Matlock v. State

• Decision Date: 04 February 2015
• Docket Number: No. CR–14–617,CR–14–617
• Citation: 2015 Ark. App. 65,454 S.W.3d 776
• Parties: Eric Matlock, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Court of Appeals

2015 Ark. App. 65

454 S.W.3d 776

Eric Matlock, Appellant

v.State of Arkansas, Appellee

No. CR–14–617

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered February 4, 2015

Morris Law Firm, P.A., by: Jimmy C. Morris, Jr., Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Ashley Priest, Ass't Att'y Gen., Little Rock, for appellee.

Opinion

WAYMOND M. BROWN, Judge

Appellant appeals from his conviction by jury trial of possession of paraphernalia with intent to deliver, a Class B felony; maintaining a drug premises, a Class C felony; and possession of a controlled substance-crack cocaine, a Class D felony. On appeal, appellant argues that the circuit court erred in (1) denying his motion for directed verdict on each of the three charges he was convicted of, and (2) running his sentences consecutively. We affirm.

Darrell Spells, then director of the Thirteenth Judicial District Drug Task Force in Dallas County, Arkansas, developed information that appellant was selling narcotics in Fordyce, Arkansas. Acting on this information, Officer Spells engaged an informant to make a controlled buy from appellant.¹ Officer Spells and the informant met on the night of November 26, 2012. Officer Spells had the informant empty her pockets to ensure she had no other money or drugs on her. No further search was completed. Officer Spells gave her sixty dollars to make the purchase and a cell-phone-appearing device to record audio and video.

At approximately 7:00 p.m., Officer Spells drove the informant near 616 East 10th Street where Officer Spells had information appellant lived. The informant exited Officer Spells's vehicle and walked in the direction of 616 East 10th Street. Officer Spells had no visual of the informant once she left the vehicle. She returned approximately ten minutes later with what appeared to be crack cocaine. Based on this evidence, Officer Spells obtained a search warrant for the residence located at 616 East 10th Street and for appellant. The same was executed on January 14, 2013. No one was in the home at the time of execution. Appellant surrendered himself to police on January 15, 2013.

During the search, Officer Spells seized two sets of digital scales, some Glad sandwich bags, two pieces of mail addressed to appellant at a neighboring address, and a piece of paper appearing to have a handwritten ledger on it. One of the scales had a white powdery substance on it that appeared to be crack cocaine.² Officer Spells scraped off the residue and put it in an envelope for testing. Testing of the substance received from the informant during the controlled buy and of the substance scraped off the scale revealed that the former was .5237 grams of cocaine and the latter was .0225 grams of cocaine.

On March 14, 2013, the State filed a three-count felony information charging appellant with delivery of fewer than two grams of cocaine, possession of drug paraphernalia for the purpose of manufacturing cocaine, and maintaining a drug premises. The State amended the information on October 18, 2013, to add habitual-offender charges to each of the three counts charged in the March 14, 2013 information. A second amended information was filed on February 5, 2014, adding a count of possession of fewer than two grams of cocaine.³

At the conclusion of the trial, the jury found appellant not guilty of the charge of delivery of fewer than two grams of cocaine. However, the jury found appellant guilty of possession of drug paraphernalia for the purpose of manufacturing cocaine, maintaining a drug premises, and possession of fewer than two grams of cocaine. The jury recommended a sentence of ten years' imprisonment for each offense, but did not make a recommendation on whether the sentences should be served concurrently or consecutively. The circuit court ordered that the sentences be served consecutively for a total of thirty years' imprisonment. A sentencing order reflecting the same was entered on February 28, 2014. This timely appeal followed.

I. Directed Verdict

A motion for directed verdict is a challenge to the sufficiency of the evidence.⁴ When reviewing the sufficiency of the evidence, this court views the evidence in the light most favorable to the guilty verdict, considers only that evidence supporting the verdict, and affirms if substantial evidence supports the verdict.⁵ Evidence is substantial when it is forceful enough to compel a conclusion and goes beyond mere speculation or conjecture.⁶ Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence.⁷ The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide.⁸

We have held that the credibility of witnesses is a matter for the jury's consideration.⁹ Where the testimony is conflicting, we do not pass upon the credibility of the witnesses and have no right to disregard the testimony of any witness after the jury has given it full credence, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon.¹⁰

A. Possession of Drug Paraphernalia with Purpose of Manufacturing

Appellant first argues that the circuit court erred in failing to direct a verdict in his favor on the charge of possession of drug paraphernalia for the purpose of manufacturing cocaine. Appellant specifically argues that because he did not live in the home from which the drug paraphernalia was seized, and the same was not seized from a place immediately and exclusively accessible and subject to his control, the State failed to prove that he actually or constructively possessed any of the items seized from the home, and the circuit court should have granted his motion for directed verdict.

Arkansas Code Annotated section 5–64–443(b) states that “[a] person who uses or possesses with the purpose to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance that is methamphetamine or cocaine upon conviction is guilty of a Class B felony.”¹¹ It is not necessary for the State to prove literal physical possession of drugs in order to prove possession, constructive possession—control of or right to control the contraband—is sufficient.¹² To prove constructive possession, the State must establish that appellant exercised care, control, and management over the drug paraphernalia.¹³ Constructive possession may be established by circumstantial evidence.¹⁴

Appellant's argument relies a great deal on his assertion that he did not live in the house. He testified that he did not live in the home at 616 East 10th Street in which the search warrant was executed, but that he lived in a nearby trailer with his grandmother at 622 East 10th Street. His girlfriend, Shambreka Broughton, testified that she lived in the 616 East 10th Street property alone with her four-year-old daughter by appellant. She agreed that appellant lived with his grandmother.

Appellant received his mail at his grandmother's address—622 East 10th Street. However, appellant testified that despite not living at the 616 East 10th Street property, “[w]hen he get [sic] around Shambreka's house, okay, my cousin call [sic] me and say [sic] you got [sic] mail” because he did not check the mail at his grandmother's house. He testified that his cousin would “bring me my mail around [Broughton's house.]” Broughton also testified that appellant's cousin would bring appellant's mail to him at her home. Furthermore, appellant parked at least one of his vehicles at the 616 East 10th Street property. And finally, the confidential informant testified that she had purchased drugs from appellant prior to the controlled buy and that appellant entered the 616 East 10th Street property to obtain the drugs she had purchased from appellant during the controlled buy. The fact-finder is free to believe all or part of a witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence.¹⁵ The fact-finder could have reasonably concluded that appellant lived at the 616 East 10th Street property with his girlfriend and not the 622 East 10th Street property as he asserted.

Where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband.¹⁶ In such cases, the State must prove two elements: (1) that the accused exercised care, control, or management over the contraband, and (2) that the accused knew the matter possessed was contraband.¹⁷ This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found.¹⁸

Broughton testified that she was “not aware” that appellant might have been selling drugs out of her home; did not know any of the names listed on the makeshift ledger found near the scales; did “not ever” buy fold-top bags, as she only bought Ziploc bags and did not know of any reason why the fold top bags were in her house; and never looked inside the drug-paraphernalia-containing cabinets. She also testified that she lived alone with her daughter in the home. Appellant then testified that “I know without a doubt in my mind [the drug paraphernalia] ain't [Broughton's] and I know they ain't mine.” Otherwise, he testified that he did not know who had been there. Additionally, where Broughton knew none of the names on the ledger, although he denied knowing all of the names, appellant admitted knowing at least some of the names on the ledger. And again, the confidential informant testified that appellant had gone into Broughton's house to obtain the drugs she purchased from him in the controlled buy.

As...