Fowler v. State

684 S.W.3d 271

2024 Ark. App. 63

George FOWLER, Appellant

v.STATE of Arkansas, Appellee

No. CR-23-281

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered January 31, 2024

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, GREENWOOD DISTRICT [NO. 66GCR-22-99], HONORABLE STEPHEN TABOR, JUDGE

Dusti Standridge, for appellant.

Tim Griffin, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.

WENDY SCHOLTENS WOOD, Judge

₁George Fowler appeals the Sebastian County Circuit Court sentencing order convicting him of possession of methamphetamine with purpose to deliver, possession of drug paraphernalia, and possession of marijuana and sentencing him to an aggregate of sixty-six years’ imprisonment. In addition to challenging the sufficiency of the evidence to support the convictions, Fowler argues that the circuit court erred in allowing the testimony of a drug-task-force officer during the sentencing hearing. We affirm.

On April 22, 2022, officers with the Barling Police Department conducted a traffic stop of a vehicle occupied by Fowler and Mona Gray. Methamphetamine, paraphernalia, and marijuana were discovered during the stop, and additional methamphetamine was subsequently found at Fowler’s home. Fowler was charged as a habitual offender with possession of methamphetamine with the purpose to deliver pursuant to Arkansas Code ₂Annotated section 5-64-420(b)(3) (Supp. 2023) (greater than 10 grams but less than 200 grams), possession of drug paraphernalia (second offense) pursuant to Arkansas Code Annotated section 5-64-443(a)(2) (Supp. 2023), and possession of marijuana pursuant to Arkansas Code Annotated section 5-64-419(b)(5)(A) (Supp, 2023) (less than four ounces).

Prior to the jury trial, the court heard arguments on Fowler’s motion in limine, which sought to prevent the State from introducing evidence seized at his home following the traffic stop. He argued that the drugs found at his home were "too attenuated both temporally and geographically" from the traffic stop. The State argued that testimony would reveal that the drugs found at the home were all part of the same crime. As the result of counsel’s statements of the anticipated testimony, the court reserved a ruling until it heard the testimony at trial but indicated that if "those are the facts, then I expect it will be admissible." After the State announced that it planned to reference those facts in its opening statement, the circuit court stated, "Okay. Well, I think you can - if you have stated the facts correctly, then it would be - those facts would be admissible at trial."

At trial, Officer Joshua Aden of the Barling Police Department testified that drug-task-force officers contacted him about stopping a vehicle. The vehicle was stopped after the driver, Gray, failed to use a turn signal. When Officer Aden approached the vehicle, he saw Fowler digging though Gray’s purse. Officer Aden said that after Gray exited the vehicle, she initially denied having any illegal narcotics on her person but then pulled marijuana from her back pocket. Officer Aden testified that Gray said she was scared and did not want to get in trouble, at which time she pulled a bag of methamphetamine from the front of her ₃pants, stating that Fowler had placed the bag there when they were getting pulled over. Officer Aden said that Gray again denied that there were any other drugs in the car but later said there was marijuana. During a search of the vehicle, a bag of marijuana was discovered in the center console, and a pipe was found in Gray’s purse. Officer Aden testified that Gray said she had lied to the officers because she was scared, did not want to get in trouble, and did not want Fowler to hurt her. Officer Aden said that Gray told the officers that there were more narcotics at Fowler’s home. Fowler was transported to the Sebastian County Detention Center, and Gray went with the drug-task-force officer to Fowler’s home.

Reserve Officer Hunter Brace, who was working with Officer Aden, testified that Fowler was rummaging through a bag in his lap when they initiated the traffic stop. Officer Bruce stated that Fowler looked at him, immediately locked the door, refused to show his hands, and would not identify himself once he was removed from the vehicle.

Gray, who married Fowler the month before the trial, testified that she moved into Fowler’s home in Lavaca about a month before the traffic stop, but they were not in a romantic relationship at that time. Gray explained that after lunch on April 22, she and Fowler went to several stores before going to the Emily Hotel to see a friend named Bruno. There, she saw Fowler had methamphetamine on a scale but was unaware he had drugs on him prior to that time. They returned home to cook dinner. Gray said that as they left home to take dinner to Bruno at the hotel, Fowler handed her a black zippered bag and told her to put it in the wheel well of a white car in the yard. Gray claimed she did not know what was in the bag and had never seen it. After she had put the bag in the wheel well, she then ₄drove back to the hotel with Fowler in the passenger seat. While at the hotel this second time, Gray saw Fowler hand something to Bruno and heard a discussion about money.

Gray testified that when they left the hotel, she was pulled over after turning onto the highway. She explained that as they were getting pulled over, Fowler told her that she needed "to hold something and lifted [her] shirt and put a bag down [her] pants." She was unaware of what Fowler put down her pants. Gray acknowledged that when police first asked, she denied there were drugs in the car, explaining that she was scared because Fowler had been physical with her in the past. She said that when asked again, she pulled out a "big, plastic bag" of what looked like methamphetamine. Gray also said that she told the officers there was marijuana in the console that belonged to her; however, she could not recall what she pulled out of her pocket. Gray further testified that the officers asked her if there were any drugs back at the house, and she told them yes. She stated that as Fowler was putting the bag of methamphetamine down her pants, he told her that there were two more ounces of methamphetamine at the house. She returned to the house with the officers and retrieved the black zippered bag from the wheel well of the car, which was not operational.

On cross-examination, Gray acknowledged pulling a small bag of "weed" from her pocket. She admitted lying to police multiple times during the encounter but said that the third time they asked whether there were any drugs, she got nervous and "pulled everything out." When asked about telling the officers that she did not see Fowler sell "dope" to Bruno, Gray claimed that she never saw them exchange money. As to her relationship with Fowler, ₅she said that it became romantic after he bonded her out of jail, he begged her not to testify against him, and she promised she would not.

Lieutenant Stephen Becker of the Barling Police Department testified that he was at the hotel when he saw Fowler and Gray park the car, get out, go into the hotel, and leave after a short period of time. Lieutenant Becker was personally familiar with the hotel because it was known for drug activity, and he surveilled the hotel a couple of times a month. He said that he alerted Officer Aden that if he could get probable cause, it may be a "decent stop." Lieutenant Becker and another officer went to the subsequent traffic stop. Lieutenant Becker said that he saw Officer Bruce having trouble with Fowler’s noncompliance, so he stepped in to assist. Like the other officers, Lieutenant Becker said that Gray initially denied having anything illegal on her, but then she ended up giving him marijuana, which she pulled from her front pocket. When asked if she had anything else illegal, Gray told Lieutenant Becker no. Lieutenant Becker testified that after he Mirandized her, Gray removed a bag from her underwear, which he described as a bag containing two smaller bags of methamphetamine. Lieutenant Becker said Gray told them that Fowler made her put it in her pants as they were being pulled over and that there were more drugs that belonged to Fowler back at the residence.

After Gray told them about the drugs at the residence, Lieutenant Becker said they called Deputy Coby Miner of the Sebastian County Sheriff’s Department Drug Task Force, who met them at the house. Lieutenant Becker drove Gray’s car to the house. When he arrived, Gray and the officers were already at the parked car where Gray had retrieved the ₆drugs. Lieutenant Becker stated that there were several baggies of what appeared to be methamphetamine, "brownish-looking tar stuff in tin foil, and a bunch of packages of pills that [were] packaged by group." Lieutenant Becker said that, in his experience, the amount and the individual packaging of the drugs were indicative of distribution of narcotics as opposed to personal use.

Officer Dalton Waggoner with the Barling Police Department testified that he was working drug interdiction on April 22 and watching the Emily Hotel, which was known for drug activity. Like Lieutenant Becker, he watched Fowler and Gray pull up, go inside briefly, and return to the vehicle. Once he arrived at the traffic stop, he also saw that Fowler was not complying with officers. Officer Waggoner’s account of the interaction with Gray was virtually identical to Lieutenant Becker’s. He added that he heard Gray say that there were two more ounces of methamphetamine that belonged to Fowler at their house. With Gray in his vehicle, he and Deputy Miner drove to the residence, where she pulled a black zippered bag out of the wheel well. Officer Waggoner said the bag contained three or four separate baggies of what appeared to be methamphetamine. The tags on the car where the black zippered bag was found was registered to Dana Fowler. Officer Waggoner also said that...