Jacobs v. State

• Decision Date: 05 July 1994
• Docket Number: No. CR,CR
• Citation: 878 S.W.2d 734,317 Ark. 454
• Parties: Bryson JACOBS, Appellant, v. STATE of Arkansas, Appellee. 93-1137.
• Court: Arkansas Supreme Court

Page 734

878 S.W.2d 734

317 Ark. 454

Bryson JACOBS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 93-1137.

Supreme Court of Arkansas.

July 5, 1994.

Larry W. Horton, Malvern, for appellant.

Brad Newman, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

Bryson Jacobs appeals from convictions of two counts of delivery of a controlled substance, two counts of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and being a felon in possession of a firearm. He was sentenced to 116 years imprisonment and a $120,000 fine. Mr. Jacobs contends the Trial Court erred by (1) denying his motion for a directed verdict, (2) refusing to admit into evidence the deposition of co-defendant, Sharlene Wilson, which contained exculpatory statements, (3) refusing to suppress evidence obtained pursuant to a search warrant, (4) admitting the testimony of a witness not listed by the prosecution to testify, (5) instructing the jury on accomplice liability, and (6) denying motions for severance of the charges for trial and for a continuance. There was no reversible error, and the judgment is affirmed.

From the evidence presented, the jury could have concluded that Sharlene Wilson, who was Bryson Jacobs' girlfriend, sold drugs from her home in Malvern. In November 1992 the Seventh Judicial District Drug Task force began investigating Ms. Wilson and, through a confidential informant, purchased drugs from her on three occasions.

The first purchase took place November 22, 1993, when Joann Potts, the confidential informant, went to Ms. Wilson's home to purchase marijuana. Ms. Wilson and Mr. Jacobs were present during the transaction. Ms. Wilson weighed the marijuana and sold it to Ms. Potts for $70. Mr. Jacobs made change for Ms. Potts' $100 bill.

The next transaction occurred the following evening when Ms. Potts returned to Ms. Wilson's home to purchase methamphetamine. Mr. Jacobs again was present during the transaction and told Ms. Potts the drugs were really potent "good stuff" and not to use too much.

The final transaction took place December 30, 1992, when Ms. Potts phoned Ms. Wilson's home to arrange another buy. Ms. Wilson was not at home, but Mr. Jacobs talked to Ms. Potts and told her there were drugs for sale. Ms. Potts called back and arranged a sale of marijuana with Ms. Wilson at a local convenience store parking lot.

Based on these transactions, the Drug Task Force obtained a warrant and searched Ms. Wilson's home on December 31, 1992. During the search they arrested her and Mr. Jacobs and seized various quantities of marijuana and methamphetamine as well as syringes, a smoking pipe, and scales. Firearms also were found, including a pistol which was within Mr. Jacobs' reach when the officers entered. Also several articles of men's clothing and toiletries were found in a bedroom.

Ms. Wilson and Mr. Jacobs were charged with two counts of delivery of a controlled substance for the November 22 and 23 transactions. In a separate information, based on the evidence obtained in the search, they were charged with two counts of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Mr. Jacobs was additionally charged with being a felon in possession of a firearm. These charges formed the bases of Mr. Jacobs' convictions for which he was tried separately from Ms. Wilson and from which he now appeals.

1. Directed verdict motion

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993). The question on review is whether there was substantial evidence to support the verdict. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). Substantial evidence is "evidence that is of sufficient certainty and precision to compel a conclusion one way or another, forcing or inducing the mind to pass beyond suspicion or conjecture." Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992). In determining whether substantial evidence exists, we review the evidence in a light most favorable to the appellee. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Mr. Jacobs contends there was insufficient evidence for the jury to return a conviction on any of the charges against him.

a. Delivery of drugs

The evidence recited above showed he played a role in the two illegal drug transactions with which he was charged. According to Ark.Code Ann. § 5-2-403(a),

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:

(1) Solicits, advises, encourages, or coerces the other person to commit it; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it;

* * * * * *

Given Mr. Jacobs presence and his willingness to make change and comment on the quality of the drugs being purchased it is apparent he was aiding or attempting to aid in the consummation of the sales. The evidence thus was sufficient to show he was an accomplice of Ms. Wilson.

b. Possession of drugs, paraphernalia

With respect to the charges of possession of a controlled substance with intent to deliver and drug paraphernalia, Mr. Jacobs contends there was no evidence presented at trial linking him to any of the items seized at Ms. Wilson's home.

Actual or physical possession is not required to prove guilt of possession of a controlled substance. Constructive possession is sufficient and can be implied when the controlled substance is in joint possession of the accused and another. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). Joint occupancy of a residence, though, is not sufficient by itself to establish joint possession. The State must show additional facts or circumstances indicating the accused had knowledge and control of the controlled substance. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991).

The evidence presented, when considered altogether, was sufficient for the jury to conclude Mr. Jacobs was in joint possession of the drugs and drug paraphernalia seized at Ms. Wilson's home. The evidence indicated that Mr. Jacobs was a regular fixture at Wilson's home. He was at the house each time Ms. Potts purchased drugs, as well as when the house was raided by the Drug Task Force. Drug Task Force officers further testified the truck Mr. Jacobs drove was consistently seen parked at Ms. Wilson's home during their investigation. Further, the testimony of Drug Task Force officials and Joann Potts concerning Mr. Jacobs' involvement with Ms. Wilson's drug trade sufficiently proved that Mr. Jacobs had knowledge of the items found in Ms. Wilson's home. The testimony that Mr. Jacobs had commented on the quality of the methamphetamine being sold and that he had, on one occasion, offered a marijuana cigarette to Ms. Potts sufficiently proved that he and Ms. Wilson had joint access and joint control of the contraband seized.

c. Possession of firearm

Mr. Jacobs' argument that there was insufficient evidence to prove that he was a felon in possession of a firearm is not preserved for appeal. The trial was bifurcated, so the evidence introduced with respect to this charge was presented after the jury returned guilty verdicts on the other charges.

Mr. Jacobs did not renew his motion for a directed verdict on the firearm charge at the close of the evidence. We have consistently stated a defendant must renew his motion for directed verdict at the close of the evidence presented against him. See Coleman v. State, supra.

2. Admissibility of deposition

Mr. Jacobs attempted to introduce into evidence a deposition given by Sharlene Wilson. This deposition was a sworn statement recorded by a court reporter at Mr. Jacobs' attorney's office. At the time the statement was taken, Ms. Wilson was not represented by an attorney, and no one from the prosecutor's office was present. Ms. Wilson stated that Mr. Jacobs was out of town when the first two drug transactions with Ms. Potts took place and that all the drugs seized belonged to her and not to Mr. Jacobs.

Ms. Wilson refused to testify at Mr. Jacobs' trial, invoking her Fifth Amendment rights. Despite Ms. Wilson's consequent "unavailability," the Trial Court refused to admit the deposition, thus rejecting Mr. Jacobs' argument that the deposition was admissible hearsay under either Ark.R.Evid. 804(b)(1) or 804(b)(3).

In reviewing a Trial Court's ruling on the admissibility of evidence, we will not reverse absent an abuse of discretion. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).

Arkansas Rule of Evidence 804(b) provides that certain items of evidence are not excluded by the hearsay rule. One such item is former testimony described as follows in subsection (1):

Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Rule 804(b)(3) makes a similar exception for a statement against interest. That subsection provides this definition:

Statement against interest. A statement which at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the...