Draper v. State
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Cite as 2010 Ark. App. 628
ARKANSAS COURT OF APPEALS
DIVISION I
CACR10-209
No.
LORI SUE DRAPER,
APPELLANT
V.
STATE OF ARKANSAS,
APPELLEE
Opinion Delivered SEPTEMBER
22, 2010
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
[NO. CR-08-1492]
HONORABLE JAMES O. COX,
JUDGE,
AFFIRMED
KAREN R. BAKER, Judge
On September 23, 2009, a jury in Sebastian County convicted appellant Lori Sue
Draper of one count of possession of methamphetamine and one count of possession of drug
paraphernalia. Appellant was sentenced to ten years on each count with five suspended for
each count, with the sentences to run consecutively. Appellant filed a timely notice of appeal
on October 12, 2009. On appeal, appellant challenges the sufficiency of the evidence to
support both convictions. We affirm.
I. Statement of the Facts
The charges against appellant arose on December 27, 2008 when Detective Cody
Elliott of the street crimes division of the Fort Smith Police Department was dispatched to
room number 18 at the Capri Motel. The motel manager stated that the room had been
rented in appellant’s name for two days. Detective Elliott testified that the motel is known
Cite as 2010 Ark. App. 628
for its occupants engaging in drug activity and prostitution. After knocking on the door, Det.
Elliott stated that a male, Jackie Smith, answered holding a crack pipe. The detective also
found a box in Smith’s pocket containing three baggies with a substance later identified as
methamphetamine. As Smith was being placed under arrest for possession of drugs and
possession of drug paraphernalia, appellant came out of the bathroom and jumped on the bed.
Detective Elliott testified that it was approximately one-and-a-half minutes from the time he
entered the room until appellant appeared. Officer Chris McCoy testified that he watched
appellant while Det. Elliott placed Smith in the patrol car.
When Det. Elliott came back to the room, he assumed that appellant was under the
influence of drugs as she appeared nervous, agitated, and was twitching. He stated that she was
clutching a purse that she never denied was hers in a manner suggesting something in it
needed to be concealed. He asked for permission to examine the purse and she agreed.
Detective Elliott testified that he took the purse and dumped its contents on the bed. Some
of the items that fell out were a hairbrush, makeup, and a silver and glass tin container with
a bow on it. Inside of the tin, he found a brown bottle with what appeared to be
methamphetamine residue. In testifying, a forensic chemist from the Arkansas State Crime
Lab identified the residue as methamphetamine and dimethyl sulfone, which is a common
cutting agent used to increase the weight of the drug. The chemist added that the presence
of residue was indicative of the bottle having been used to store methamphetamine at some
point.
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After removing the bottle and a piece of Styrofoam or packing material from the tin,
Det. Elliott found two small baggies that contained a crystalline substance, later identified as
methamphetamine and dimethyl sulfone. He stated that appellant never denied the tin was
hers, and asserted that Smith had given to her a ring in it that day because it was her birthday.
While in the motel room, Det. Elliott noticed appellant sitting on the sleeve of a denim
jacket, and for his safety, he checked it for weapons. He shook the jacket, and out of one
pocket fell a syringe housing a clear liquid substance that was later identified as
methamphetamine and dimethyl sulfone. In searching the other pocket, he found some
unused syringes still in the plastic. Other items that he noticed in the room were duffle bags,
male and female clothing and accessories, appellant’s glasses, food, and a curling iron.
Detective Elliott arrested appellant, and he testified that only then did Smith state that all of
the drugs were his.
Smith appeared as a witness for appellant. He testified that he and appellant were
lovers and that they had been living together for about ten or eleven months at a location
about two miles from the motel. Smith said the reason that they were at the motel was to
allow some friends to stay at their place, and he verified that appellant had clothes and
possessions in the room. Smith testified that he never gave appellant the tin container with
the bow on it, just the ring. He claimed that he put two baggies of drugs in the tin and
placed it behind the television and a wall, and that appellant must have gotten the box from
behind the television when he was being taken to the police car. Smith stated the denim
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jacket was his although he did not know its size, brand, where it was purchased, how much
it cost, or even its location at the time of trial. Smith testified that while appellant was away
from the room on December 27, 2008, he got a syringe out of his jacket, loaded it with
methamphetamine, and placed it in a dresser drawer. He had no idea what appellant was
wearing on the day of their arrest, and he denied ever using drugs with appellant in the two
years prior to the date of their arrests. He testified that he did not look in appellant’s purse
that day.
The State introduced into evidence, without objection, the following items: 1) the
crack pipe Smith had in his hand when he opened the door; 2) the unused syringes in the
clear plastic and the methamphetamine-filled syringe found in the denim jacket; 3) the brown
botttle, plastic baggies that contained methamphetamine, tin, and Styrofoam that were in the
purse; and 4) the box that was in Smith’s pocket. The lab reports showing the results of the
analysis of the items were introduced. Paul Smith, a narcotics detective with the Fort Smith
Police Department, testified that the following items in this case were drug paraphernalia: 1)
baggies; 2) syringes; and 3)packing materials used to hide the drugs such as the Styrofoam and
the tin.
II. Sufficiency of the Evidence
We treat a motion for a directed verdict as a challenge to the sufficiency of the
evidence. Saul v. State, 365 Ark. 77, 81, 225 S.W.3d 373, 377 (2006) (citing Tillman v. State,
364 Ark. 143, 217 S.W.3d 773 (2005)); Ingle v. State, 2010 Ark. App. 409, ___ S.W.3d ___.
The test for determining the sufficiency of the evidence is whether the verdict is supported
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Cite as 2010 Ark. App. 628
by substantial evidence, direct or circumstantial. Walley v. State, 353 Ark. 586, 112 S.W.3d
349 (2003). Substantial evidence is that “which is of sufficient force and character that it will,
with reasonable certainty, compel a conclusion one way or the other, without resorting to
speculation or conjecture.” Saul v. State, 365 Ark. at 81, 225 S.W.3d at 377. With regard to
circumstantial evidence, such evidence may provide a basis to support a conviction, but it
must be consistent with the defendant’s guilt and inconsistent with any other reasonable
conclusion. Id. When we review a challenge to the sufficiency of the evidence, this court
views the evidence in the light most favorable to the State, and only evidence supporting the
verdict will be considered. Walley v. State, 353 Ark. 586, 112 S.W.3d 349 (2003) (citing
Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003)). Furthermore, a jury need not lay aside
its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt
from improbable explanations of incriminating conduct. Id.
Appellant alleges error in the trial court’s denial of her motion for a directed verdict.
Specifically, she asserts that the State failed in its burden to show that she constructively
possessed the drugs found in three locations: 1) her purse; 2) the denim jacket; and 3) Jackie
Smith’s pockets. Appellant was found guilty of one count of possession of methamphetamine.
Under § 5-64-401(c)(1) of the Arkansas Criminal Code: “It is unlawful for any person to
possess a controlled substance ....” Ark. Code Ann. § 5-64-401(c)(1) (Supp. 2009). She was
also found guilty of one count of possession of drug paraphernalia under § 5-64403(c)(1)(A)(i) of the Arkansas Criminal Code: “It is unlawful for any person to ... possess
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with intent to use ... drug paraphernalia ....” Ark. Code Ann. § 5-64-403 (c)(1)(A)(I) (Supp.
2009). The term “drug paraphernalia” includes any kind of product or material that can be
used for the storing, containing, injecting, ingesting, or otherwise introducing a controlled
substance into the human body. Ark. Code Ann. § 5-64-101(14)(A) (Supp. 2009).
In Walley v. State, 353 Ark. 586, 112 S.W.3d 34 (2003), the Arkansas Supreme Court
analyzed a claim of sufficiency of the evidence when two or more persons occupy the
location where contraband is found.
Under our law, it is clear that the State need not prove that the accused
physically possessed the 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, that
is, constructively possessed. . . .
Constructive possession can be implied when the controlled substance
is in the joint control of the accused and another. Joint occupancy, though, is
not sufficient in itself to establish possession or joint possession. There must be
some additional factor linking the accused to the contraband. The State must
show additional facts and circumstances indicating the accused’s knowledge and
control of the contraband.
353 Ark. 586, 595, 112 S.W.3d 349, 353-54 (2003) (citations omitted). Building on this
analysis, in Holt v. State, 2009 Ark. 482, ___ S.W.3d ___, the court added,
In order to prove constructive possession, the State must establish two
elements: “(1) that the accused exercised care, control, and management over
the contraband, and (2) that the accused knew the matter possessed was
contraband.”
An additional factor is necessary to link the accused to the contraband
in joint occupancy situations. “It cannot be inferred that one in non-exclusive
possession of premises knew of the presence of drugs and had joint control of
them unless there were other factors from which the jury can reasonably infer
the accused had joint possession and control.”
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Id. at 6, ___ S.W.3d ___, ___ (citations omitted). Other indicators of possession are ownership
of the property where the contraband is found, Abshure v. State, 79 Ark. App. 317, 87 S.W.3d
822 (2002), and an accused’s suspicious behavior coupled with proximity to the contraband.
See Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994).
Appellant argues that there was no evidence showing she knew that the tin found in
her purse contained methamphetamine. The State argues that this issue is not preserved for
review.
After the State rested its case, appellant’s counsel made the following motion:
I would move for a directed verdict in favor of the Defendant in this case. The
State has to have–prove enough evidence by a preponderance of the evidence
in order to carry this case over to a jury wherein the jury would not be
basically guessing or surmising as to the guilt or innocence of this Defendant.
That in particular the State has failed to link the evidence, whether the named
evidence is E-1-A, B, or C, and that would cause some jury to have to guess.
Number two, the items that were found in the denim jacket, didn’t Mr. Smith
say that all the drugs and paraphernalia belonged to him. That particularly the
items that were placed in the denim jacket, as to the charges relating to those,
that ... should be ... certainly thrown out. There has been no link of the items
in the denim jacket with this Defendant other than that she came out, when
ordered to come out she came out and sat down on the only bed in the room
and that happened to be where the jacket was, but there has been no testimony
whatsoever as to who that jacket belonged to. I would submit in that regard
that the only thing that the State might be able to carry forward on are the
issues of what was found in the purse that belonged to–was shown to belong
to Ms. Draper.
The court denied that motion, and at the conclusion of all of the evidence, appellant’s counsel
renewed her directed-verdict motion, which the court denied.
Our law is very well settled that arguments not raised at trial will not be addressed for
the first time on appeal. Rounsaville v. State, 372 Ark. 252, 273 S.W.3d 486 (2008). In fact,
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as appellant conceded that the State had met its burden regarding the drug-related items found
in the purse, then, she can not now in good faith assert otherwise. Smith v. State, 2010 Ark.
App. 135, ___ S.W.3d ___; Stone v. State, 371 Ark. 78, 263 S.W.3d 553 (2007).
Because appellant waived the sufficiency-of-the-evidence argument regarding the items
found in her purse, sufficient evidence supports the jury’s verdict. The purse contained at
least two batches of methamphetamine and four separate items of drug paraphernalia and
those items alone provided sufficient evidence to support appellant’s convictions; therefore,
we need not reach appellant’s remaining arguments. We hold that the trial court did not err
in denying appellant’s motions for directed verdict.
Affirmed.
GRUBER and HENRY, JJ., agree.
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