Nicholas Montrell Luster v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

NICHOLAS MONTRELL LUSTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-979

MARCH 23, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 04-592]

HON. JOHN W. LANGSTON,

JUDGE

AFFIRMED

Terry Crabtree, Judge

A jury sitting in the Pulaski County Circuit Court convicted the appellant, Nicholas Montrell Luster, of possessing Phenyl Cyclohexyl Piperidine, commonly known as PCP, and he was sentenced as a habitual offender to twelve years in the Arkansas Department of Correction. On appeal, he claims that the State failed to present evidence that he knowingly possessed the substance. We affirm.

At the trial level, appellant made timely directed-verdict motions arguing that the State failed to show that he was aware that the substance he possessed was PCP. The trial court denied the motions. By making timely directed verdicts below, appellant preserved his challenge to the sufficiency of the evidence. See Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). In reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the verdict, considers only that evidence supporting it, and affirms if substantial evidence, direct or circumstantial, supports it. Id. Substantial evidence is evidence sufficient to compel a conclusion beyond speculation or conjecture. Id.

Appellant claims that the State failed to prove with sufficient evidence that he possessed the requisite mental state at the time of the offense. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990). Intent or state of mind can seldom be positively known to others, so it ordinarily cannot be shown by the facts and circumstances in evidence. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992). Therefore, circumstantial evidence of culpable mental state may constitute substantial evidence to sustain a guilty verdict. Kelly v. State, 75 Ark. App. 144, 55 S.W.3d 309 (2001). The factfinder is also allowed to draw upon its common knowledge and experience to infer intent from circumstances. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995).

On November 7, 2004, North Little Rock Police Officer Luke Howell was on patrol in downtown North Little Rock along 16th Street, which he described as a "very hot crime area." Howell pulled up to the intersection of 16th and Schaer Street and stopped. While stopped there, he saw two men, one of whom was appellant, standing on the corner talking. As Howell watched from about ten to fifteen feet away, the man with appellant appeared to notice the officer, and he threw to the ground what appeared to be a baggie of crack cocaine. Howell got out of his patrol car and placed the man in custody. While doing so, Howell came within five feet of appellant. The officer saw appellant back away from him and throw down what appeared to be a marijuana cigarette. Howell stated, "I saw [the cigarette] leave his hand, and I saw it hit the ground."

Howell subsequently placed appellant in custody and searched appellant's coat incident to arrest. The search yielded "aluminum foil with another cigarette wrapped inside of it which appeared to be . . . PCP oil on the cigarette." Howell believed that it was PCP oil based upon the foul "urine" smell of the cigarette, the cigarette's wet texture, and the fact that it was wrapped in aluminum foil. Howell took the two cigarettes into his custody, placed them into an evidence envelope, and submitted them to the Arkansas Crime Laboratory for analysis. Gary Dallas, chief forensic chemist at the crime laboratory, testified that he examined the cigarettes, and he determined that both were tobacco cigarettes laced with PCP.

Arkansas Code Annotated section 5-64-401 (Repl. 1997) prohibits the possession of a controlled substance. Subsection (a) states, "[I]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance." Because the statute does not specify a culpable mental state, a knowing or intentional mental state is required by default. See Ark. Code Ann. § 5-2-203(b) (Repl. 1997).

The criminal code defines the range of possible culpable mental states. Arkansas Code Annotated section 5-2-202 (Repl. 1997) provides, in relevant part:

As used in this code, unless the context otherwise requires, there are four (4) kinds of culpable mental states, which are defined as follows:

(2) "Knowingly." A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result[.]

Id. Under these statutes, the State had to offer substantial evidence at trial that appellant was "aware" that he was in possession of PCP.

Based upon the fact that appellant backed away and discarded one tobacco cigarette laced with PCP when Officer Howell arrived, the jury could have inferred that appellant knew that he possessed contraband. In other words, appellant's attempt to conceal the crime was evidence of his consciousness of guilt. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). Based upon the fact that the other cigarette was found in his coat pocket, the jury could have inferred that appellant simply did not have time to dispose of that one before he was arrested and searched.

We hold that the trial court did not err in denying appellant's directed-verdict motions as substantial evidence supports his conviction. Accordingly, we affirm.

Affirmed.

Hart and Vaught, JJ., agree.