Hicks v. State

• Decision Date: 17 March 1997
• Docket Number: No. CR,CR
• Citation: 327 Ark. 652,941 S.W.2d 387
• Parties: Randolph George HICKS, Appellant, v. STATE of Arkansas, Appellee. 96-482.
• Court: Arkansas Supreme Court

Page 387

941 S.W.2d 387

327 Ark. 652

Randolph George HICKS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-482.

Supreme Court of Arkansas.

March 17, 1997.

Edward Witt Chandler, Wayne Emmons, Memphis, for Appellant.

Winston Bryant, Attorney General, Kent G. Holt, Assistant Attorney General, Little Rock, for Appellee.

THORNTON, Justice.

Appellant Randolph G. Hicks was convicted of one count of delivery of a controlled substance to Mark Lamm, a second count of delivery of a controlled substance to Rodney Silvers, one count of possession of a controlled substance with intent to deliver, and one count of possession of drug paraphernalia. He was sentenced to five years and fined $10,000 on the paraphernalia charge and sentenced to a term of thirty years on each of the other charges. The court ordered that the sentences run consecutively for a total of ninety-five years. Appellant appeals each of the convictions, asserting eleven grounds for reversal. We find one of those grounds to have merit with respect to his conviction for possession of drug paraphernalia; consequently, we reverse and remand that conviction. We find no error with respect to the other charges, and we affirm those convictions.

SUFFICIENCY OF THE EVIDENCE

We first address the sufficiency of the evidence to sustain the convictions. Our review of this question is required before we consider other claims of error. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994).

On May 10, 1995, Lieutenant Lyle Scott, an officer in the Criminal Investigation Division of the Mountain Home Police Department was called to investigate circumstances where a small child was locked out of an apartment where her mother and Mark Lamm lived. Officer Scott testified that upon returning the child to the apartment, police officers found controlled substances in the kitchen and in the master bedroom. Officer Scott testified that Mark Lamm admitted possession of the methamphetamine, and stated that he had obtained it from appellant on that same day and that Rodney Silvers had also obtained drugs from appellant that day.

At trial, Lamm testified that he had given appellant $2,200.00 a week earlier for appellant's use in going to California and purchasing two ounces of methamphetamine for return to Arkansas and delivery to him. He testified that when he went to appellant's mobile home on May 10 to pick up the drugs, he saw Silvers leaving the mobile home with a coat draped over his arm. Lamm testified that appellant told him that Silvers had gotten four ounces of methamphetamine from him. Lamm stated that he watched appellant weigh the drugs on a triple-beam scale and that when he left Hicks's mobile home, appellant still had a quantity of methamphetamine in his possession.

Based upon a substantially similar account to Officer Scott on the evening of May 10, a search warrant was obtained for both appellant's and Silvers's residences, and legal searches were made on May 11. Officer Scott testified that a search of appellant's home revealed four eight-balls of suspected methamphetamine in the kitchen, nine suspected Valium tablets in appellant's pants pockets, approximately one fourth gram of suspected methamphetamine on a glass pane, residue on razor blades and on a straw, as well as a spoon with residue, a wooden pipe, and a straw in a bedroom that was then occupied by Debra Schatz. Officer Scott also testified that a jar containing Valium tablets and some papers were found in the bedroom of Charles Lee, who also resided in the appellant's mobile home. Additional exhibits introduced at trial included airline tickets to and from California, credit card receipts for a hotel room in Lawndale, California, and a Western Union receipt, which were all found in the master bedroom then occupied by Ms. Schatz.

Ms. Schatz testified that she picked up Hicks at a residence in California and saw drugs divided, a portion of which appellant put in a leather zip-up bag that he took with him. She testified that she knew he was doing a drug transaction because he had done it before and that Hicks carried the same leather bag on the return trip to Mountain Home.

In addition to the approximately two ounces of methamphetamine picked up at Lamm's apartment on the night of May 10, additional controlled substances were found when the search of Rodney Silvers's residence was conducted on May 11. Mrs. Silvers testified that she had found methamphetamine under the vanity in the master bathroom of the Silverses' home, and tried to flush it down the toilet as the police began the search of her home. She further testified that on the previous day she heard a telephone message from appellant informing her husband that he was back, and she testified that her husband went to see appellant that evening. Appellant admitted that Silvers came by his house but insisted that it was later than the 5:30 time suggested by Lamm. Officer Tommy Steen testified that he conducted the search of the Silverses' home and found about 5.6 grams of methamphetamine and two ounces of marijuana as well as a triple-beam scale, a straw, and a razor blade.

In determining whether sufficient evidence was presented to sustain appellant's convictions on the count of delivering a controlled substance to Silvers; on the count of delivering a controlled substance to Lamm; and on the count of possession of a controlled substance with intent to deliver, as well as the count of possession of drug paraphernalia, we view the evidence in the light most favorable to the State and affirm where there is substantial evidence to support the verdict. Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991). This review necessarily includes evidence both properly and improperly admitted. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). If evidence is of enough force to compel a conclusion one way or the other, and goes beyond suspicion or conjecture, it is considered substantial. Bennett v. State, 307 Ark. at 402, 821 S.W.2d at 14. Our standard of review requires us to consider only the testimony that supports the verdict of guilt. Id. (citing Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988)).

We find there is an abundance of substantial evidence to support this jury verdict. The job of the jury is to judge the credibility of witnesses and they may chose to believe, as they did here, the State's case. Jones v. State, 297 Ark. 499, 763 S.W.2d 655 (1989). "It is the jury's province to judge the credibility of witnesses, and we will not disturb their judgment." Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988).

DRUG PARAPHERNALIA CHARGE

Although the evidence, including evidence erroneously admitted, Harris, supra, is sufficient to support the conviction for possession of drug paraphernalia, the trial court committed error by allowing into evidence certain items designated as drug paraphernalia that were not shown to be in appellant's possession. Appellant's seventh assignment of error that is the trial court abused its discretion in admitting a triple-beam scale, which was seized from the Silverses' residence, and a jar of Valium tablets found in Charles Lee's bedroom. Appellant contends that this evidence was irrelevant and that its probative value was substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 401, 402, and 403.

His point is well taken. We have not been referred to any authority that a jar of Valium tablets should be considered as drug paraphernalia, and our review of Ark.Code Ann. § 5-64-101 does not include this as an item to be considered as such. Triple-beam scales, on the other hand, are included within the definition of "drug paraphernalia" in Ark.Code Ann. § 5-64-101(v)(5) as follows: "Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances." See Brown v. State, 55 Ark.App. 107, 932 S.W.2d 777 (1996).

Although scales are paraphernalia, no connection was established between appellant and the triple-beam balance scale confiscated from the Silverses' home. Similarly, no connection was established with the Valium tablets seized from Charles Lee's bedroom. When a residence is shared and joint control is established, proof of knowledge of the contraband is required under our cases. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993). No such knowledge was established in this case. Appellant's argument has merit because any connection linking him to these items was tenuous at best, and would not support a conviction for constructive possession of these items. The scale was seized from the Silverses' residence, and there is no evidence by which a jury could infer that appellant had control, exclusive access, or dominion over this place. Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). Therefore, any conclusion connecting appellant to the scales could only be reached by speculation and conjecture and their admission into evidence was prejudicial to the charge of possession of drug paraphernalia.

We have concluded that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice to the jury's consideration of the charge of possession of drug paraphernalia, and the trial court abused its discretion in allowing the admission of the evidence over appellant's timely objection. Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984). We reverse the conviction on the charge of possession of drug paraphernalia and remand for a new trial or other disposition of that charge.

HARMLESS ERROR

While the erroneous admission of drug paraphernalia requires reversal of the conviction on the charge of possession of drug paraphernalia, evidence of drug paraphernalia is not essential to convictions on charges of possession or delivery of a drug. The admission of the scale and the Valium tablets as "paraphernalia" was harmless error with respect to the other charges. There was an abundance of evidence to...