with him. McCormick pulled into the carwash, and Hood drove away.

Williams testified that on February 27, he went to Splash Carwash to visit with Sadler because the carwash was a convenient place to visit. He said that when Sadler arrived, Sadler got into his car so that the two could visit about Sadler's brother, who had recently been shot. Williams testified that when Officer McCormick arrived, Hood drove away, leaving Sadler in Williams's car. He then admitted putting three bags of marijuana in his shoes because he was scared. But he denied buying the three bags of marijuana from Sadler. He also admitted attempting to eat some of the marijuana when he was in the interview room.

Williams renewed his motion for a directed verdict at the end of his case, and the court denied the motion. The court found appellant guilty, and he brings this appeal.

Williams argues that, based upon the evidence presented, he should not have been found guilty of possession with intent to deliver because the State failed to prove that he was delivering the marijuana found on him and in the car or that he was exchanging it for anything of value. He states that the evidence "strongly points to mere possession of marijuana." Williams argues that Aaron Sadler had the intention of selling the marijuana to him. He states that the evidence is undisputed that the large quantity of marijuana belonged to Sadler. Williams argues that there was no fingerprint analysis completed that would link him to the marijuana in the car.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Garner v. State, Ark. , S.W.3d (June 18, 2003). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id.

It is unlawful to possess marijuana with an intent to deliver. Ark. Code Ann. ยง 5-64-401 (Repl. 1997). A person's possession of more than one ounce of marijuana gives rise to a presumption that he or she possesses it with the intent to deliver it. Id. Evidence that a person possessed more than the presumptive amount of a controlled substance is substantial evidence that that person possessed the controlled substance with the intent to deliver. Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). Credibility of the witnesses is for the trier of fact to determine. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. The appellate court will disturb the determination only if the evidence did not meet the required standards. Id.

Sufficient evidence was produced at trial to support the verdict. McCormick testified that when he approached Williams, he smelled the odor of marijuana emanating from the car. McCormick noticed a blue bag of green matter, later determined to be marijuana, behind the driver's seat. The bag was determined to contain 889 grams of marijuana. In addition, Detective Moore testified that when he entered the interview room to interview Williams, Williams spit out a large amount of marijuana and when asked if he had any more marijuana on his person, he produced two plastic bags from his sock. The marijuana that Williams spit out and the marijuana pulled from his socks weighed approximately 25 grams. In addition, there was a large amount of cash found on the passenger in the car, Sadler. The foregoing is substantial evidence of Williams's guilt of possessing marijuana with intent to deliver.

Affirmed.

Griffen and Crabtree, JJ., agree.

1 Appellant's abstract does not conform to Rule 4-2 of the Rules of the Supreme Court. We direct appellant's attorney's attention to that rule. While there is no penalty for an infraction of this rule, appellate advocates are expected to familiarize themselves with the rules and observe them. Davis v. Johnston, 251 Ark. 1078, 479 S.W.2d 525 (1972) (decision under prior rule).