Farris v. State

686 S.W.3d 602

2024 Ark. App. 188

Debra FARRIS, Appellant

v.STATE of Arkansas, Appellee

No. CR-23-565

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered March 13, 2024

APPEAL FROM THE SEARCY COUNTY CIRCUIT COURT [NOS. 65CR-19-90 & 65CR-20-193 & 65CR-20-198], HONORABLE H.G. FOSTER, JUDGE

Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.

Tim Griffin, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.

RITA W. GRUBER, Judge

₁Debra Farris appeals the February 28, 2023 sentencing order that revoked her suspended imposition of sentence (SIS) in three separate cases and sentenced her to consecutive sentences totaling 300 months’ imprisonment and 168 months’ SIS. Farris contends that there was insufficient evidence to revoke each SIS and that her sentences as imposed were illegal. We affirm the revocations and remand for entry of a corrected sentencing order.

I. Factual and Procedural Background

On May 26, 2021, sentencing orders regarding Farris were entered in three separate Searcy County Circuit Court cases: 65CR-19-90, 65CR-20-198, and 65CR-20-193. In case 19-90, the sentencing order reflects that Farris pled guilty to probation revocation and was sentenced to 24 months’ SIS on a felony paraphernalia-possession charge along with fines and fees. In case 20-193, the sentencing order reflects that Farris was sentenced to 36 months’ ₂imprisonment and 24 months’ SIS, having pled guilty to the use or possession of paraphernalia to manufacture methamphetamine or cocaine, a felony charge. She was also sentenced to costs and fees and given 48 days’ jail-time credit. In case 20-198, the sentencing order reflects that Farris, pursuant to a guilty plea, was sentenced to (1) 36 months’ imprisonment and 24 months’ SIS for felony possession of a controlled substance; (2) 36 months’ imprisonment and 24 months’ SIS for felony possession of drug paraphernalia; (3) 36 months’ imprisonment and 24 months’ SIS for felony possession of a controlled substance; and (4) 36 months’ imprisonment and 24 months’ SIS for furnishing prohibited articles. Farris was also sentenced to costs and fees and given 48 days’ jail-time credit.¹

In each case, Farris was provided the same SIS conditions requiring in relevant part that she not violate any laws and refrain from the use of drugs and alcohol. On November 9, 2022, the State filed a motion in each case requesting that Farris’s SIS be revoked. The motion alleged that Farris had violated the conditions of her SIS on October 30, 2022, by possessing fentanyl and drug paraphernalia as well as driving left of center.

A combined revocation hearing was held on February 28, 2023. Caleb Horn, a deputy with the Searcy County Sheriff’s Office, testified that on October 30, 2022, he performed a traffic stop of a vehicle being operated by Farris, whom he identified in the courtroom. He performed the traffic stop because he observed the vehicle driving left of center. Two other people were also in the car: Farris’s mother, Sue, and Brian Echols. Horn testified that he ₃knew Farris was on parole, and he asked her if he could search the car. Farris consented to the search, and Horn found a marijuana bud in a cigarette pack in the driver’s-side door of the vehicle. He did not know what brand cigarettes Farris smoked. During the stop, Deputy Tharp located a lunchbox that Farris claimed as hers on the passenger-side floorboard under some dog food. Agent Lisa Wells arrived on the scene and asked the deputies to conduct a home visit with her, and they did.

Deputy Michael Tharp testified that he assisted in the traffic stop of Farris on October 30, and he identified Farris in the courtroom. Within the lunchbox, Tharp found a glass smoking device that had what he believed—on the basis of his training and experience—to be marijuana inside it. He assisted in the search of the house, and half of a "pressed pill" that tested positive for methamphetamine and fentanyl was found in Farris’s bedroom. The half pill was inside a small bag in a basket on Farris’s bedside table.

Agent Lisa Wells, the assistant area manager for the Department of Community Corrections, testified that she received a call about Farris, and she asked the deputies to assist her on a home visit. Wells found a glass smoking device with residue. The device was in a black knife holster on the top of the dresser in Farris’s bedroom. There was another smoking device on a different table, a marijuana grinder that had some marijuana residue in it, and an orange device that looked like it was used for smoking substances, which also had residue on it. There were hemostat clips in a cabinet drawer and a container with a waxy residue substance, which is commonly found with marijuana wax. There was a pill bottle with the label scratched off that contained thirty .22-caliber bullets and white pills Wells was able to ₄identify as "mirtazaprine." There was also other drug paraphernalia located around the room. She did not request that any of the items she had located be tested for fingerprints or DNA analysis or be submitted for any other forensic examination.

The defense then called Farris’s mother, Sue Farris. Sue testified that Farris lived with her in her house in which Farris had her own room. She "guessed" everything that was in the bedroom belonged to Farris. While Farris was in rehab for six months, Sue went into Farris’s room to make Farris’s bed, but otherwise "left it alone because it was her stuff." Sue’s adult granddaughter had stayed in Farris’s bedroom "quite a bit" and had stayed last in the room about a week before Farris came home. Sue did not clean the room after her granddaughter vacated it. No one else stayed in the room while Farris was in rehab.

Sue testified further that the car belonged to her and "lots of people" used it. Prior to being pulled over, they—Sue, Farris, and Sue’s adult nephew Brian Echols—had all been at a family member’s birthday party at a house. It was a child’s birthday party, and she was not aware of any drugs at that party. Farris had left a bag with "her dog stuff in it" at that same house a week or so prior. Farris put the bag in the backseat floorboard. Sue did not know if anyone looked in the bag after getting into the car. They stopped on the way home to get groceries. Echols handed Sue the bag, which was like a lunch bag, from the back seat, and Sue put it at the front of the car. She believes that while she and Farris were inside the store, Echols smoked something in the car because she smelled it when they got back to the car. Sue testified that Farris smokes "Montego’s or something or other," and Sue does not smoke ₅anything. Sue did not know anything about a pipe, and they had no pipe on them, but she was sure that Echols did.

Farris testified next. She knew the cigarette box was in the driver’s-side car door, but she never opened or touched it because it was not hers. She has two or three family members who smoke the brand that was found, but the cigarette box was not either of her brands, "Monos and Pall Mall." Other people drive the car. She, her mother, and Echols had been at a birthday party at a house, and she had previously left her dog with his food and "stuff" at that same house. When she left the lunch bag at the house, it contained items only for the dog. The bag was returned to her, and she put it on the back floorboard of the car. When she returned to the car after getting groceries, she noticed that her "doggy bag" was in the front floorboard where her mother had been sitting. The bag had been unzipped and half zipped back up. Farris had always lived and continued to live with her mother except when she (Farris) had been incarcerated. She had returned home about two to three weeks before the October traffic stop. She did not move back into her room but stayed on a couch in the front room because her mother had been ill. She did not go search her room. None of the items found were hers except the grinder, which she had had for probably ten or twelve years. She testified that she no longer has a drug habit but admitted having tested positive for methamphetamine since she "got out."²

₆The circuit court ruled from the bench that based on its opportunity to observe the witnesses and determine their credibility and the reasonableness of their testimony, it believed there to be both direct evidence and circumstantial evidence from which the only reasonable inference that could be drawn was that Farris violated the terms of her SIS.

Further testimony—not specific to the issues on appeal—was given for sentencing purposes, and closing arguments were made. The circuit court asked Farris if she could pass a drug test that day, and Farris affirmed under oath that she could. The circuit court then specifically found Farris to have "very poor credibility," noting that she came in and offered "the most incredible testimony with regard to explanations that she absolutely is surrounded by controlled substances, paraphernalia and it appears to belong to everybody else even though it’s in her room" and in the car she was driving. The court noted Farris’s long history of drug use and ordered her to be drug tested. The hearing resumed after a lunch break. The drug test results reflected that Farris tested positive for methamphetamine and opioids.

On February 28, 2023, a combined sentencing order was filed in all three cases. In case 19-90—delineated as offense No. 1—Farris was sentenced to 72 months’ incarceration, to run consecutively to "offense # 2, 3, 4, 5, 6." The sentencing order further reflects that Farris was being sentenced in that case on four criminal counts of possession of drug paraphernalia. In case number 20-193—delineated as offense No. 2—Farris was sentenced to 204 months’ incarceration, to run consecutively to "offense # 1, 3, 4, 5, 6." The offenses delineated as 3, 4, 5, and 6 were with respect to case 20-198. There, Farris was sentenced to 24 months’ incarceration and...