Harper v. State

• Decision Date: 09 April 1986
• Docket Number: No. CA,CA
• Citation: 707 S.W.2d 332,17 Ark.App. 237
• Parties: David Lynn HARPER, Appellant, v. STATE of Arkansas, Appellee. CR 85-189.
• Court: Arkansas Court of Appeals

Page 332

707 S.W.2d 332

17 Ark.App. 237

David Lynn HARPER, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 85-189.

Court of Appeals of Arkansas,

En Banc.

April 9, 1986.

Robert E. Irwin, Russellville, for appellant.

Steve Clark, Atty. Gen. by Jerome T. Kearney, Asst. Atty. Gen., Little Rock, for appellee.

COOPER, Judge.

The appellant was convicted by a Boone County Circuit Court jury of possession of marijuana, second offense, and of being a felon in possession of a firearm. He was sentenced to serve six years on each charge in the Arkansas Department of Correction, with the sentences to run consecutively. On appeal, he alleges three points of error: (1) the court erred in admitting evidence relevant to a charge of possession of marijuana with intent to deliver, claiming that the evidence is irrelevant to his charge of simple possession; (2) the court erred in failing to direct a verdict of acquittal on the charge of being a felon in possession of a firearm; and (3) the court erred in failing to suppress the items seized in the search of the appellant's home, claiming that the affidavit provided an insufficient basis for the issuance of a search warrant. We find no merit in any of the appellant's contentions.

The appellant first contends that the court erred in admitting evidence of drug paraphernalia found during the search. He argues that this evidence is irrelevant to a charge of simple possession, second offense, as described by Ark.Stat.Ann. § 82-2617(c) (Supp.1985). (The appellant had originally been charged with possession with intent to deliver, under Ark.Stat.Ann. § 82-2617(a)(1)(iv) (Supp.1985), but because of some confusion as to whether that crime constituted a felony or misdemeanor, the information was amended to charge him with possession.) The evidence to which the appellant objected consisted of testimony, photographs, and a hypodermic syringe and needle. Lieutenant Riggs, of the Harrison Police Department, testified that:

[w]hen we entered the room, we discovered sheets spread over the floor in the room and mounds of vegetable material, there was quite a bit and it was apparent that it was Marijuana; three large grow lights; an electric heater; an electric box fan and other Marijuana paraphrenalia [sic].... We also seized a large set of scales ... We found the scales, as I recall in that [master] bedroom ... It's a wooden box we found in the ... master bedroom and ... contains a couple different items. One is a small pipe that Marijuana is smoked in and the same here [another pipe], also a syringe, a needle and its got a few other little items in it.

During Lt. Rigg's testimony, pictures of the lights, heater, fan, scales, and box (along with pictures of the marijuana) were introduced into evidence, as were the hypodermic syringe and needle. Mr. James, a chemist for the State Crime Laboratory, testified that the needle and syringe contained no controlled substances and that the wooden pipes found in the box tested positive for Tetrahydracannabol (THC--the active ingredient in marijuana), although he could find no identifiable traces of marijuana on them under the microscope.

While evidence of other crimes not charged in the indictment or information is generally inadmissible, evidence of other criminal activity is admissible under the res gestae exception to that general rule, in order that the facts and circumstances of the offense may be established. Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980). Therefore, the Supreme Court in Young found testimony by an undercover officer, that the defendant had told him during a sale of phencyclide (PCP) (the basis of the charge against the defendant) that he had already sold thirty hits of PCP that night, admissible as part of the res gestae of the transaction. In so doing, the Court noted that this evidence was not necessary to establish identity, plan, or intent of the defendant as to the offense charged, as that had been established by the officer's testimony. Likewise, in Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981), the Court held that evidence of a rape committed during an aggravated robbery was admissible in a trial concerned solely with the charge of aggravated robbery, even though the aggravated robbery could be proven without evidence of the rape. The Court stated that "all of the circumstances of a particular crime are part of the 'res gestae' of the crime [and] ... that all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction." 273 Ark. at 54, 615 S.W.2d 361 (emphasis in original).

"Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for acting. They are proper to be submitted to a jury, provided they can be established by competent means, sanctioned by law, and afford any fair presumption or inference as to the question in dispute.... Now circumstances and declarations which were contemporaneous with the main fact under consideration or so nearly related to it as to illustrate its character and the state of mind, sentiments or dispositions of the actors are parts of the res gestae."

Freeman v. State, 258 Ark. 496, 503, 527 S.W.2d 623, 627 (1975) (quoting Carr v. State, 43 Ark. 99 (1884)) (emphasis added). Accord, Turner v. State, 258 Ark. 425, 527 S.W.2d 580 (1975).

Here, all of the evidence objected to was found at the same time as the marijuana, most of it in close proximity thereto. The only exception is the syringe and needle, which were found in close proximity to pipes with traces of THC on them. This evidence, in addition to being part of the res gestae of the crime of possession, is also relevant in determining the motive of the appellant for possession of marijuana. ¹ "Even if motive is not an element of the crime charged, it may be proven." Lackey v. State, 288 Ark. 225, 229, 703 S.W.2d 858, 861 (1986). See also Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976).

Furthermore, there is overwhelming evidence in this case that the appellant possessed marijuana. The State proved the appellant's possession by the testimony of the officers and the introduction of the 2.4 pounds of marijuana seized from the appellant's home. Additionally, the appellant told the officers, after waiving his Miranda rights, that he owned the marijuana. Determining whether the probative value of the evidence is outweighed by its prejudicial impact is within the sound discretion of the trial court, and we will not reverse its decision absent a showing of an abuse of that discretion. Pruitt v. State, 8 Ark.App. 350, 652 S.W.2d 51 (1983). Because the evidence is part of the res gestae of the crime and is relevant in determining the motive of the appellant, and in light of the overwhelming evidence of possession in this case, we do not find any abuse of the trial court's discretion in admitting the evidence. ²

The appellant next claims that the court erred in failing to direct a verdict of acquittal on the charge of being a felon in possession of a firearm (Ark.Stat.Ann. § 41-3103 (Repl.1977)). A directed verdict is only proper if there is no issue of fact for the jury to decide; in reviewing this issue we look at the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Mooring v. State, 11 Ark.App. 119, 666 S.W.2d 720 (1984). The appellant states there is no evidence to show that he either owned or possessed the weapon. However, the evidence shows that the gun, a .357 Magnum, was found in the appellant's bedroom, directly under a window in which the police officers had observed the appellant looking out when they drove up. The officers saw no other person in that room. While one of the officers testified that he saw the appellant fumbling around with something that could have been a gun, it is undisputed that no one ever saw the gun in the appellant's hand or on his person. However, actual physical possession is not necessary for conviction, nor is ownership. While Ark.Stat.Ann. § 41-3103 does not define possession, Ark.Stat.Ann. § 41-115(15) (Repl.1977) states that " 'Possess' means to exercise actual dominion, control, or management over a tangible object." The Arkansas Supreme Court has construed this statute:

Dominion implies wide latitude and is defined as including even the "right to possession." ... Nor does the word "actual" reduce the usage to one of literal or physical possession ... Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), [held] that actual, physical possession is not required, but that "constructive possession of a controlled substance means knowledge of its presence and control over it." [Quoting] People v. Williams, 95 Cal.Rptr. 530, 485 P.2d 1146 (1971), ... [Cary ] states:

* * * Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively subject to his dominion and control, or to the joint dominion and control of the accused and another.

Glover v. State, 273 Ark. 376, 380, 619 S.W.2d 629, 631 (1981). The evidence is sufficient if it is shown, by either direct or circumstantial evidence, that the appellant had the right to exercise control over the object. Cary, 259 Ark. at 518. Where possession is shown by joint occupancy only, an additional link between the accused and the object must be shown. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). That additional link is provided here by the appellant's appearance in the window, below which the gun was found, just minutes before the search took place,...