Barry Fairow v. State of Arkansas

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ar04-679

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

BARRY FAIROW

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-679

May 11, 2005

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT

[NO. CR 2003-222]

HON. DAVID G. HENRY,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Barry Fairow was convicted by an Arkansas County jury of being a felon in possession of a firearm; theft by receiving; and fleeing, and he was sentenced as a habitual offender to 360 months in the Arkansas Department of Correction. He argues that the evidence was not sufficient to "warrant the conclusion" that he possessed the firearm.1 We affirm.

Billy Dobson testified that he was an auxiliary police officer for the Stuttgart Police Department. In that capacity, he was issued a badge and a Glock .40 caliber, Model 22. According to Dobson, he usually kept his Glock inside the door and his badge in the cup holder of his pick-up truck. After returning from vacation, he noticed that his badge and the Glock, along with a .22 caliber Derringer were missing from his truck. He also noted that his door handles were no longer working correctly, and he had to have them replaced. Dobson identified the Glock and the badge introduced as evidence at trial as having been in his possession before they were stolen from his pick-up. He stated that all of the auxiliary badges were identical; however, he recognized his because he had purchased a clip for it. Furthermore, Dobson stated that he was unaware of there being any other auxiliary police badges being missing from the Stuttgart Police Department.

Stuttgart Police Sergeant Landers Austin testified that while en route to a call, at approximately 3:15 a.m., he observed two individuals, one of whom he recognized as Anthony Johnson. As he passed, the unidentified individual moved to the other side of Johnson. Austin interpreted this action as an effort to keep from being identified. This suspicious activity caused Austin to radio officers Jason Sandine and Stephen Bobo and ask them to "check out" the two individuals. Over the radio, he heard Officer Sandine announce that he recognized the other individual as Barry Fairow and that Fairow was running away. Austin turned back to help pursue Fairow and found Officer Bobo standing in an alley; Bobo had tried to pursue Fairow on foot. While returning to his police vehicle after speaking with Officer Bobo, Austin discovered Fairow, who was barefoot, lying in some bushes. According to Austin, Fairow's head was resting on his hands and Fairow appeared to be "holding something."

Austin ordered Fairow to show his hands. Fairow failed to comply, and Austin grabbed Fairow's arms to handcuff him. When he rolled Fairow over, he discovered a Stuttgart police badge lying directly underneath Fairow. Austin took possession of the badge and called for another officer, Jeremy Watkins, to transport Fairow to the police station. Austin and Sandine then "backtracked" the area that Fairow had traversed. The police followed footprints made in the dew-soaked grass, along the path taken by Fairow, and found Fairow's shoes near a dumpster in an alley. Continuing on, Sandine found a Model 22 Glock .40 caliber handgun, identified at trial by Dobson, twenty to thirty feet from the dumpster. Austin stated there was moisture on the metal building next to where the gun was found, but the gun itself was not wet. No fingerprints were found on the weapon. On cross-examination, Austin stated that he did not find the holster for the Glock or the .22 Derringer that had also been stolen from Dobson. Austin admitted that he was aware that Fairow was wanted for outstanding warrants and that the police were looking for him.

Officer Jason Sandine testified that on the night in question he drove past two black males, one of whom, Fairow, attempted to shield his face from the police as they passed. According to Sandine, Austin ordered him over the radio to "check those two out." When he turned around, Fairow ran between some buildings at a lumber yard. Sandine subsequently lost sight of Fairow, but Fairow was discovered by Austin and Officer Bobo. Sandine confirmed that, when the police cuffed Fairow and rolled him over, Fairow was lying on an old-style Stuttgart police badge. Sandine identified the badge as the type he was issued when he was an auxiliary officer.

The State rested and Fairow moved for a directed verdict. In pertinent part, he argued that there was insufficient evidence that the firearm was in his possession. He further asserted that the police did not see him throw the weapon and that the officers had "no knowledge" of how long the gun had been on the ground. The motion was denied.

Fairow testified in his case-in-chief. He denied possessing the gun or the badge and asserted that the badge was found several feet from him, not under him as the police claimed. According to Fairow, he ran from the police because he did not have the money to pay the fines that he owed. He also denied hiding beneath a bush and claimed that the police were lying about his shoes. Fairow properly renewed his directed verdict motion at the close of all the evidence.

On appeal, Fairow argues that the evidence was insufficient to warrant the conclusion that he possessed the firearm. He asserts that both Austin and Sandine testified that they did not see him with a firearm in his possession. Further, citing Knight v. State, 51 Ark. App. 60, 908 S.W.2d 644 (1995), he argues that the State failed to prove that the alleyway was immediately and exclusively accessible and subject to his control. Fairow contends that "anyone," prior to his entry into the alleyway, could have left the weapon there. We find Fairow's argument unpersuasive.

When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. Resolution of conflicts in testimony and assessment of witness credibility is for the fact-finder. Id.

Here both Sgt. Austin and Officer Sandine testified that they found in Fairow's possession a Stuttgart auxiliary police badge, which Dobson identified as having been stolen from his truck along with his Glock handgun. Further, Austin and Sandine's testimony established that the stolen handgun was found mere yards away from where they apprehended Fairow and near a path that was in part established by Fairow's footprints and the officers' observations of where Fairow had run. While it is true that the State did not prove Fairow was in actual possession of the handgun, it is of no moment. Proof of actual possession is not necessary in order to establish theft by receiving; proof of constructive possession will suffice. Doubleday v. State, 84 Ark. App. 194, 138 S.W.3d 112 (2003).

On this point, we believe that Fairow's reliance on Knight v. State, supra, is misplaced. In Knight, we reversed a conviction for a minor in possession of a handgun on school property where the weapon was found in a book bag that the appellant did not have on his person and that did not contain any of his personal effects, and the book bag had been accessible to a classroom "full of other students." In the instant case, the gun was found at approximately 3:30 a.m. in an alleyway where Fairow and Fairow alone had recently been seen. Furthermore, Sgt. Austin testified that there was a heavy dew that formed on the ground and nearby buildings, yet the gun itself was dry. The latter testimony establishes that the gun was not on the ground for a long period of time. Under these facts, the circumstantial case for Fairow having had possession of the handgun is much stronger than in Knight.

Furthermore, in the instant case, there is testimony that Fairow attempted to conceal himself from police and actually fled when Officer Sandine turned around to "check him out." We find this evidence makes the instant case analogous to Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990), where the supreme court upheld a conviction for theft by receiving based in large part on other corroborative evidence of guilt. While it is true that Fairow offered an explanation for his flight, as previously noted, under our standard of review, we do not consider conflicting evidence or delve into issues of witness credibility. Harris v. State, supra.

Affirmed.

Robbins and Griffen, JJ., agree.

1 The firearm was allegedly stolen; hence proof of possession is required for both offenses.