Garner v. State

2020 Ark. App. 101

594 S.W.3d 145

Mark GARNER, Appellant

v.STATE of Arkansas, Appellee

No. CR-19-492

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered February 12, 2020

Knutson Law Firm, by: Gregg A. Knutson, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael L. Yarbrough, Ass’t Att’y Gen., for appellee.

BRANDON J. HARRISON, Judge

Mark Garner appeals a 15 April 2019 sentencing order reflecting eight convictions in four separate criminal cases. All cases were tried together. Three of the criminal cases were revocations of Garner’s suspended sentence or probation for commercial burglary. Although a sentencing order reflecting eight convictions was appealed, Garner only addresses the five drug-related convictions. So this appeal is about whether the State sufficiently supported case number 66CR-18-1313, which led to five drug convictions against Garner for (1) possession of drug paraphernalia, (2) manufacture of marijuana, (3) maintaining a drug premises, (4) possession of drug paraphernalia, and (5) possession of methamphetamine.

Here is a brief summary of the events that led to the drug convictions. Garner lived in a three-bedroom home with two other people, one female and one male. Within the home, two of the bedrooms were located downstairs, and one was located upstairs. Of the downstairs bedrooms, only one was used as a bedroom; the other was used for storage. Garner did not occupy the upstairs bedroom. The upstairs bedroom was occupied by Andy Sebren. For reasons discussed in more detail later, the police ended up searching the home pursuant to a warrant. While doing so, they found controlled substances and paraphernalia throughout the home and its curtilage. Specifically, marijuana and related paraphernalia were found in the living room. A marijuana plant was found in a shed on the property. Methamphetamine was found in the upstairs bedroom. A methamphetamine pipe was found inside a tin located within a cabinet in the kitchen. Methamphetamine was found inside a nightstand located in the downstairs bedroom that was not used for storage.

Garner was charged with and convicted of possessing the marijuana and paraphernalia located in the living room, the marijuana plant located in the shed, the methamphetamine pipe found in the kitchen, the methamphetamine found in the downstairs bedroom, and with maintaining a drug premises.

We reverse and dismiss the charges that Garner possessed the methamphetamine pipe found in the kitchen and that he possessed the methamphetamine in the downstairs bedroom. We affirm all the other convictions.

When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, and only the evidence supporting the verdict will be considered. Stone v. State , 348 Ark. 661, 74 S.W.3d 591 (2002). A conviction is affirmed if substantial evidence exists to support it. Id. Substantial evidence is evidence forceful enough to compel a conclusion beyond suspicion or conjecture. Id.

To preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict that advises the circuit court of the exact element of the crime that the State has failed to prove. Pratt v. State , 359 Ark. 16, 23, 194 S.W.3d 183, 187 (2004). Here is Garner’s motion for a directed verdict against the drug charges in case number 1313.

Your Honor, at this time, I am going to move for a directed verdict. I believe the State has failed to prove that my client possessed—Count I, the possession of drug paraphernalia for ingesting methamphetamine and cocaine. I believe that they failed to prove the manufacture of marijuana and the maintaining premises for drug activity and the possession of drug paraphernalia for repackaging and the possession of meth. You heard—there’s obviously been some false comments made in here I suspect by the bail bondsman, who had a reason to be angry because of the person he was looking for, with the allegations that there were a bunch of knee-high plants, that they obviously removed things. The pictures show that room was cluttered. There was nothing removed from that. You got one small plant that’s about four inches tall. And Officer Lum admitted that—or his testimony was that Sebren was the one with all the methamphetamine and stuff like that upstairs—and he’s already pled guilty to that—and then he said that Mr. Garner admitted to the stuff on the end table and they had brought my client from outside and brought him in, sat him down at that table. There’s nothing that indicated that he looked and saw exactly what was there. And Officer Lum specifically did not say is this baggy [sic] of methamphetamine or this white crystalline substance yours. In fact, he said it’s not even in the report that there was that baggy [sic] there. And I think Officer Lum was very truthful here today. He said I cannot say that the bedroom was Mr. Garner’s. We are speculating as to that. We cannot have speculation. He found stuff that belonged to the woman and she’s not charged. So you can't go with the items that were found in the bedroom, which would have been the baggies of seeds and that stuff.

The meth pipe that they found in the kitchen, again, that’s in an area open to other individuals. There’s nothing that shows that he had knowledge of it or was in a position to exercise dominion and control over that and so they're speculating to ask that go to the jury. I just don't believe the State made their burden on those. The manufacture I can see that’s a close call because of the one plant and perhaps the—but, you know, if that’s a misdemeanor amount, that’s all I am going to say on that right now. But I believe the State has failed to meet the burden on these charges.

....

I also, if I didn't specifically state it, object to the maintaining premises, because we don't have any evidence that there were any drug sales going on out of there.

....

[B]ut Officer Lum said they were not on their radar for anything. I don't believe the evidence is sufficient to show that there was that kind of—any kind of activity sufficient to justify conviction for that charge.

We will now address the five drug-related convictions in more detail.

I. Marijuana Convictions

The jury convicted Garner of manufacturing marijuana, a Class A misdemeanor; and possession of drug paraphernalia to process, prepare, test, or analyze marijuana, a Class D felony. Ark. Code Ann. § 5-64-439(b)(1) (Repl. 2016); Ark. Code Ann. § 5-4-443(d) (Repl. 2016). The prosecutor played the jury a short video showing the marijuana plant in the shed, a photograph of the dried marijuana plant recovered from the shed, and a foil emergency blanket used to keep the growing plant warm. Jurors also saw a photograph of Garner’s marijuana, a marijuana pipe, a grinder, and rolling papers sitting on an end table in the living room. There was testimony during the trial that Garner told a police detective that the marijuana and related marijuana paraphernalia, which were in plain view in the living room, were his. Garner admitted to the detective that he knew about the small marijuana plant growing in the shed on the property.

In his appellate brief, Garner "concedes that these items were likely substantial evidence for purposes of a motion for directed verdict." Additionally, Garner did not make any specific, fact-based challenges to these marijuana charges in his directed-verdict motion during the trial. We therefore affirm the marijuana convictions.

II. Drug-Premises Conviction

The jury convicted Garner of maintaining a premise for drug activity and found that he committed the offense within 1,000 feet of a church or school. Ark. Code Ann. § 5-64-402(a)(2), (b)(2). Arkansas Code Annotated section 5-64-402 forbids any person from knowingly keeping or maintaining any dwelling that is resorted to by a person for the purpose of using or obtaining a controlled substance. Marijuana is a controlled substance under Arkansas law. Ark. Code Ann. § 5-64-215 (Supp. 2019). In his directed-verdict motion, Garner made a skeletal argument that there was insufficient evidence for the drug-premises charge because the State did not show that there were "drug sales going on out of there." He is limited to this argument on appeal. Campbell v. State , 319 Ark. 332, 333, 891 S.W.2d 55, 56 (1995). The State does not have to prove that drug sales occurred as an element of the crime. Loggins v. State , 2010 Ark. 414, at 7, 372 S.W.3d 785, 791. That the dwelling was used for consuming or using drugs is enough. Id. And Garner did not challenge the 1,000-foot "drug-free zone" enhancement.

The drug-premises conviction, and the related sentence enhancement, are affirmed.

III. Possession of Methamphetamine

The jury convicted Garner of possession of less than two grams of methamphetamine. Ark. Code Ann. § 5-64-419(b)(1)(A). He argues that there was insufficient evidence of constructive possession in a jointly occupied premises. While Garner did not state the words "constructive possession" or "jointly occupied premises," he did argue specific facts in his directed-verdict motion. The motion for a directed verdict was not ideal, but it preserved the point well enough, so we will reach the merits of his argument.

A. The Facts Related to Methamphetamine Possession

On 25 October 2018, police officers obtained a warrant and searched a house located at 1811 North C Street in Fort Smith, Arkansas. Garner was outside, one-half block away from the house and walking a small child in a stroller when police officers began searching the home. When the officers entered the home, they found a man named Andy Sebren in an upstairs bedroom. No other person was present during the search. Police sergeant Jeffrey Lum testified that he believed the downstairs bedroom was Garner’s bedroom, because he saw an identification document in the room "that belonged to his significant other," Elizabeth Darnell. A baggie containing .0183...