Mings v. State
| Decision Date | 10 October 1994 |
| Docket Number | No. CR,CR |
| Citation | 884 S.W.2d 596,318 Ark. 201 |
| Parties | Larry MINGS, Charles Douglas Grabow, and Daisy G. Riley, a/k/a Stacey Smith, Appellants, v. STATE of Arkansas, Appellee. 94-377. |
| Court | Arkansas Supreme Court |
John W. Settle, Fort Smith, for appellants.
J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.
Larry Mings, Charles Grabow, and Stacey Smith were traveling on Interstate 40 in a rented motor home. A state trooper stopped the motor home because it was weaving back and forth between the shoulder and the lane line. Smith, one of the lessees, consented to a search. Five compressed bricks of 90% pure cocaine with a retail value of four million dollars were found inside the vehicle. Mings, Grabow, and Smith were jointly charged with possession of cocaine with the intent to deliver. Each was convicted, and each now appeals. We affirm the convictions of all three.
Mings lives in Little Sioux, Iowa and, on May 3, 1993, drove his pickup to a Best Western motel in Houston, Texas. The motel is adjacent to the international airport. After checking into the motel he called one of his sons, Bill, who lives in the Houston area. The next day Bill came to the motel to see his father, and he brought Grabow with him. Mings had casually known Grabow, and the woman who lived with him, Smith, for about two years. On May 5, Bill received an emergency phone call which necessitated his leaving Houston. Mings had very little cash with him and borrowed $300.00 from Bill before he left. Mings testified that, soon after Bill left, Grabow and Smith came to his room and said they were going to rent a motor home and drive to Branson, Missouri to see some of the shows. They asked if he would like to go to with them and come back to Houston on May 10th. Mings said Smith borrowed $1500.00 from his son Bill to rent the motor home.
To the contrary, Smith testified that both the trip to Branson and renting the motor home were Mings's idea and that she rented the motor home only at Mings's request. She testified that Mings fronted $1500.00 in cash for the rental of the motor home. She further testified that Mings was not coming back to Houston with Grabow and her, but, instead, was going to meet his son and go somewhere else.
Veronica Villatoro, who worked at the rental agency that rented the motor home, testified that Smith phoned her three or four times on May 4th about renting a motor home. A person named Oliver had returned a motor home to the agency on the 3rd, and it seemed to be the style that Smith wanted. After Oliver returned the motor home it was cleaned inside and outside and nothing unusual was seen. Ms. Villatoro personally made a brief inspection and did not see anything unusual inside it. The motor home remained on the agency's enclosed lot until later taken by Smith. On May 4, Villatoro told Smith the agency now had available the style of motor home she wanted. The next afternoon, May 5, Mings and Smith got into Mings's pickup truck and drove the short distance to the rental agency, which was also located near the airport, to rent the motor home. Mings testified that he took Smith to the agency because Grabow asked him to do so. Villatoro testified that Smith came into the rental office late in the afternoon of May 5, accompanied by Mings. Smith told Villatoro that her name was Daisy Riley, and she produced a Texas driver's license for a Daisy Riley. Smith signed the rental agreement with the name Daisy Riley and listed Daisy Riley's Texas driver's license number as hers. Mings also signed the rental agreement as a lessee. Villatoro testified that Smith had a small purse with her and took out enough cash to pay the rental fee and deposit. She paid a $799.15 rental fee, and a $500.00 cash deposit to cover any damages to the motor home. All totaled, this amounted to 85 cents less than $1,300.00 that she paid in cash. It was agreed that the motor home would be returned on May 10th. Mings drove the motor home and Smith drove Mings's pickup truck back to the airport motel where Mings had a room. Smith testified that she and Grabow had a residence in Houston and that she wanted to go there to get some clothes for the trip, but Mings rented a room for them in the motel and said that he would buy her some clothes on the way to Branson. The motor home was parked outside the motel that night. Mings testified that the motel had "security."
Smith testified that early the next morning, May 6, Mings left his motel room and was sitting in the motor home with the motor running before she and Grabow got in. Mings testified that he, Smith, and Grabow left the motel together and got into the motor home together. Mings testified that he drove the motor home from the motel to "about forty to seventy miles south" of where they were stopped. At that point Grabow began driving and continued to do so until they were stopped by an Arkansas state trooper. Mings was riding in the front passenger's seat when the motor home was stopped.
A state trooper, Karl Byrd, was one of six members of the Arkansas State Police that were assigned to the area as a part of a "saturation" program. Their assignment, after making legitimate traffic stops, was "to take the stops farther." "Instead of jumping out and writing a ticket, we talk to the people and try to see if there's any criminal activity going on." Trooper Byrd saw the motor home being driven in a weaving manner onto the shoulder of the Interstate and back to the lane line. He stopped the motor home and asked the driver to get out and stand near the rear of the vehicle. He asked about the erratic driving. Grabow, who was driving, told the trooper that he had very little experience driving a motor home and also that the wind was bothering him. The trooper observed that Grabow had a Bandito tattoo on his arm. The trooper asked to see Grabow's driver's license, got some information from it, and went back to his police car to ask for information about Grabow by police radio. Grabow stood behind the motor home and in front of the police car. The trooper testified that Grabow was extremely nervous and evidenced a "noticeable shaking." The radio report came back informing the trooper that Grabow had several felony convictions and was, at that time, on parole for murder. The trooper went back to the motor home and briefly asked some questions of Smith, who was in the back of the motor home with a child of Grabow's. She said the motor home was rented to her. The trooper handed Grabow a warning ticket and asked if there was contraband in the motor home. Grabow replied there was not. The trooper asked if he could search the motor home, and Grabow replied that he would have to ask Smith because she had rented the motor home.
The trooper asked Smith if she would consent to a search of the motor home. She got out of the motor home, and the trooper explained to her that he could not search the motor home unless she consented. He also explained that she had the right to refuse to consent to the search. She consented and, as Daisy Riley, signed a consent to search form. She then stood with Grabow in the area between the back of the motor home and the police car. Mings also got out of the motor home.
Another state policeman, Sergeant John Scarberough, was nearby and was contacted by Byrd by radio. Scarberough quickly arrived and joined Trooper Byrd in the search. Almost immediately, Sergeant Scarberough found 11.17 pounds of cocaine hidden under a drawer which was below a closet inside the motor home. The cocaine was divided into five bricks with each of the bricks being separately wrapped in a thin plastic wrapping. Trooper Byrd informed them they were under arrest. Smith did not reveal her true identity and, as a result, was charged as Daisy Riley, the name in which she had rented the motor home and the name appearing on her driver's license. She did not disclose her real name in any of the preliminary proceedings. It was only when she testified in the circuit court trial that she gave her real name, Stacey Smith, and stated that the Daisy Riley driver's license and identification were false. As a result, she was charged as Daisy Riley, and the State did not check her background before she was cross-examined. That is also the reason this appeal was lodged with her name as Daisy Riley.
At the time they were arrested Mings had $1,116.50 in cash. The small amount of clothes he had with him were nearly all new, and some still had tags on them. Smith and Grabow had no clothes other than those they wore. Smith testified that personal finances at the time were "tough" for her and Grabow, as neither of them had a job.
Each of the appellants argues that the foregoing evidence was insufficient to sustain his or her conviction for possession of cocaine with intent to deliver, and that the trial court erred in refusing to grant his or her motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994). Evidence is substantial if it is of sufficient force and character to compel a conclusion one way or the other beyond suspicion or conjecture. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). On appeal, this court need only look at that evidence most favorable to appellee and consider only that testimony which supports the verdict. Brown, 315 Ark. at 471, 869 S.W.2d at 12.
It is not necessary for the State to prove literal physical possession of drugs in order to prove possession. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Possession of drugs can be proved by constructive possession. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993)....
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