Ramey v. State

• Decision Date: 30 June 1993
• Docket Number: No. CA,CA
• Parties: Elmer RAMEY, Jr., Appellant, v. STATE of Arkansas, Appellee. CR 92-478.
• Court: Arkansas Court of Appeals

Page 828

857 S.W.2d 828

42 Ark.App. 242

Elmer RAMEY, Jr., Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 92-478.

Court of Appeals of Arkansas,

Division II.

June 30, 1993.

Gene E. McKissic, Pine Bluff, for appellant.

Clementine Infante, Asst. Atty. Gen., Little Rock, for appellee.

ROBBINS, Judge.

Appellant Elmer Ramey was convicted by a jury of delivery of a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia, operating a drug premises, and conspiracy to deliver marijuana. Appellant was sentenced to nine years each on the delivery, possession with intent to deliver, and possession of drug paraphernalia convictions, and to six years each on the operating a drug premises and conspiracy to deliver convictions, with the sentences to run consecutively. The court suspended imposition of sentence on counts three and five, for a total sentence of 39 years imprisonment, with 15 years suspended.

Appellant raised three points on appeal: (1) the trial court erred in denying appellant's motion to suppress evidence seized pursuant to a nighttime search warrant; (2) the evidence was insufficient to sustain the convictions; and (3) the trial court erred in denying appellant's motion for mistrial. We find there was sufficient evidence to sustain appellant's convictions. However, we agree with appellant's contentions that the affidavit lacked probable cause to support a nighttime search, and that the evidence seized should have been suppressed. Accordingly, we affirm in part and reverse and remand in part.

Pursuant to Harris v. State, 284 Ark. 247, 681 S.W.2d 334, we first address appellant's challenge to the sufficiency of the evidence prior to consideration of any alleged trial error. In a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the appellee, and affirm the conviction if there is substantial evidence to support it. Hutcherson v. State, 34 Ark.App. 113, 806 S.W.2d 29 (1991). In making our review, we do not weigh the evidence favorable to the State against any conflicting evidence favorable to the accused. Bargery v. State, 37 Ark.App. 118, 825 S.W.2d 831 (1992). In determining whether there is substantial evidence to support the jury's verdict, it is permissible to consider only the testimony that tends to support the verdict of guilt. Franklin v. State, 311 Ark. 601, 845 S.W.2d 525 (1993). We may even consider evidence which may have been erroneously admitted. Burkett v. State, 40 Ark.App. 150, 842 S.W.2d 857 (1992).

The evidence viewed in the light most favorable to the State shows that the Camden police had received information about alleged drug dealing occurring around appellant's home at 203 Midland Street. In January of 1991, Officer Poole and Sergeant Vaughan conducted an undercover investigation in which the Ramey residence was telephoned and a marijuana purchase arranged. Jeff Wilkins, the informant, was instructed to go to a grocery store and call again. He was then instructed to go to a club near appellant's home. He was met at the club by Rod Ramey, who is appellant's son, and Tom Henderson. Henderson handed Wilkins three or four bags of marijuana contained in sandwich- type plastic bags, for which Wilkins gave Henderson $130. Henderson and Ramey were subsequently arrested and some of the marked buy money was found in the possession of each. Pursuant to a search warrant, appellant's home at 203 Midland was searched and plastic bags and two sets of scales were seized. After Henderson was arrested, he made a statement to police in which he said that he sold marijuana for appellant and that he and Rod obtained their marijuana from appellant. He also said that appellant obtained his marijuana from El Dorado, and that Rod would hide the marijuana somewhere in the woods. At trial Henderson denied having made these statements.

Officers continued to conduct surveillance activities around appellant's home for approximately two more months, during which time they observed a pattern of activity whereby individuals would make a call from a pay phone, proceed to Midland Street, where appellant's house was located, drive slowly by the Ramey residence, continue up the street, and come back and stop either in front of appellant's house or down the street from it at an intersection. Either Rod Ramey or Abraham Minor (who is appellant's nephew) would approach the car, then return to the front of the house. Although appellant was not seen during the surveillance, his work truck, car, or both were sometimes seen at the house during surveillance.

On March 14, 1991, officers observed someone drive his car slowly by the Ramey residence, then hit his brake lights. Rod Ramey and Abraham Minor were seen at the house, but appellant was not. The vehicle proceeded to the intersection past the house, where it was met by Abraham Minor, and an exchange took place. After the car left, officers stopped the vehicle, which was driven by Michael Hooker. Hooker gave the officer a bag of marijuana and said he had purchased it from Abraham Minor.

The officers obtained a search warrant, which was issued at approximately 9:30 p.m. and which provided that the search could be conducted between the hours of 8:00 p.m. and 6:00 a.m. because the objects to be seized were in danger of imminent removal. The search was conducted at approximately 10:30 p.m. Appellant was present at the time of the search, as were Rod Ramey and Abraham Minor.

When the police arrived, Lt. Harrison and Sgt. McCann saw appellant running to the carport. Lt. Harrison yelled for appellant to stop, but appellant continued into the house. As Lt. Harrison followed him in, appellant reached for the telephone. Appellant was handcuffed and arrested, along with Rod Ramey and Abraham Minor.

A bag of marijuana was found in the pocket of Abraham Minor, who was sitting on the front porch of appellant's house when the officers arrived. Minor's billfold and W-2 income tax return form were found inside the house. Appellant had over $3000 cash and some food stamps on his person. Also seized were a set of triple-beam scales, around five or six hundred plastic bags in various sizes, some rolling papers, and a .22 caliber rifle, which was found under the living room couch.

The three men were taken to the police station. While the officers continued to search the house, telephone calls began coming in from people who wanted to purchase drugs. Several people came to the residence to purchase drugs and were arrested and testified at appellant's trial. David Hathcoat testified that he had been to appellant's house to purchase marijuana two or three times within the past two months. David Atkinson testified that on March 14, 1991, he went to appellant's house for the purpose of purchasing drugs, and that he had been there about two times a week in the past for that purpose. He stated that the marijuana was always packaged in a "baggie." Chris Bates also testified that he had bought marijuana from Minor in the past by going to the vicinity of appellant's home, and that the drugs were packaged in a "baggie."

In a statement to the police, Thomas Henderson said that the police arrived too early the night of March 14; appellant was going to El Dorado to pick up marijuana about 30 minutes later. Roy Magby, a former co-worker of appellant, testified that he had purchased marijuana from appellant on several occasions. Specifically, he said he bought marijuana from appellant in January of 1991 by calling appellant on the telephone, then going to his house. Magby said that the marijuana was packaged in a gallon Ziplock bag and that he weighed it on the scales in appellant's kitchen.

Appellant contends that his conviction for conspiracy to deliver marijuana is not supported by substantial evidence. "Deliver" means the actual, constructive, or attempted transfer from one person to another in exchange for money or anything of value, whether or not there is an agency relationship. Ark.Code Ann. § 5-64-101 (Supp.1991). Arkansas Code Annotated § 5-3-401 (1987) provides that:

A person conspires to commit an offense if with the purpose of promoting or facilitating the commission of any criminal offense:

(1) He agrees with another person or persons:

(A) That one (1) or more of them will engage in conduct that constitutes that offense; or

(B) That he will aid in the planning or commission of that criminal offense; and

(2) He or another person with whom he conspires does any overt act in pursuance of the conspiracy.

In his statement to the police, Thomas Henderson said that Rod Ramey got his marijuana from appellant, and that appellant bought "quarters" of marijuana from El Dorado. Henderson also stated that appellant asked Henderson to sell marijuana for him and that appellant had other people selling for him. After appellant had been taken to the police station the night of the search, calls continued to come in to appellant's house from people wanting to purchase drugs. Several people came to the house for that purpose and were arrested. Two of them testified at trial that they had bought marijuana from someone at appellant's house on several occasions. We hold there was sufficient evidence to find that appellant engaged in a conspiracy to deliver marijuana.

Appellant was also charged with the offense of operating a drug premises by maintaining or keeping a premises or structure in violation of the Arkansas Controlled Substances Act by storing, keeping, and distributing illegal controlled substances in and from his residence. Appellant contends his conviction for operating a drug premises is not supported by substantial evidence.

Arkansas Code Annotated § 5-64-402(a)(3) (1987) provides that it is unlawful for any person to knowingly keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place, which is resorted...