Scott v. State

2015 Ark. App. 504

471 S.W.3d 236

Rebecca Scott, Appellant

v.State of Arkansas, Appellee.

No. CR–15–37

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered September 23, 2015

James Law Firm, Little Rock, by: William O. “Bill” James, Jr., for appellant.

Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

Opinion

RITA W. GRUBER, Judge

Appellant Rebecca Scott appeals from convictions for possession of methamphetamine and possession of drug paraphernalia. Her sole point on appeal is that the evidence was insufficient to prove that she possessed either methamphetamine or drug paraphernalia and that the trial court therefore erred in denying her motions for directed verdict. Because her argument was not preserved for our review, we affirm her convictions.

On October 24, 2013, the Ashdown Police Department, the Arkansas State Police, and the Drug Task Force executed a search warrant at appellant's home. Appellant was the only person living in the house and was there with her two grandchildren when the police arrived. There were three bedrooms in the house. Officers discovered a “busted” glass pipe containing black residue; little baggies containing what the officers believed to be crystal methamphetamine; and another pipe, a shooter straw, lighters, and tin foil containing black residue in a dresser in the master bedroom. They also found a glass vial, three shooter straws, a razor blade, and another pipe on a shelf in the master closet. Clayton Williams of the Arkansas State Police testified at trial that appellant identified the master bedroom as her room on the night of the search. On open shelves in the laundry room, officers found baggies containing what they believed to be methamphetamine with a few pieces of foil and a straw. After being weighed and tested, the substance proved to be about a gram and a half of methamphetamine. Finally, officers discovered a $100 bill outside in a barbecue pit with a metal pulley.

Appellant gave a statement to Ashdown Police Officer Brandon Kennenmore on the evening of the search in which she admitted that she used methamphetamine but said that she did not sell it. She also knew approximately how much methamphetamine was located in the laundry room. Later, at trial, appellant testified that she owned her home and that, although she was the only person who lived there, her daughter and Celia East had access to her home. She said that Celia came to help her clean and that she also came to “hang out” occasionally when she was fighting with her boyfriend. She said that Celia had “unfettered access” to her home. Contrary to her earlier statement to police, she testified that she did not know there were drugs in her house and that she did not stay in the master bedroom where the drugs and paraphernalia were located, but slept in the front bedroom.

Appellant's daughter testified that she lived with her husband and their two children in Hayworth, Oklahoma, and occasionally stayed at her mother's home because she worked some nights at the Sonic in Ashdown. She said that she never saw methamphetamine in her mother's home and that no one usually slept in the master bedroom. She acknowledged that her mother had previously been in prison for methamphetamine.

Appellant's counsel moved for a directed verdict at the close of the State's evidence, stating, “I don't believe the State has proven the elements of possession of either drug paraphernalia or possession of controlled substance at this time.” The circuit court denied the motion. At the close of all the evidence, counsel renewed his motion, again alleging that the State had failed to prove all of the elements of either crime. In neither instance did counsel explain which elements had not been proved or why. The court denied appellant's motions, and the jury found appellant guilty of both offenses.

On appeal, appellant contends that the evidence was insufficient to prove beyond a reasonable doubt that she possessed either methamphetamine or drug paraphernalia. Specifically, she argues that this case is a “joint occupancy” case because Celia East and appellant's daughter shared her residence. Thus, she argues, the State was required to prove not only that appellant exercised care, control, and management of the contraband but also that she knew the matter possessed was contraband, citing Darrough v. State,322 Ark. 251, 908 S.W.2d 325 (1995).

In drug cases, it is not necessary for the State to prove that an accused physically held the contraband, as possession of contraband can be proved by constructive possession, which is the control or right to control the contraband. Tubbs v. State,370 Ark. 47, 50, 257 S.W.3d 47, 50 (2007). Constructive possession can be inferred where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Polk v. State,348 Ark. 446, 453, 73 S.W.3d 609, 614 (2002). When there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband. Morgan v. State,2009 Ark. 257, at 9, 308 S.W.3d 147, 153. In such cases, the State must prove two elements: (1) that the accused exercised care, control, or management over the contraband and (2) that the accused knew the matter possessed was contraband. Id.at 9, 308 S.W.3d at 153–54. This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. Id.

Before we address appellant's argument, we turn to Arkansas Rule of Criminal Procedure 33.1, which requires a motion for directed verdict to specify how the evidence is deficient. Ark. R. Crim. P. 33.1(c)(2014)....