Layton v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: John B. Robbins
• Citation: Layton v. State, 2009 Ark. App. 96, 302 S.W.3d 610 (Ark. App. 2009)
• Decision Date: 18 February 2009
• Docket Number: No. CA CR 07-1292.,CA CR 07-1292.
• Parties: Michael Lee LAYTON, Appellant, v. STATE of Arkansas, Appellee.

302 S.W.3d 610

2009 Ark. App. 96

Michael Lee LAYTON, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 07-1292.

Court of Appeals of Arkansas.

February 18, 2009.

Scott A. Strain, North Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., Little Rock, for appellee.

JOHN B. ROBBINS, Judge.

[1]

Appellant Michael Lee Layton was convicted in a jury trial of possession of cocaine with intent to deliver, simultaneous possession of drugs and firearms, and being a felon in possession of a firearm. Mr. Layton was sentenced to concurrent prison terms of forty, fifty, and forty years. Appellant's counsel originally filed a motion to withdraw on the grounds that an appeal would be without merit pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Ark. Sup. Ct. R. 4-3(j)(1). However, in an unpublished opinion we held that an appeal of Mr. Layton's convictions would not be wholly frivolous, and we ordered rebriefing in an adversary form. See Layton v. State, CACR07-1292 (Ark.App. July 25, 2008).

[2]

Mr. Layton now brings this merit appeal, raising two points for reversal. First, he contends that the trial court erred in failing to grant his motion to dismiss for lack of a speedy trial. Next, he argues that there was insufficient evidence to support his convictions. We affirm.

Columbia County Sheriff Calvin Knighton testified for the State. Sheriff Knighton testified that he was driving on Highway 371 South toward Louisiana when a car passed him at a high rate of speed. Sheriff Knighton called Deputy Coby Schmittou, who subsequently clocked the car at eighty-two m.p.h. and conducted a traffic stop. The driver of the car was Mr. Layton, and his wife, Josette Layton, was in the front passenger's seat. The car was registered in the names of both appellant and his wife.

After Deputy Schmittou made the stop, Sheriff Knighton arrived at the scene and gave assistance. Sheriff Knighton heard Mr. Layton tell Deputy Schmittou that he had a weapon in the car, and a loaded gun was found in plain view between the driver's seat and the console. At that time Mr. Layton was removed from the vehicle and placed under arrest. Sheriff Knighton found a backpack in the rear of the vehicle behind the passenger's seat, and upon being questioned Mrs. Layton advised that it was her bag. Inside the backpack the police found a Crown Royal bag containing 13.6 grams of crack cocaine and 2.6 grams of marijuana. Also in the backpack was about $400 in cash and several of Mrs. Layton's personal belongings, some of which contained her name. Sheriff Knighton acknowledged that no fingerprint analysis was conducted, and he did not recall finding any

[3]

item in the backpack with Mr. Layton's name on it. Deputy Schmittou also testified for the State, and he confirmed that Mr. Layton claimed ownership of the gun.

Appellant's wife testified against him at the trial. Mrs. Layton testified that they had been married for four years and lived in Louisiana near the Arkansas border. She stated that throughout their marriage they had both been selling crack cocaine out of their home. Mrs. Layton admitted joint ownership of the cocaine seized by the police in the present case, and previously entered a negotiated guilty plea to possession of cocaine with intent to deliver with the condition that she testify against her husband.

Mrs. Layton testified that on the day of their arrest they had driven to El Dorado and bought the cocaine from a man nicknamed Thug. She stated that Mr. Layton went in and purchased the cocaine from Thug at Thug's grandmother's trailer. Mr. Layton then gave the cocaine to Mrs. Layton and proceeded to drive toward home. According to Mrs. Layton, she put the cocaine in the Crown Royal bag, and then put that in the arm rest. She stated that she did not place the Crown Royal bag in her backpack, but indicated that Mr. Layton must have done that when they stopped at a gas station and she went inside to pay. Mrs. Layton stated that Mr. Layton knew all of their customers and did most of the selling. She had witnessed him selling cocaine numerous times.

In this appeal, we first address Mr. Layton's challenge to the sufficiency of the evidence to support his convictions. When a defendant challenges the sufficiency of the evidence, we consider only the evidence that supports the guilty verdict. Walley v. State,

[4]

353 Ark. 586, 112 S.W.3d 349 (2003). The test is whether there is substantial evidence to support the verdict. Id. Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id.

Mr. Layton argues on appeal that his convictions for possession of a controlled substance with intent to deliver and simultaneous possession of drugs and firearms must be reversed because there was no evidence to corroborate his accomplice's testimony that he was in joint possession of the cocaine or even knew of its presence in the vehicle. Mr. Layton correctly asserts that, pursuant to Ark.Code Ann. § 16-89-111(e)(1) (Repl.2005), a felony conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Id. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Tate v. State, 357 Ark. 369, 167 S.W.3d 655 (2004). Rather, it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime. Id. However, evidence that only raises a suspicion of guilt is insufficient. Id. The presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime are relevant facts in determining the connection of an accomplice with the crime. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996).

[5]

In the present case, Mr. Layton asserts that other than his wife's testimony, the State offered no proof that he possessed the cocaine. He notes that the cocaine was found in a backpack belonging to Mrs. Layton, which was located behind her seat in the car. Although appellant was driving the vehicle, he points out that it was registered in both of their names. In Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994), our supreme court held that joint occupancy of a vehicle, standing alone, is not sufficient to establish possession or joint possession, and that there must be some other factor linking the accused to the drugs. Mr. Layton submits that other than Mrs. Layton's testimony there were no factors linking him to the cocaine, and because of this lack of corroboration his directed verdict motions should have been granted with respect to the drug-related charges.

We hold that there was sufficient evidence to support Mr. Layton's drug convictions. The testimony of his wife that he bought the cocaine and that they were both involved in a drug-dealing operation was corroborated by other evidence that tended to connect Mr. Layton with possession of the drugs. In Mings v. State, supra, the supreme court held that among the factors to consider in a joint-possession case are whether the accused is the owner of the automobile or whether he exercises dominion or control over it. Here, Mr. Layton not only was a co-owner of the car but he was driving it when he was stopped by the police for speeding. There was also testimony that he had been stopped for speeding in the same vehicle two months earlier. Moreover, Mr. Layton admitted to the police that he was in possession of the loaded handgun that was in plain view and easily accessible to him at

[6]

the time of the stop. Our supreme court has recognized that firearms are considered a tool of the narcotics dealer's trade. See Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995); Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). Finally, it is undisputed that Mr. Layton was in close proximity to the crimes and was closely associated with his accomplice, to whom he had been married for four years.

In Tate v. State, supra, our supreme court made it clear that while the corroborating evidence must be stronger evidence than that which merely raises a suspicion of guilt, the corroborating evidence in a case such as this need not rise to the level of proof necessary to support a constructive possession conviction. While the corroborating evidence would not have alone been sufficient to support a conviction, we have concluded in the present case that there was sufficient corroborating evidence tending to connect Mr. Layton with the drug crimes. Therefore, we hold that the trial court did not err in denying Mr. Layton's motions for directed verdict.¹

[7]

Although technically not an issue pertaining to the sufficiency of the evidence, Mr. Layton also challenges his conviction for felon in possession of a firearm under this point on appeal. He notes that the jury found him guilty of the two drug charges, but was not asked to deliberate and consider whether he was guilty of being a felon in possession of a firearm. Instead, during the sentencing phase, the trial court advised the jury:

Ladies and gentlemen, this morning when we started, I told you that there were two charges pending against Mr. Layton. In fact, there were three charges pending against him. He was also charged with the criminal offense of being a felon in possession of a firearm. By finding him guilty this afternoon of simultaneous possession of drugs and a firearm, you have in effect, also found him guilty of being a felon in possession of a firearm. I tell you that because now you will be asked to render a sentence on all three of those charges.

Mr. Layton asserts that it was not the job of the trial court to...