538 S.W.3d 216 (Ark.App. 2018), CR-17-264, McKinney v. State

• Judge: Gladwin and Murphy, JJ., agree.
• Parties: Kwasi Andrade MCKINNEY, Appellant v. STATE of Arkansas, Appellee
• Citation: 2018 Ark.App. 10,538 S.W.3d 216
• Docket Number: CR-17-264
• Date: 10 January 2018
• Court: Arkansas Court of Appeals

Page 216

538 S.W.3d 216 (Ark.App. 2018)

2018 Ark.App. 10

Kwasi Andrade MCKINNEY, Appellant

v.

STATE of Arkansas, Appellee

No. CR-17-264

Court of Appeals of Arkansas, Division I

January 10, 2018

Page 217

[Copyrighted Material Omitted]

Page 218

APPEAL FROM THE COLUMBIA COUNTY CIRCUIT COURT [NO. 14CR-16-35], HONORABLE DAVID W. TALLEY, JR., JUDGE

Lott Rolfe IV, North Little Rock, for appellant.

Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.

OPINION

LARRY D. VAUGHT, Judge

On November 10 and 24, 2015, law-enforcement officers worked with two confidential informants to purchase methamphetamine from appellant Kwasi McKinney at his residence located at 202 Mulberry in McNeil, Arkansas. Thereafter, on January 28, 2016, pursuant to a search warrant, law-enforcement officers searched McKinney’s home and found methamphetamine, drug paraphernalia, and a firearm. On November 29, 2016, a Columbia County jury found McKinney guilty of delivery of methamphetamine, possession of methamphetamine, maintaining a drug premises, simultaneous possession of drugs and a firearm, possession of methamphetamine with intent to deliver, and possession of a firearm by certain persons.¹ He was sentenced to serve twenty-eight years’,² six years’, eighteen years’, sixty years’, thirty years’, and twelve years’ imprisonment, respectively, to be run consecutively, for a total of 154 years. On appeal, McKinney contends that (1) there was insufficient evidence to support the convictions for simultaneous possession of drugs and a firearm and for possession of a firearm; (2) the circuit court abused its discretion in ordering consecutive sentences; and (3) the circuit court abused its discretion in denying his request for a pretrial hearing. We affirm in part and reverse and remand in part.

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McKinney argues that the evidence was insufficient to support his convictions for simultaneous possession of drugs and a firearm and for possession of a firearm.³ More specifically, he argues that the proof failed to establish that he constructively possessed these items. He cites the testimony of Officer Jonathan Chambers of the Thirteenth Judicial Drug Task Force who stated that there were two other men, Sharde Mullins and Jaylon McKamie, in the home at the time of the search. Chambers also testified that these two men could have placed the drugs and firearm in the closet, but they were not investigated, and the firearm and drugs were not submitted to the crime lab for latent-print testing. Based on this evidence, McKinney argues, " It is not beyond the realm of possibility that someone else planted [the firearm and drugs] there and left [McKinney to] take the fall and face the consequences."

In order to preserve for appeal the issue of the sufficiency of the evidence, a defendant must first raise the issue to the circuit court as provided in Arkansas Rule of Criminal Procedure 33.1. Rule 33.1(a) provides that, in a jury trial, a defendant must challenge sufficiency by a specific motion for directed verdict at the close of the evidence offered by the prosecution and at the close of all the evidence. Ark. R. Crim. P. 33.1(a) (2017). A defendant’s failure to raise the issue at the times and in the manner required by the rule will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the judgment. Ark. R. Crim. P. 33.1(c).

A motion for directed verdict is inadequate if it states " that the evidence is insufficient [and] does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense." Gillard v. State, 372 Ark. 98, 101, 270 S.W.3d 836, 838 (2008) (citing Ark. R. Crim. P. 33.1(c); Smith v. State, 367 Ark. 274, 239 S.W.3d 494 (2006)). The motion must specifically advise the circuit court as to how the evidence was deficient. Id., 270 S.W.3d at 838. The reason underlying this requirement that specific grounds be stated and that the absent proof be pinpointed is that it allows the circuit court the option of either granting the motion or, if justice requires, allowing the State to reopen its case to supply the missing proof. Id., 270 S.W.3d at 838-39. We will not address the merits of an appellant’s insufficiency argument where the directed-verdict motion is not specific. Id., 270 S.W.3d at 839.

In the present case, McKinney made the following motions for directed verdict: I don’t believe that there was sufficient evidence that demonstrated or proved that [McKinney] in any way possessed specifically a firearm in this case, therefore the jury could not declare that he would be guilty of simultaneous possession of drugs and firearms.

....

I don’t believe that the State demonstrated or showed or met their burden in regard to the gun and that [McKinney] in any way possessed a firearm. Therefore, a jury could not conclude that he could be guilty of possession of a firearm.

McKinney’s motions for directed verdict merely stated that he did not possess the firearm. He did not argue below that the State failed to prove that he constructively possessed the firearm. Under these circumstances, we hold that McKinney’s motion

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was too general to preserve the constructive-possession argument he has raised on appeal. Conley v. State, 2011 Ark.App. 597, at 6-7, 385 S.W.3d 875, 878-79 (holding that the appellant failed to preserve his sufficiency argument where he argued in his motions for directed verdict that the State failed to prove possession of drugs and drug paraphernalia but argued on appeal that the State failed to establish constructive possession). Accordingly, we affirm on the issue of the sufficiency of the evidence supporting McKinney’s convictions for simultaneous possession of drugs and a firearm and possession of a firearm by certain persons.

McKinney also argues on appeal that the circuit court abused its discretion in ordering consecutive sentences. After the jury returned its guilty verdicts and sentencing recommendation, the State requested that the circuit court sentence McKinney to twenty-four years of suspended imposition of sentence (SIS) for the possession-of-methamphetamine and delivery-of-methamphetamine convictions and to order that the sentences for the remaining convictions (possession of a firearm by certain persons, maintaining a drug premises, simultaneous possession of drugs and a firearm, and the proximity enhancement), which totaled 130 years, be run consecutively. McKinney’s counsel did not respond or object. Thereafter, the circuit court found that it lacked authority to order SIS where the defendant had been determined to be a habitual offender, and it concluded that it would follow the jury’s sentencing recommendations. The court then stated that the jury had spent " quite a bit of time deliberating on this. Obviously, they had different thoughts about different sentences," and ordered that the sentences run consecutively for a total of 154 years. McKinney did not object.

In order to preserve an argument for appeal there must be an objection in the circuit court that is sufficient to apprise that court of the particular error alleged. Brown v. State, 326 Ark. 56, 60, 931 S.W.2d 80, 83 (1996). Further, we will not address arguments raised for the first time on appeal. Id., 931 S.W.2d at 83. Our...