Andre Crawford v. State of Arkansas

ar04-768

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR04-768

September 28 , 2005

ANDRE CRAWFORD

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

APPEAL FROM PHILLIPS COUNTY CIRCUIT COURT

[NO. CR 2002-258]

HONORABLE L.T. SIMES,

CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

A Phillips County jury found appellant Andre Crawford guilty of simultaneous possession of firearms and drugs, possession of a controlled substance (marijuana) with intent to deliver, and possession of firearms by certain persons. Crawford was sentenced to forty years' imprisonment. Crawford has four arguments on appeal: (1) the trial court erred by not granting a continuance when his counsel announced that he was not ready for trial; (2) the trial court erred by failing to grant his motion in limine; (3) the trial court erred in allowing the State to introduce an affidavit for a search warrant containing an alleged hearsay statement; (4) the trial court erred in failing to grant his motion for a directed verdict. We affirm on all points.

Crawford was charged with crimes filed under two separate criminal informations. One information concerned a drive-by shooting incident and the other information concerned the possession of an illegal substance and firearms. The State elected to try the possession case first, and Crawford's attorney moved for a continuance because he stated that he was misled by the prosecutor about which case would be heard first so he was not prepared to try the possession case. The trial court denied Crawford's motion for continuance.

The testimony revealed that on July 9, 2002, at approximately 12:35 a.m., police officers of the West Helena Police Department were called to investigate the shooting of Robert Woods. Woods had been shot in the stomach by a person in a moving car. Woods told police officers that Crawford was the person who shot him. Woods later picked Crawford out of a lineup as the person who shot him. Jason Braggs and Marcus Davis witnessed the shooting and identified the shooter to the police as Crawford. The police recovered four .45 caliber shell casings at the scene. A search warrant was obtained and executed at Crawford's residence the next morning on July 10, 2002. The police found a .270 rifle in Crawford's bedroom closet; a loaded .45 caliber pistol under a couch cushion in the living room; and seven ounces of marijuana, individually packaged in thirteen bags, each of which weighed approximately one-half ounce, hidden under the springs of the couch.

At his trial for possession of a controlled substance and firearms, Crawford moved to exclude testimony from police officers concerning the fact that Crawford had been identified by witnesses as the one who fired shots in a drive-by shooting, during which a man was injured, on the evening before the drugs and firearms were found in his house. The trial court denied Crawford's motion in limine and allowed the police officers to testify that Crawford had been identified as the shooter in the drive-by shooting.

The State called three police officers who each testified that witnesses Robert Woods, Marcus Davis, and Jason Braggs had identified Crawford as the shooter shortly after the incident. Each police officer also testified as to the details of the shooting. Robert Woods, the victim of the drive-by shooting, testified at trial that he was not sure that it was Crawford who shot him, contradicting his earlier statements to police. A firearm and tool marks examiner testified for the State that the bullets found at the drive-by shooting scene were fired from the pistol found at Crawford's house. During its case-in-chief, the State introduced the affidavit for the search warrant for Crawford's home into evidence. Crawford objected to the admission of the affidavit, but the trial court admitted it into evidence over Crawford's objection.

Maxie Holliman, Crawford's cousin, testified for the defense that, on the night of the drive-by shooting, she saw Crawford in England, Arkansas, around midnight just as he was leaving her

mother's house. Chaffa Key, also Crawford's cousin and another defense witness, testified that she saw Crawford in England, Arkansas, at approximately midnight. Crawford's mother testified that he had been in England, Arkansas, on July 8, and that she had seen Crawford give his house keys to a friend named Calhoune on July 1, 2002. Marcus Davis, a witness to the drive-by shooting, testified for the defense that he could not say with certainty that it was Crawford who was the shooter even though he had previously signed a statement for the police in which he identified Crawford as the shooter. Jason Braggs, another eyewitness to the drive-by shooting, also testified that he could not identify the shooter even though he had previously signed a statement naming Crawford as the shooter. Kevin Bryant testified that someone named Calhoune was the shooter in the drive-by and that he was in the car with Calhoune when Calhoune shot at Marcus Davis. Bryant also testified that, from a distance, he saw Calhoune take a big garbage bag and a rifle into Crawford's house on the night of the drive-by shooting.

Crawford took the stand in his own defense. He testified that he arrived in West Helena, Arkansas, from England around 12:40 or 12:50 a.m. on July 10. He denied being the shooter in the drive-by shooting, and he denied any knowledge of the marijuana and firearms found in his house.

The jury found Crawford guilty of simultaneous possession of firearms and drugs, possession of a controlled substance (marijuana) with intent to deliver, and possession of firearms by certain persons.

We first consider Crawford's argument that the trial court erred when it denied his motion for directed verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). Evidence, direct or circumstantial, is sufficient if it is substantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. This Court will only consider evidence that supports the verdict. Id. In reviewing sufficiency of evidence, this Court looks at all evidence even if some evidence is determined to be inadmissible. Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994).

Crawford was convicted of simultaneous possession of firearm and drugs, possession of a controlled substance (marijuana) with intent to deliver, and possession of firearms by certain persons. The State need not prove that the accused physically possessed 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, 356 Ark. 345, 151 S.W.3d 770 (2004). 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, such as the proximity of the contraband to the accused, the fact that it was in plain view, and the ownership of the property where the contraband is found. Id.

On July 9, 2002, at approximately 12:35 a.m., police officers were called to investigate the shooting of Robert Woods. Woods identified Crawford as the person who shot him. Jason Braggs and Marcus Davis witnessed the shooting and identified Crawford as the shooter. The police recovered four .45 caliber shell casings at the scene. Crawford was seen at 1:23 a.m. driving around the neighborhood. A search warrant was obtained and executed at Crawford's residence the next morning. Crawford was listed in the phone book as living at that address. Crawford had a key to the residence on his key chain. Crawford was in the living room when the police entered, and two of his friends were also present. The police found a .270 rifle in Crawford's bedroom closet, a loaded .45 caliber pistol under a couch cushion in the living room, and seven ounces of marijuana, individually packaged in thirteen bags, hidden under the springs of the couch. Marijuana seeds were also found in a kitchen cabinet. Medicine bottles and letters with Crawford's name on them were found in the bedroom where the rifle was found. The pistol was loaded with ammunition, the same type of ammunition found at the scene of the drive-by shooting.

A firearms and tool marks examiner testified that two of the shell casings found at the shooting scene were shot from the pistol found at Crawford's residence. The pistol was found in Crawford's house, under a couch cushion, next to thirteen bags of marijuana, which were below the couch springs. The guns and drugs were found in a place immediately and exclusively accessible to Crawford and subject to his control. The rifle found in the bedroom closet was found in a room that contained other items with his name on them. The evidence is sufficient to show that, at the very least, Crawford constructively possessed the marijuana and firearms. Crawford admitted that he was a convicted felon, and he possessed seven ounces of marijuana. The presumptive amount of marijuana needed to establish intent to deliver is one ounce. Ark. Code Ann. § 5-64-401(d) (Repl. 1997). The evidence is clearly sufficient enough to convict Crawford of being a felon in possession of a firearm and possession of a controlled substance (marijuana) with intent to deliver.

To be convicted of the simultaneous possession of drugs and firearms, the evidence must show that the defendant possessed a firearm and that a connection existed between the firearm and the controlled substance. Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998); see also Ark. Code Ann. § 5-74-106 (Repl. 1997). The pistol and the marijuana were located within mere feet of each other, both concealed below the cushions of the same couch. The gun was loaded and the marijuana was packaged for individual sale. A clear connection existed between the marijuana and the gun. Thus, viewing the evidence in the light most favorable to the State and considering only the evidence that supports the verdict, substantial evidence supports Crawford's convictions.

For his next point on appeal, Crawford argues that the trial court erred when it denied his motion for continuance because Crawford's attorney stated that he was not ready to go to trial. Crawford was charged with crimes filed under two separate criminal informations, Phillips County Circuit Nos. CR-02-258 and CR-02-259. On December 1, 2003, the trial court called both cases for readiness and Crawford moved to have both cases set for a suppression hearing on December 4, 2003. The trial court then announced that both cases would be set for trial on December 4, 2003, with the suppression hearing to be held earlier that day. The suppression hearing, which involved the charges in both cases, was held on Thursday and Friday, December 4 and 5, 2003. The trial court held pre-trial hearings, and a jury was selected on Monday, December 8, 2003. The trial began on Tuesday, December 9, 2003.

Crawford's attorney alleged that the prosecutor made representations to Crawford that he would first try the shooting case and then the possession case. The prosecutor admitted to telling Crawford's attorney on Friday evening after the suppression hearing that he thought they would try the shooting case first. According to Crawford's attorney, he asked the prosecutor to call him "if anything came up over the weekend." The prosecutor told Crawford's attorney that he did not wish to speak with him over the weekend, and he did not call. These alleged statements by the prosecutor are not contained in the record. The trial court set both cases for readiness and the suppression hearing for December 4, 2003. After the suppression hearing concluded on the Friday afternoon of December 5, 2003, the trial court adjourned without stating which case would go to trial the following Monday. On Monday, the prosecutor began with CR-02-258, the possession case, instead of CR-02-259, the shooting case.

Crawford objected to trying the possession case first. Defense counsel stated that he was not prepared to try the possession case because he had relied on the prosecutor's statement that he would try the shooting case first. Crawford's attorney told the trial court that it was his understanding that the shooting case would be tried first and that the possession case would be continued to the next term of court. The trial court denied Crawford's motion for continuance and announced that the trial would proceed.

When reviewing the grant or denial of a motion for continuance, we employ an abuse-of-discretion standard. Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002). Appellant must not only demonstrate that the trial court abused its discretion by denying the motion but must also show prejudice that amounts to a denial of justice. Id. When a motion for continuance is based on a lack of time to prepare, this court will consider the totality of the circumstances. Green v. State, 354 Ark. 210, 118 S.W.3d 563 (2003). A lack of diligence alone is sufficient to deny a continuance. Id.

Here, the trial court considered the crowded docket in Phillips County, stated that both cases contained the same basic set of facts, and noted that the trial court was never notified that there was an agreement between the two attorneys that a certain case would be tried first. The trial court gave no indication that the possession case would not go to trial on the day it was set. Crawford's attorney announced that he was ready on both cases at the beginning of the suppression hearing. Moreover, Crawford does not show how he was prejudiced by the denial of his continuance motion and only makes the blanket assertion that he was denied effective assistance of counsel. Crawford's attorney did not diligently prepare for both cases when he knew there was a chance that they could both be tried. The trial court, therefore, did not err in denying Crawford's motion for a continuance.

Next, Crawford argues that the trial court erred in failing to grant his motion in limine to prevent police testimony that Crawford was identified as the shooter in a drive-by shooting the night before the items were seized from his house. Crawford argued at trial that the evidence of this "bad act" was not admissible under Rule 404(b) (2005) of the Arkansas Rules of Evidence because the purpose was to show his bad character. He further argued that even if the "bad act" testimony was admissible under Rule 404(b), it was nevertheless inadmissible under Arkansas Rule of Evidence 403 (2005) because any probative value would be substantially outweighed by the danger of unfair prejudice. The State contended the testimony was highly probative of the issue of Crawford's motive, knowledge, and identity, and that the probative value outweighed any danger of unfair prejudice. The trial court allowed the testimony into evidence.

Arkansas Rule of Evidence 404(b) permits evidence of prior acts to be admitted as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Evidence of prior bad acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. Id. Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001). Evidence of prior bad acts is admissible under Rule404(b) if its probative value outweighs the danger of unfair prejudice. Ark. R. Evid. 403 (2005); Tull v. State, 82 Ark. App. 159, 119 S.W.3d 523 (2003). The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. Garner v. State, 81 Ark. App. 309, 101 S.W.3d 857 (2003). We have long recognized that the list of exceptions to inadmissibility under Rule 404(b) is not an exclusive list but represents examples where such crimes, wrongs, or acts would be relevant and admissible. Jones v. State, 72 Ark. App. 271, 35 S.W.3d 345 (2000).

The trial court did not abuse its discretion in admitting the testimony of the police officers that Crawford had been identified as the shooter in a drive-by shooting on the night before his home was searched and guns found in his home. Crawford stated at trial that he did not know the guns were in his home, and the fact that Crawford was identified as having a gun the night before two guns were found in his home provides independent relevance as to the facts that Crawford possessed a gun, that the gun belonged to Crawford rather than someone else in the home, and that Crawford had a motive for hiding the gun in his home.

Crawford also argues that the police officers' testimony that three witnesses had identified Crawford as the shooter is hearsay, and the trial court erred in allowing hearsay into evidence. Hearsay is "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ark. R. Evid. 801(c) (2005). A statement of identification is not hearsay when it is a prior statement by a witness and the declarant testifies at the trial and is subject to cross-examination. Ark. R. Evid. 801(d)(1)(iii). Moreover, a police officer may properly testify as to the existence and circumstances of an extrajudicial identification by witnesses if there is no defect in the identification procedure, and if the person making the extrajudicial identification is present at trial and subject to cross-examination, recall, or is subject to being called as a hostile witness by the defense. Hilton v. State, 278 Ark. 259, 644 S.W.2d 932 (1983); Martin v. State, 272 Ark. 376, 614 S.W.2d 512 (1981).

Here, the victim of the shooting, Robert Woods, testified for the State. He admitted that he told two police officers that Crawford shot him and that he had picked out Crawford's photograph as the one who shot him from a photo lineup. Both Davis and Bragg, who the police officers testified had also identified Crawford as the shooter, testified at the trial. The police officers' statements therefore were not hearsay under Arkansas Rule of Evidence 801(d)(1)(iii), and they could properly testify that each of the witnesses had identified Crawford as the shooter.

For his remaining point on appeal, Crawford argues that the trial court erred in allowing the State to introduce into evidence an affidavit for a search warrant because it was not relevant and it contained hearsay. This Court will not reverse a trial court's decision regarding the admission of evidence absent a manifest abuse of discretion. Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2004). Moreover, this Court will not reverse absent a showing of prejudice. Id.

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401 (2005). The general rule is that all relevant evidence is admissible. Ark. R. Evid. 402 (2005). Relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.

The affidavit for the search warrant contained statements by a police officer that witnesses had identified Crawford as the shooter in a drive-by shooting. The State prosecuted Crawford for being in possession of the items of contraband that were found during the search of Crawford's home. The affidavit, therefore, is relevant because it is the factual predicate for the issuance of the search warrant that uncovered the contraband.

Crawford also argued at trial and now on appeal that the affidavit contained hearsay statements and should not have been admitted into evidence. Hearsay is "a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ark. R. Evid. 801(c). Again, the statements in the affidavit are not hearsay under Arkansas Rule of Evidence 801(d)(1)(iii). Moreover, the same information contained in the affidavit came into evidence through the testimony of the police officers at trial. Because the statements contained in the affidavit were cumulative, Crawford cannot show prejudice. See Lewis v. State, 74 Ark. App. 61, 48 S.W.3d 535 (2001) (stating that prejudice is not presumed and there is no prejudice when the evidence admitted is merely cumulative).

Affirmed.

Bird and Baker, JJ., agree.