Jeremy Burns v. State of Arkansas

ar04-185

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR04-185

OCTOBER 6, 2004

JEREMY BURNS AN APPEAL FROM THE POLK

APPELLANT COUNTY CIRCUIT COURT [CR-2003-27]

V.

STATE OF ARKANSAS HONORABLE J.W. LOONEY, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

In this appeal from the Polk County Circuit Court, appellant was sentenced to twenty years' imprisonment for possession with the intent to deliver methamphetamine, possession of drug paraphernalia, and refusal to submit to arrest. On appeal, appellant alleges that the court committed reversible error by denying his motion to suppress evidence, failing to grant a new suppression hearing, and failing to grant a mistrial. Appellant also asserts that the court erred in denying his motions for a directed verdict with regard to each charge. We affirm.

For purposes of double jeopardy, we address appellant's challenges to the sufficiency of the evidence first. Woolbright v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 22, 2004). He argues that the evidence was insufficient to sustain his convictions. These arguments are without merit.

Motions for directed verdict are challenges to the sufficiency of the evidence. Benson v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 22, 2004). When reviewing the denial of a directed- verdict motion, the appellate court will look at the evidence in the light most favorable to the State, considering only the evidence that supports the verdict, and will affirm if there is substantial evidence to support the jury's conclusion. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other and permits the trier of fact to reach a conclusion without having to resort to speculation or conjecture. Id.

The fact that evidence is circumstantial does not render it insubstantial; where circumstantial evidence is relied upon, however, it must exclude every other reasonable hypothesis but the guilt of the accused. Geer v. State, 75 Ark. App. 147, 55 S.W.3d 312 (2001). Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Isom v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 19, 2004). Such a determination is a question of fact for the fact-finder to determine. Id. The credibility of witnesses is an issue for the jury and not the court. Id. 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. We will disturb the jury's determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Id.

At trial, Sergeant Kenneth Mann of the Mena Police Department testified that on February 21, 2003, he had telephone contact with Amanda Burns, appellant's ex-wife. Amanda Burns informed Sergeant Mann that she had been in a confrontation with appellant, who jerked their three year old daughter from her arms and took off in his truck. Amanda Burns was concerned because the child was on medication that she needed to take that night and she needed help locating appellant.

Because of his concern for the welfare of the child, Sergeant Mann called Officers Hubbard and McBee and advised them to look for appellant. He also informed Hubbard and McBee that if they found appellant, they should stop him, check on the child, and advise him that he needed to get the child's medication.

Officer Hubbard testified that he received a description from Sergeant Mann to look for appellant in a red 4x4 GMC pickup without tags. Hubbard located appellant at the local Sonic. As the vehicle left Sonic and exited onto Highway 71 South, Officer Hubbard stopped the vehicle. Hubbard testified that, as soon as the vehicle stopped, appellant jumped out of the vehicle, aggressively slamming the door behind him. Hubbard stated that appellant was walking towards the patrol unit when he stepped out and requested that appellant return to his vehicle. Appellant refused. Hubbard further testified that:

He [appellant] threw his hands up and stated, what have I done. I started walking towards [appellant]. He took an aggressive stance as if he was going to fight or defend himself or something of that nature. At that point, myself and Officer McBee . . . grabbed a hold of [appellant] and placed him up against his vehicle which was a truck to gain control of him. He was still agitated at that point. I held onto him approximately 10 to 15 seconds. While I was holding onto him he was acting very agitated, very upset. I felt like he had calmed down to some extent.

Officer McBee's testimony corroborates Officer Hubbard's testimony concerning appellant's behavior. McBee testified that he saw appellant standing in front of Hubbard's vehicle "screaming and hollering and throwing his arms up yelling at Officer Hubbard." McBee testified:

I stepped out at that time and told him to go back to the rear of his vehicle and at that time he didn't comply and Officer Hubbard was also telling him the same thing. I told him again to step back to the rear of the vehicle, he did not comply, he took his finger and was hollering and waving his arms. Officer Hubbard started to approach [appellant] and he turned his body kind of cata-cornered as if he was going to fight. At that time I approached him also and we put him towards the back of the vehicle, back of his pickup and held him there for a minute or two so he could calm down just a little bit and get control of the situation. And, we turned him loose. At that point, he calmed down just a little bit and we turned him loose[.]

Subsequently, Hubbard requested appellant's license, to which appellant "put his hands up and

. . . asked what [Hubbard] needed that for." McBee testified that appellant "flew back off the handle again and started waving his arms screaming and hollering[.]" Officer Hubbard knew from previous contacts that appellant did not have a valid license at the time. Thereafter, Hubbard stated that at that point he did not feel comfortable, and he and Officer McBee attempted to place appellant under arrest. Because appellant had locked his arms in front of him, holding his wrists, the officers had to force appellant's hands behind his back. Sergeant Mann then arrived on the scene.

Mann testified that, as he pulled up on the scene, the officers were escorting appellant to one of the patrol units. He noticed that appellant was handcuffed and struggling with the officers. Mann saw two other people in appellant's vehicle so he approached. Sitting in the vehicle were twelve year old E.W. and appellant's three year old daughter. Mann had E.W. exit the vehicle so that he could identify her and see why she was there. About that same time, Amanda Burns arrived and walked towards the vehicle. Mann advised Amanda Burns to stop where she was. Mann stated, "She [Amanda] attempted to walk around me and go up to the vehicle and I told her again to stop and I would get the child out for her. I reached in and picked up the child and handed her to Amanda." Mann gave Amanda Burns a small bag that was lying in the floorboard of the truck that had "maybe a bottle and maybe a burp rag." He noted that Amanda Burns was standing right beside the passenger door and he was between the vehicle and Amanda.

Prior to having the vehicle towed, Officer Hubbard performed an inventory of the vehicle. He found a black leather coat sitting near the driver's seat. Inside the coat were nine dollars in cash and a small black bag that contained one set of digital scales, thirty grams of yellow powdery substance packaged in nine small clear bags, seven empty small clear bags, a rolled paper type tube which the officer believed would be used to ingest methamphetamine, appellant's birth certificate, an Arkansas identification card, a W-2 form, and a drivers license permit. The drivers permit required that appellant have at least a twenty-one-year old adult with a valid drivers license accompany him when driving. No such person was in the vehicle that appellant was driving. Officer Hubbard testified that appellant's name was on all of the documents inside the jacket. Officer McBee confirmed that these items were inside the jacket found in the car.

Amanda Burns, appellant's ex-wife, testified that her and appellant's daughter was on antibiotics and that appellant left without taking the medicine. She testified that no confrontation was reported to the police, but that she simply voiced her concern that she needed to stop her ex-husband so that she could tell him to get the medication and how to administer it. Ms. Burns said that she found appellant at Sonic, blocked him in, and gave him the medicine. She testified that appellant "tried to run my car over after I gave him the medication." She thereafter called the police to tell them where to locate appellant. Ms. Burns testified that she saw the officers stop appellant and that she pulled behind the officers. She testified:

Before I could get pulled into the parking lot, [appellant] was out of his car or out of his truck throwing his hands up in the air acting like a crazy person and they were getting ready to put him into handcuffs as I pulled in. I did go to his truck to get something out of the truck. I leaned across the little girl that was sitting by the passenger side, picked up my daughter and walked back to my car. The officer did not go to the vehicle and pull my daughter out, the officer was standing behind me telling me to stop and I said, my daughter is not going to watch this. He just said, stop, what are you doing and I told him and he didn't say that I couldn't get my daughter[.] . . . The officer did not pick a bag out of the car for the child and hand it to me. . . . [Appellant] was acting pretty violent. If I was in an officer's position, I would have taken every step I could to control him and I could see this from the highway. I didn't see him take any actions or strike at them at all. I did see him resisting arrest. He was kind of throwing his arms around being wild. He wasn't frightening, he was - he was acting out of control.

Possession with the Intent to Deliver and

Possession of Drug Paraphernalia

In Arkansas, "it is unlawful for any person to . . . possess with intent to . . . deliver a controlled substance." Ark. Code Ann. § 5-64-401 (Supp. 2003). Additionally, "[i]t is unlawful for any person to . . . possess . . . drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it will be used to . . . inject, ingest, inhale, or otherwise introduce into the human body a controlled substance. . . ." Ark. Code Ann. § 5-64-403(c)(2)(A) (Supp. 2003). We have explained that the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused. George v. State, ___ Ark. ___, ___ S.W.3d ___ (March 4, 2004). Constructive possession may be established by circumstantial evidence. Id. When seeking to prove constructive possession, the State must establish that the defendant exercised care, control, and management over the contraband. Id. This control can be inferred from the circumstances. See id.

Appellant specifically urges that the evidence was insufficient to convict him of possession with the intent to deliver because there was evidence that Amanda Burns had entry in the vehicle. Appellant's argument is misplaced. Although Amanda Burns testified that she had access to the truck, Sergeant Mann testified that he did not allow Amanda Burns to enter into the truck, but that he handed the child to her and handed her a small bottle of medicine. Credibility determinations are left to the trier of fact. See Isom v. State, supra. Furthermore, there were three people inside appellant's truck - himself and two minors. The search of the vehicle incident to arrest turned up a jacket whose pockets contained items belonging to appellant. Accordingly, substantial evidence supports the convictions for possession with the intent to deliver and possession of drug paraphernalia.

Refusal to submit to arrest

Appellant further asserts that the evidence was insufficient to support his conviction for refusal to submit to arrest because

[t]here is not any place in the record that indicates that the officers indicated that they told [appellant] that he was under arrest. There is no place in the record that indicates that the officers told [appellant] why he was stopped or why he was arrested. Therefore it was not shown that it was known by Mr. Burns that the officers were effecting an arrest.

Appellant's argument is misplaced.

A person commits the offense of refusal to submit to arrest if he knowingly refuses to submit to arrest by a person known by him to be a law enforcement officer effecting an arrest. Ark. Code Ann. § 5-54-103(b)(1) (Repl. 1997). "Refusal" means active or passive refusal. Ark. Code Ann. § 5-54-103(b)(2) (Repl. 1997). It is no defense to a prosecution that the law enforcement officer lacked legal authority to make the arrest, provided he was acting under color of his official authority. Ark. Code Ann. § 5-54-103(b)(3) (Repl. 1997).

There is ample evidence indicating that appellant knew that Hubbard and McBee were officers and that appellant locked his hands in front of him and grabbed his wrist when the officers attempted to arrest him. While appellant argues that he did not know he was under arrest, the fact remains that he obviously knew that he was being placed under arrest when the officers attempted to handcuff him and he refused. Under these circumstances, there was substantial evidence supporting appellant's conviction for refusal to submit to arrest.

As substantial evidence supports appellant's convictions, we now turn to appellant's three remaining arguments - that the trial court erred in denying a mistrial, in denying the motion to suppress, and in denying the request for a new suppression hearing.

Mistrial

Appellant alleges that, during closing arguments, the prosecution made inappropriate comments regarding his failure to testify. Appellant's argument is not preserved for our review.

This court has held that a circuit court has wide latitude in its discretion to grant or deny a mistrial and it will not be reversed absent an abuse of that discretion. Anderson v. State, ___Ark. ___, ___ S.W.3d ___ (Apr. 29, 2004). Nor will this court reverse a mistrial decision in the absence of a showing of manifest prejudice. Id.

The law is well settled that to preserve an issue for appeal, a defendant must object at the first opportunity. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Similarly, motions for mistrial must be made at the first opportunity. Id. The policy reason behind this rule is that a trial court should be given an opportunity to correct any error early in the trial, perhaps before any prejudice occurs. Id. A motion for mistrial must be made at the time the objectionable statement is made, rather than waiting until the end of the State's argument. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997). Furthermore, a motion for mistrial based on improper argument is untimely when it is made after closing arguments and out of the presence of the jury. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987).

Because appellant objected to the prosecution's closing argument after the jury had already retired for deliberations, his motion for mistrial based on improper argument was untimely.

Motion to Suppress

Prior to trial, appellant filed a motion to suppress evidence on the grounds that the stop was illegal, the arrest was invalid, and the officers had no probable cause for the traffic stop. In reviewing the trial court's denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court and proper deference to the trial court's findings. Mannv. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 29, 2004). The trial court's ruling will not be reversed unless it is clearly against the preponderance of the evidence. Woolbright v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 22, 2004).

At the suppression hearing, Sergeant Mann and Officer Hubbard offered the same testimony infra that they presented at trial. Appellant was stopped following a call to the police from appellant's ex-wife Amanda Burns alleging that she and appellant had a confrontation, that he took their three-year-old daughter with him, and that he left without the medication that the child needed to take. The officers testified that they were concerned about the welfare of the child so they looked for appellant. Once Officer Hubbard found appellant and stopped him, appellant became aggressive and irate, refusing to return to his vehicle and refusing to present his drivers license. Furthermore, appellant was operating the vehicle without a license plate. Operating a vehicle without a license plate is illegal, see Ark. Code Ann. § 27-14-304(a) (Repl. 2004), and Officer Hubbard could have stopped and detained appellant based simply on this violation. See Thornton v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 4, 2004) (an officer had probable cause to stop the car because he had reason to believe that he had witnessed a violation of the law in his presence).

Only subsequent to appellant's arrest due to his behavior did the officers inventory the vehicle. Where an officer has the probable cause to arrest pursuant to Ark. R. Crim. P. 4.1, which provides that an arrest without a warrant can occur if there is reasonable cause to believe that a felony or violation occurred in the officer's presence, he may validly conduct a search incident to arrest of either the person or the area within his immediate control. Thornton v. State, supra. Therefore, reviewing the totality of the circumstances, the trial court's determination to deny appellant's motion to suppress was not clearly erroneous. Accordingly, we affirm this point.

Request for new suppression hearing

During the suppression hearing, the court reporter's tape skipped at the end of Officer Hubbard's testimony. Appellant requested a new hearing, to which the court replied in part that suppression hearings were not normally transcribed and that the problem could be remedied if Officer Hubbard and Sergeant Mann were called at trial. The court further stated, "I think we can cure this at trial by fully hearing from the officers and you renewing your objection and I'll renew on the record that at that point what decision with regard to suppression is appropriate. We'll make a full record on it at that time."

Appellant, relying on Schlesier v. State, 330 Ark. 219, 953 S.W.2d 575 (1997), argues that the trial court should have granted his motion for a new suppression hearing due to the court reporter's inability to submit the record of the testimony. However, appellant's argument is without merit.

While there is a preference for a complete record, a full and complete record is not necessarily required where the existing record is sufficient for us to perform a review for errors prejudicial to the rights of the appellant. Scott v. State, 355 Ark. 485, 139 S.W.3d 511 (2003). We evaluate the record to determine whether it is sufficient for the court to perform a review of the claimed errors; a record may be sufficient even though it contains uncorrectable omissions. Lewis v. State, 354 Ark. 359, 123 S.W.3d 891 (2003). Further, it is the appellant's duty to demonstrate that prejudice results. Id.

Here, the court reporter acknowledge that the tape skipped at the end of Officer Hubbard's testimony and at the beginning of Sergeant Mann's testimony. The court informed appellant that the problem was curable with the testimony at trial where he again would have the opportunity to cross-examine the witnesses and renew his motions. Accordingly, although portions of the suppression hearing were not available, the court heard the testimony and appellant was given the opportunity at trial to cross-examine the officers again to illicit their testimony. Therefore, the record was sufficient even though portions of the suppression hearing were uncorrectably omitted. Furthermore, appellant has failed to demonstrate how prejudice resulted.

In conclusion, because there is no merit to any of appellant's six points on appeal, we affirm.

Affirmed.

Pittman and Gladwin, JJ., agree.