Wells v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: PHILLIP T. WHITEAKER, Judge
• Citation: Wells v. State, 518 S.W.3d 106 (Ark. App. 2017)
• Decision Date: 15 March 2017
• Docket Number: No. CR–16–298,CR–16–298
• Parties: Willie WELLS, Appellant v. STATE of Arkansas, Appellee

518 S.W.3d 106

Willie WELLS, Appellant

v.STATE of Arkansas, Appellee

No. CR–16–298

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered March 15, 2017

Dusti Standridge, for appellant.

Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.

PHILLIP T. WHITEAKER, Judge

Appellant Willie Wells was charged with one count of possession of less than two grams of cocaine and one count of possession of drug paraphernalia. Prior to trial, Wells filed motions to suppress both physical evidence seized following his arrest and statements he made to the arresting officer. The circuit court denied both motions, and the matter proceeded to a jury trial. A Crittenden County jury convicted Wells of possession of cocaine but acquitted him of possession of drug paraphernalia. The jury sentenced Wells, as a habitual offender, to nine years in the Arkansas Department of Correction; it also imposed a $2,500 fine. Wells filed a timely notice of appeal and now challenges the sufficiency of the evidence supporting his convictions, the circuit court's denial of his motions to suppress, and its rejection of his request for an alternative sentencing instruction. We affirm.

I. Sufficiency of the Evidence

We first consider Wells's challenge to the sufficiency of the evidence supporting his conviction for possession of less than two grams of cocaine.¹ Our test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Jones v. State , 357 Ark. 545, 182 S.W.3d 485 (2004). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Haynes v. State , 346 Ark. 388, 58 S.W.3d 336 (2001). On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Williams v. State , 346 Ark. 304, 57 S.W.3d 706 (2001).

Wells argues that the State failed to prove that he possessed a usable amount of cocaine.² Wells was arrested for shoplifting by Patrolman Brandon Clark of the West Memphis Police Department. During a search of Wells's person incident to the arrest, Clark discovered a folded piece of paper containing a white substance in Wells's pocket.

At trial, the jury heard evidence concerning the white substance found in Wells's pocket. Clark testified that when he weighed the white substance on a digital scale at the police station, it weighed .01 grams. He could not say whether his scale was a certified scale, stating that it was "just for estimated weight value for when it gets sent off to the crime lab." He then bagged the evidence in a plastic envelope and had it sent to the crime lab.

Nick Dawson, a forensic drug chemist at the Arkansas State Crime Lab, testified that he received a piece of folded paper containing a white granular substance. His analysis of the substance was that it was .0577 grams of cocaine. He also testified as to the accuracy of his scale, saying that he would have calibrated the scale against a known 100–gram weight for accuracy the morning he weighed the granular substance. Dawson also noted that under his lab's guidelines, anything under .01 grams would be considered residue, but anything over that was a usable amount.

On this evidence, Wells was convicted of violating Arkansas Code Annotated section 5–64–419(a) & (b)(1)(A) (Supp. 2015), which provides that it is unlawful for a person to possess a controlled substance and that any person who possesses less than two grams (2g) of cocaine is guilty of a Class D felony. Wells points to the discrepancy between the weight observed by Clark—.01 grams—and the .0577 grams measured by Dawson, and he asserts that the State failed to prove that he possessed a usable amount of cocaine. His argument is not persuasive.

First, we note that there is no provision in our Controlled Substances Act mandating that one must possess a "usable amount" of a controlled substance to support a conviction for possession. See Jones, supra. In Harbison v. State , 302 Ark. 315, 790 S.W.2d 146 (1990), however, the supreme court adopted the usable-amount criteria. The Harbison court explained:

The intent of the legislation prohibiting possession of a controlled substance is to prevent use of and trafficking in those substances. Possession of a trace amount or residue which cannot be used and which the accused may not even know is on his person or within his control contributes to neither evil.

302 Ark. at 322, 790 S.W.2d at 151. Based on this usable-amount criteria, we have reversed a conviction for possession of methamphetamine because the trace amount of residue stuck to the inside of a plastic bag could not be weighed and thus did not constitute a "usable amount." Porter v. State , 99 Ark. App. 137, 139, 257 S.W.3d 919, 920 (2007). We have also affirmed a conviction for possession of cocaine where both a narcotics officer and a chemist with the state crime lab testified that, in their opinion, .01 grams of crack cocaine was a "usable amount."

Terrell v. State , 35 Ark. App. 185, 186, 818 S.W.2d 579, 580 (1991). Here, at a minimum, Wells possessed .01 grams of cocaine, a usable amount. Id.

Second, Wells's position is essentially a challenge to purported conflicts in the evidence or inconsistencies in the testimony. We have long held that any conflicts in the evidence or inconsistencies in the testimony are for the jury to resolve. See Davis v. State , 2016 Ark. App. 274, 493 S.W.3d 339. Given Clark's statement that his scale was used to "estimate" the weight and Dawson's description of how precisely his scales were calibrated, it was well within the jury's province to credit Dawson's testimony over Clark's, and according to Dawson's testimony, the cocaine found in Wells's pocket weighed .0577 grams.³ We therefore hold that there was sufficient evidence that Wells possessed a usable amount of cocaine and affirm his conviction on this charge.

II. Denial of Wells's Motions to Suppress Evidence

In what is actually his first point on appeal, Wells argues that his arrest for shoplifting was invalid, and therefore, the cocaine that was seized from him was the fruit of the poisonous tree and should have been suppressed. When reviewing a circuit court's denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to the inferences drawn by the circuit court. Bathrick v. State , 2016 Ark. App. 444, at 1–2, 504 S.W.3d 639, 641. We defer to the circuit court's superior position in determining the credibility of the witnesses and resolving any conflicts in the testimony. Id.

Essentially, Wells argues that Patrolman Clark lacked reasonable suspicion to stop or detain him for shoplifting; therefore, he argues that his arrest was unlawful and the cocaine found in his pocket should have been suppressed. We must therefore consider the pertinent rules and statutes that apply in such a situation: Arkansas Rule of Criminal Procedure 3.1 (2016); Arkansas Code Annotated section 5–36–102 (Repl. 2013); and Arkansas Code Annotated section 5–36–116.

Rule 3.1 provides in pertinent part that a law enforcement officer lawfully present in any place may stop and detain any person "who he reasonably suspects is committing, has committed, or is about to commit ... a misdemeanor involving ... appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct." "Reasonable suspicion" is defined as "a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion." Ark. R. Crim. P. 2.1.

Next, the offense of shoplifting is discussed in Arkansas Code Annotated section 5–36–102(c) as follows:

The knowing concealment, upon an actor's person or the person of another, of an unpurchased good or merchandise offered for sale by any store or other business establishment, gives rise to a presumption that the actor took the good or merchandise with the purpose of depriving the owner or another person having an interest in the good or merchandise.

A person engaging in conduct giving rise to a presumption under section 5–36–102(c)"may be detained in a reasonable manner and for a reasonable length of time by a law enforcement officer, merchant, or merchant's employee in order that recovery of a good may be effected." Ark. Code Ann. § 5–36–116(a)(1). Moreover, "[u]pon probable cause for believing a suspect has committed the offense of shoplifting, a law enforcement officer may arrest the person without a warrant." Ark. Code Ann. § 5–36–113(d)(1). Subsection (d)(2) states that "[t]he law enforcement officer, merchant, or merchant's employee who has observed the person accused of committing the offense of shoplifting shall provide a written statement that serves as probable cause to justify the arrest."

With these standards and rules in mind, we now turn to a more complete assessment of the background facts leading to Wells's arrest. Wells entered a Dollar General store in West Memphis. Silvia Sims, the store manager, observed Wells—via a store security camera—place some store merchandise in his pants. Wells left the store and walked to his red Dodge Durango in the parking lot. Sims watched as Wells was unable to start his truck. She called the police and reported the incident, the suspect, and a description of the truck and the items stolen.

While Wells was trying to start the truck, several police officers, including Patrolman Clark, arrived on the...