Brown v. State
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Cite as 2009 Ark. App. 873
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CACR09-591
GREGORY BERNARD BROWN,
APPELLANT
V.
STATE OF ARKANSAS,
APPELLEE
Opinion Delivered
DECEMBER 16, 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
[NO. CR2008-2476]
HONORABLE CHRISTOPHER
CHARLES PIAZZA, JUDGE
AFFIRMED
KAREN R. BAKER, Judge
In a bench trial in Pulaski County Circuit Court, appellant, Gregory Bernard Brown, was
convicted of possession of cocaine with intent to deliver in violation of Arkansas Code
Annotated section 5-64-401(a)(1)(A) (Supp. 2007).
He was sentenced to ten years’
imprisonment, with five of those years suspended. As his sole point on appeal, appellant asserts
that the court erred in denying his motion to dismiss the charge of possession of cocaine with
intent to deliver because the State failed to introduce substantial evidence that he committed the
offense. We affirm.
At approximately 4:30 p.m. on January 18, 2008, Officer Dennis Hutchins, a Little Rock
police officer, initiated a stop of the vehicle appellant was driving because of a broken brake
light. Officer Hutchins described the vehicle as a two-door, 1974 Cadillac DeVille. The
Cite as 2009 Ark. App. 873
passengers included Arthur Patterson, who was sitting in the front passenger seat, and
appellant’s five year-old-son, who was sitting in the middle of the front bench seat. Officer
Hutchins testified that appellant provided him with a driver’s license, but was unable to provide
any registration, bill of sale, or any other proof of ownership. Therefore, pursuant to policy,
Officer Hutchins testified that he would conduct an inventory search and the vehicle would be
towed. Officer Hutchins asked appellant and Patterson to step out of the vehicle. Because of
cold temperatures, the child was allowed to remain inside the vehicle. An inventory search
revealed a white “to-go box” in the front passenger seat, which, at the time of the stop, was in
Patterson’s lap. Patterson and the child were eating fish from the container at the time of the
stop. The search also revealed another white “to-go box” in the floorboard. The child made
the statement, “That’s my daddy’s fish.” Officer Hutchins testified that he opened the second
“to-go box,” and it contained a “clear bag containing off-white, rock-like items and some
powder that [he] suspected at the time to be crack cocaine.” The items were marked and
prepared for storage as evidence. At that point, Officer Hutchins did a search of appellant’s
person. On appellant, Officer Hutchins found five one-hundred dollar bills, fourteen twentydollar bills, and one dollar and forty-three cents. The total amount of cash on appellant’s person
was $781.43.
Patterson testified that January 18, 2008, he and appellant went to Peter’s Fish Market
to get some fish. Patterson testified that after they were stopped by Officer Hutchins, he saw
appellant “[throw] some drugs in the car.” He stated that the drugs fell into a container that was
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in appellant’s son’s lap. When Patterson saw the drugs land in the container in the child’s lap,
Patterson “pushed the container off the little boy” and it landed in the floor. Until he saw
appellant toss the drugs into the container, he claimed that he did not know that appellant had
drugs in the vehicle. Patterson testified that there was no second container of food in the
passenger floorboard of the vehicle; he also stated that there was a “bag” in the floorboard and
he did not know if there was another container of food in the bag or not. After he was asked
to exit the vehicle, Patterson underwent a search of his person. Although nothing was found
on his person, he was arrested for possession of a controlled substance. Later, appellant
approached him and asked him if he would “take a charge.” Patterson declined, stating that he
“wouldn’t just mess up [his] life like that.”
Beth Bakalekos of the Little Rock Police Department submitted the evidence to the
crime lab. She testified that the lab analysis revealed that the substance tested positive for
cocaine; cocaine base, 3.07 grams, and cocaine hydrochloride, 0.8 grams. She testified that the
value of the cocaine base would be approximately $250, and the value of the cocaine
hydrochloride would be $75 to $80. She testified that “having numerous twenty-dollar bills is
typically indicative of someone who’s selling.” As to Patterson’s statements, she testified that
his testimony at trial about appellant tossing the dope into the child’s food container was
consistent with his statement to her during the investigation.
At this point in the trial, appellant’s counsel made a motion for dismissal, alleging that
the State failed to prove beyond a reasonable doubt that appellant was actually the one who was
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in possession of cocaine before it was thrown. The trial court denied the motion.
Appellant testified on his own behalf. He testified that on January 18, 2008, he and
Patterson got take-out from Peter’s Fish Market. As they drove, Patterson fed appellant’s son
fish from Patterson’s “to-go box.” Appellant testified that his styrofoam “to-go container” was
in the floorboard. Once Officer Hutchins pulled him over and he was unable to provide proof
of ownership or registration, Officer Hutchins had him step out of the vehicle, patted him
down, put him in handcuffs, and put him in the back of the police car. Appellant denied
Patterson’s statement that he threw the drugs into the vehicle as he exited. He stated that he
“did not do anything else at any time when [he] was asked to step out of the vehicle”; he did not
reach into his pocket and pass anything to Patterson or throw anything across the vehicle.
Appellant testified that he had “no knowledge at all of how cocaine could have been found in
[his] car.” When asked about his prior convictions, appellant admitted that he had been
convicted of possession of a controlled substance with intent to deliver, second-degree murder,
and a number of counts of residential burglary and theft of property.
At the close of the evidence, appellant’s counsel renewed his motion for dismissal, which
was again denied by the court. This appeal followed.
Appellant’s argument on appeal challenges the sufficiency of the evidence. A motion to
dismiss in a bench trial is identical to a motion for a directed verdict in a jury trial in that it is a
challenge to the sufficiency of the evidence. Springs v. State, 368 Ark. 256, 244 S.W.3d 683
(2006). In reviewing a challenge to the sufficiency of the evidence, we will not second-guess
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credibility determinations made by the fact-finder. Stone v. State, 348 Ark. 661, 74 S.W.3d 591
(2002). Instead, we view the evidence in the light most favorable to the State and consider only
the evidence that supports the verdict. Id. We affirm the conviction if there is substantial
evidence to support it. Wilson v. State, 88 Ark. App. 158, 196 S.W.3d 511 (2004). Substantial
evidence is evidence of sufficient force and character to compel a conclusion one way or the
other with reasonable certainty, without resorting to speculation or conjecture. Crutchfield v. State,
306 Ark. 97, 812 S.W.2d 459 (1991). 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. McKenzie v. State, 362 Ark. 257, 208 S.W.3d 173 (2005). A fact-finder may accept or
reject any part of a witness’s testimony, and its conclusion on credibility is binding on this court.
E.g., White v. State, 47 Ark. App. 127, 886 S.W.2d 867 (1994). The fact-finder is not required to
believe any witness’s testimony, especially the testimony of the accused, because he is the person
most interested in the outcome of the trial. Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882
(2003).
Appellant was convicted of possession of cocaine with intent to deliver in violation of
Arkansas Code Annotated section 5-64-401(a)(1)(A) (Supp. 2007). That section states as
follows:
(a) Controlled Substance–Manufacturing, Delivering, or Possessing with Intent to
Manufacture or Deliver. Except as authorized by subchapters 1-6 of this chapter, it is
unlawful for any person to manufacture, deliver, or possess with intent to manufacture
or deliver a controlled substance. Any person who violates this subsection with respect
to:
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(1) Schedule I or II Narcotic Drug or Methamphetamine.
(A)(i) A controlled substance classified in Schedule I or Schedule II that is a
narcotic drug or methamphetamine, and by aggregate weight, including an
adulterant or diluent, is less than twenty-eight grams (28 g), is guilty of a felony
and shall be imprisoned for not less than ten (10) years nor more than forty (40)
years, or life, and shall be fined an amount not exceeding twenty-five thousand
dollars ($25,000).
(ii) For any purpose other than disposition, this offense is a Class Y felony.
Appellant argues that the trial court erred in denying his motion to dismiss because the
State’s proof of appellant’s guilt “was so contradictory that the fact-finder had to guess whether
[appellant] possessed the bag of cocaine at issue.” Both Patterson and Officer Hutchins testified
as to a bag of cocaine that was found inside appellant’s vehicle. Appellant contends, however,
that Patterson’s testimony about there being a carry-out “bag” in the floorboard of the vehicle
that may have contained a “to-go box” and Officer Hutchins’s testimony about another box (or
container) in the floorboard of the vehicle was “irreconcilable” and resulted in the court having
to “guess” or “speculate” that appellant was in possession of cocaine. This argument is
unavailing. This court will not second-guess credibility determinations made by the fact-finder.
Epps v. State, 100 Ark. App. 344, 268 S.W.3d 362 (2007). The credibility of witnesses is an issue
for the jury and not the court. Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007). 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.
In the present case, appellant was the driver of the 1974 Cadillac DeVille that was pulled
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over for a broken brake light. While appellant could not produce any registration or proof of
ownership of the vehicle, he told officers that he had recently purchased the vehicle and was in
the process of completing the paperwork. Appellant was asked to step back to the patrol car,
and the vehicle was searched. The search revealed two to-go containers of food, one of which
contained a clear bag of off-white, rock-like items and some powder that later tested positive for
cocaine base and cocaine hydrochloride. In reference to the “to-go box” that contained the
cocaine, appellant’s son made the statement, “That’s my daddy’s fish.” On appellant’s person,
officers found five one-hundred dollar bills, fourteen twenty-dollar bills, and one dollar and
forty-three cents, totaling $781.43 in cash. While there was conflicting evidence as to whether
the cocaine was found in a to-go container or in a bag, the fact finder has the sole authority to
evaluate the credibility of witnesses and to apportion the weight to be given to the evidence. See
Bell v. State, 334 Ark. 285, 937 S.W.2d 806 (1998). We hold that under these facts, the evidence
is sufficient to support appellant’s conviction.
Affirmed.
HENRY and BROWN, JJ., agree.
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