Eric M. Wade and Kimberly A. Wade v. State of Arkansas

Annotate this Case
ar04-453

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ERIC M. WADE AND KIMBERLY A. WADE

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR04-453

March 23, 2005

APPEAL FROM THE UNION COUNTY CIRCUIT COURT

[NOS. CR-2002-659, CR-2002-663]

HON. HAMILTON H. SINGLETON,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellants in this criminal case, husband and wife, were charged with multiple drug offenses. After a jury trial, appellants were each found guilty of possession of cocaine with intent to deliver, three counts of possession of marijuana, and possession of drug paraphernalia. On appeal, appellant Kimberly Wade argues that the evidence does not support her convictions for the two counts of possession of marijuana related to sales made prior to the execution of a search warrant. Appellant Eric Wade argues that the evidence is insufficient to support his convictions relating to the contraband seized from his home during execution of the search warrant. In addition, both appellants argue that the trial court erred in failing to suppress evidence obtained during the search of their home because the officers did not properly knock and announce their intent to search before entering, and because there was no probable cause for issuance of the search warrant. We affirm.

We must first address appellants' challenges to the sufficiency of the evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). Substantial evidence is direct or circumstantial evidence of sufficient force and character to compel a conclusion one way or another with reasonable certainty and without resort to speculation or conjecture. Vergara-Soto v. State, 77 Ark. App. 280, 74 S.W.3d 683 (2002). When called upon to determine the sufficiency of the evidence on appeal, we review the evidence in the light most favorable to the appellee, considering only that evidence that tends to support the verdict. We do not weigh evidence on one side against the other; we simply determine whether the evidence in support of the verdict is substantial. McClure v. State, 314 Ark. 35, 858 S.W.2d 103 (1993).

Here, there was evidence that informants, under police direction, made controlled purchases of illegal substances in appellants' home on three occasions, and that marijuana was purchased on the last two of these occasions. Based on these transactions, Deputy Russell Lamb of the Union County Sheriff's Office obtained a warrant to search appellants' residence. After a search conducted pursuant to that warrant, appellants were arrested, and police officers confiscated illegal substances and paraphernalia including crack cocaine, powdered cocaine, marijuana, scales, bags, a police scanner, and cash. Kimberly Wade testified at trial, admitting that the contraband was in fact in her house and that she had sold drugs before. She claimed that the drugs belonged to her rather than her husband. She denied, however, that she had ever sold drugs from that residence.

Kimberly Wade argues that there is insufficient evidence of her possession of the drugs sold in the earlier transactions with the informants because she was not the person who accepted the money or handed the drugs to the informants. However, although there is no evidence of Kimberly Wade having a direct connection to the sales, the question is not whether she sold the drugs, but instead whether she possessed them.

Neither exclusive nor actual, physical possession of a controlled substance is necessary

to sustain a charge of possession; constructive possession is sufficient to prove a defendant is in possession of a controlled substance. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). Constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the accused, or when it is in the joint control of the accused and another. Id. However, joint occupancy alone is not sufficient to establish possession or joint possession; there must be some additional factor linking the accused to the contraband. Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990). Where there is joint occupancy of the premises in which contraband is found, the State must prove: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). Here, there was evidence that Kimberly lived in the home and was the wife of Eric, who delivered the drugs to the informants; that she was present during both of the marijuana sales; that she knew that the informants had come to her home to buy drugs; that the informants discussed the purchase in Kimberly's presence; and that Kimberly had on prior occasions participated in discussions concerning controlled substances and their purchase. We think that this evidence clearly establishes Kimberly's knowledge of the marijuana, and constitutes sufficient evidence of "other factors" from which the jury could reasonably infer that she had joint possession and control of it. See Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003).

Eric Wade argues that, because Kimberly took responsibility for all drugs and paraphernalia found in the residence and because there was no direct evidence that any of it belonged to him, the circumstantial evidence against him was insufficient to support his conviction because it was not inconsistent with all other reasonable possibilities -- the reasonable possibility being, he argues, that his wife was in exclusive possession of all the contraband. There is no merit in this argument. Although it is true that, when circumstantial evidence alone is relied upon, it must indicate the accused's guilt and exclude every other reasonable possibility, the question of whether the circumstantial evidence excludes any hypothesis consistent with innocence is for the fact-finder to decide. Doubleday v. State, 84 Ark. App. 194, 138 S.W.3d 112 (2003). The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and it could reasonably conclude on this evidence that the testimony offered by Eric Wade's wife did not establish a reasonable possibility of Eric's innocence. See Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003).

Appellants also argue that the evidence obtained during the search of their home should have been suppressed because the officers conducting the search failed to comply with the Fourth Amendment "knock and announce" requirement established in Wilson v. Arkansas, 514 U.S. 927 (1995). The factors relevant to the analysis of this issue were set out by our supreme court in Mazepink v. State, 336 Ark. 171, 987 S.W.2d 648 (1999):

[T]he Fourth Amendment not only requires officers to go through the motions of knocking and announcing, it also requires them to wait a reasonable period of time before forcing entry into the premises. A refusal to reply to the officers' order to open the door may be inferred from silence. United States v. Mendonsa, 989 F.2d 366 (9th Cir. 1993). Correspondingly, if the occupants do not admit the officers within a reasonable period of time, the officers may be deemed to be constructively refused admittance and may then enter by force. United States v. Moore, 91 F.3d 96 (10th Cir. 1996). Thus, before officers may force entry into the premises, they must wait long enough to have been constructively refused entry by the occupants. There is no exact measurement of time required before the officers are said to have been constructively refused entry; rather, the reasonableness of the time interval has been determined on a case-by-case basis.

Mazepink v. State, 336 Ark. at 182-83, 987 S.W.2d at 653. In the present case, there was evidence that the appellant's home was a relatively small frame house; that the police officers loudly knocked and announced their identity, purpose, and authority; and that, after no response was forthcoming, forced entry into the house twenty seconds after knocking and announcing. This amount of time was found to be sufficient under similar circumstances in Haynes v. State, 83 Ark. App. 314, 128 S.W.3d 33 (2003). Likewise, although the testimony regarding the execution of the search was conflicting, credibility determinations and conflicts in the testimony at the suppression hearing were for the trial court to resolve. Haynes v. State, supra.

Finally, appellants argue that the police officers who obtained the warrant knowingly or recklessly made false statements in the supporting affidavit, that the warrant was therefore invalid under Franks v. Delaware, 438 U.S. 154 (1878), and that the fruits of the search should therefore have been suppressed. Under Franks, a warrant should be invalidated if a defendant shows by a preponderance of the evidence that: (1) the affidavit contained a false statement that was made knowingly, intentionally, or recklessly by the affiant and (2) the false statement was necessary to a finding of probable cause. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). Here, appellants' argument is largely based on the fact that the tapes of the drug transaction recorded by the informants were inaudible, and is premised on appellants' assertion that, because the recordings were not audible, Officer Lamb could not hear the conversations via the micro-transmitter carried by the informants. However, Officer Lamb testified that he searched the informants for money and drugs, watched them enter appellants' residence, and heard the transactions via micro-transmitter as they took place. In the absence of any evidence to show that the inaudibility of the tapes was caused by a defect in the micro-transmitter rather than in the recording equipment, appellants' assertion that Officer Lamb was untruthful in stating that he heard the transactions is based on supposition. Viewing the totality of the circumstances, we cannot say that appellants have met their burden of demonstrating that the affidavit contained a knowing, intentional, or reckless false statement.

Affirmed.

Neal, J., agrees.

Robbins, J., concurs.