Johnson v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: KENNETH S. HIXSON, Judge.
• Citation: Johnson v. State, 2014 Ark. App. 567, 444 S.W.3d 880 (Ark. App. 2014)
• Decision Date: 22 October 2014
• Docket Number: No. CR–14–64.,CR–14–64.
• Parties: John Ellis JOHNSON, Appellant v. STATE of Arkansas, Appellee.

2014 Ark. App. 567

444 S.W.3d 880

John Ellis JOHNSON, Appellant

v.STATE of Arkansas, Appellee.

No. CR–14–64.

Court of Appeals of Arkansas.

Oct. 22, 2014.

Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., Little Rock, AR, for appellant.

Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., and Lindsay Bridges, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under supervision of Darnisa Evans Johnson, Deputy Att'y Gen., for appellee.

Opinion

KENNETH S. HIXSON, Judge.

After a hearing on a motion to suppress and a bench trial in Pulaski County Circuit Court, appellant John Ellis Johnson was convicted of possession of a firearm by certain persons, theft by receiving, and fleeing. Johnson was sentenced to concurrent terms totaling six years of imprisonment. On appeal, appellant argues (1) that the firearm-related convictions were not supported by sufficient evidence that he was in possession of either firearm, and (2) that the trial court clearly erred in denying his motion to suppress because he was impermissibly detained after the legitimate reason for the traffic stop had concluded. We affirm.

Appellant's convictions in this case arose from a traffic stop at approximately 9:00 p.m. on May 9, 2013, on South University Avenue in Little Rock. Two police officers were on patrol; the driver's side window was down on the patrol car. Officer Derrick Hilton, who was driving, smelled a strong odor of marijuana emanating from a white Chevrolet Caprice in front of the patrol car. Appellant was the sole occupant and driver of the Caprice. Officer Hilton stated that the Caprice's windows were “slightly down” on both the driver and passenger side. The police initiated a vehicle registration check as they followed, and although the car was white, the registration showed it to be registered to appellant as a blue car. The police then initiated a traffic stop, and the Caprice pulled into a nearby Exxon station. As the patrol car pulled into the Exxon lot, Officer Hilton “smelled a very strong odor of air freshener coming from the vehicle,” and the smell continued as they approached to speak with appellant. When asked about the smell of marijuana, appellant denied smoking or possessing any, but he “continued to spray air freshener.”

Appellant was asked to exit the vehicle; he complied. The officers began to explain that they smelled marijuana coming from his car. Hilton said that he could smell marijuana on appellant's clothing. Hilton's companion on patrol, Officer Seth Thomas, entered the Caprice, and at that time, appellant “took off running.” Two more officers arrived to assist. Officers McKenzie and Baker were in another patrol car. As they arrived, appellant fled on foot. Officer Baker chased and eventually apprehended appellant. In the immediate area where appellant was arrested for fleeing, Hilton found a .22 caliber Freedom Arms firearm. This was the basis for the felon-in-possession-of-a-firearm charge, when it was later learned that appellant was a felon.

Officer Seth Thomas confirmed the course of events as related by Officer Hilton, except that Thomas could confirm that only one of the Caprice windows was down, not both. He described the Caprice's passenger window as “down a crack.” Officer Thomas confirmed that he, too, could smell marijuana coming from the Caprice, even before they initiated a traffic stop. Thomas observed appellant spraying air freshener before and during the initial traffic stop. Thomas testified that after appellant fled, he stayed to search the Caprice, finding a loaded .38 caliber Smith & Wesson revolver under the driver's seat, which turned out to be stolen from Veronica Beasley. This was the basis for the theft-by-receiving charge.

Regarding whether there was any physical evidence of marijuana in the car, Thomas testified that

[t]here were ashes, what we call shake, like little small pieces of green vegetable matter in the floorboard like a joint had been crushed out, but not enough to be able to collect. This was found in the driver's floor.

Officer Kenneth Jamal Baker testified that when he arrived on the scene, he also smelled marijuana coming from the Caprice. Officer Baker chased appellant on foot. He observed appellant run between a house and a fence line near 53rd Street, pull an object out of his right cargo-pants pocket, and toss it to the ground. Officer Baker could not identify what the object was because it was dark, but he said that after appellant disposed of the object, appellant lay down on the ground. Officer Baker told Officer Hilton where to look for the object, and Hilton retrieved the .22 caliber weapon.

Appellant argues on appeal that the evidence here, viewed most favorably to the State, was insufficient to establish beyond a reasonable doubt that he was in possession of either of the firearms. Although listed as appellant's second point on appeal, we must first address the sufficiency of the evidence prior to any other alleged trial-court error. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). In a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State and consider only the evidence that supports the convictions. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). Evidence is sufficient if it is of such character and force that it, with reasonable certainty, compels a conclusion one way or the other without resort to speculation or conjecture. Id. On appeal, we view all the evidence that supports the conviction, including evidence that may have been erroneously admitted. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993) ; Graham v. State, 2012 Ark. App. 90, 389 S.W.3d 33.

Appellant does not contest that he was a felon, nor does he contest that the State proved that the Smith & Wesson firearm found in the car was stolen. Appellant's argument is that the State failed to prove beyond a reasonable doubt that he was in possession of either firearm because neither was found in his actual possession. He adds that the evidence concerning those firearms should have been suppressed so that the evidence on that issue should not be contemplated in our sufficiency review, but this ignores our standard of review. See Scroggins, supra. We hold that there is sufficient evidence that appellant was in possession of these firearms as defined in...