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Tennant v. State

Court of Appeals of Arkansas, Division II

February 11, 2015

DAVID WADE TENNANT, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. CR2013-0082-1(B)] HONORABLE ROBIN F. GREEN, JUDGE

Doralee Chandler, for appellant.

Dustin McDaniel, Att'y Gen., by: LeaAnn J. Adams, Ass't Att'y Gen., for appellee.

PHILLIP T. WHITEAKER, Judge

Appellant David Tennant was convicted by the Benton County Circuit Court of one count of possession of drug paraphernalia, a Class D felony.[1] On appeal, Tennant raises three arguments for reversal: 1) the circuit court erred in failing to suppress his un-Mirandized statements; 2) Tennant's subsequent Mirandized statement was the fruit of the poisonous tree and should likewise have been suppressed; and 3) without his two statements, there was insufficient evidence to convict on the possession-of-drug-paraphernalia charge. We find no error and affirm.

I. Sufficiency of the Evidence

Although this is the third and final argument raised in Tennant's brief, double-jeopardy considerations require this court to consider challenges to the sufficiency of the evidence prior to review of any asserted trial errors. Carter v. State, 360 Ark. 266, 200 S.W.3d 906 (2005); Foshee v. State, 2014 Ark.App. 315. Tennant preserved his sufficiency argument by timely seeking a motion to dismiss from the circuit court. A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial, is considered a challenge to the sufficiency of the evidence. Vance v. State, 2011 Ark.App. 413. When the sufficiency of the evidence is challenged in a criminal conviction, we review the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. Id. Substantial evidence is evidence that induces the mind to go beyond mere suspicion or conjecture, and that is of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. Id.

We turn then to an examination of the evidence adduced at trial. Sergeant Scott Miller of the Siloam Springs Police Department was dispatched to a fight involving three individuals in a red or maroon Firebird. When Miller arrived at the scene, he found a red Firebird with three people inside, two of whom he recognized through numerous past dealings: the driver, Collin Self, and appellant Tennant, who was sitting in the back seat. As Miller approached the car, he saw Self making "a lot of hurried movement" and reaching down underneath the front seat. There was also a lot of movement from the passenger-side back seat, where Tennant was sitting. Miller walked up to the car, identified everyone, and, while he was speaking to them, noticed the handle of a spoon and the plunger end of a syringe sticking out from under the driver's seat.

Miller asked everyone about the fight. Everyone gave consistent stories that Tennant and the woman in the car, Lucinda McCartha, had gotten into an argument. Miller then asked Self about the items under the front seat. Self was not cooperative and would not answer any questions.

Based on the occupants' behavior, the officer's observation, and the officer's knowledge of Self's and Tennant's histories, Miller conducted a probable-cause search of the car. Miller's search revealed the following items: an uncapped syringe with a liquid substance in it; a spoon with a white-powdery residue; a cotton ball under the seat; a cooler bag containing an empty package of syringes and three unused syringes; and a "PowerAde container about half full of liquid that appeared to have something dumped in it, which is consistent of [sic] a crystal-like substance."

Miller again asked the occupants of the car what they knew about the items found in the search. Miller primarily addressed his questions to Self because Self was the driver; however, all three denied any knowledge of the items. Miller informed Tennant and Self that, "if nobody is going to own this stuff then I have no choice but to arrest all of you for possession." Tennant "began to yell at Mr. Self about owning it and own what is yours."[2]Self began yelling back at Tennant, and Miller decided to arrest them all for constructive possession of the items found in the car. Tennant, who was searched incident to the arrest, had a syringe end cap and a syringe in his pocket. Once everyone was taken to the police station and given their Miranda warnings, Tennant told Miller that he and the others had gotten together to get high on methamphetamine.

Tennant testified on his own behalf at trial. He denied knowing about or ever seeing the needles in the car, but he said that he saw the needle caps on the center console of the car and picked them up and put them in his pocket because he did not know what they were. Tennant said that he observed a needle on the ground while the police officer was questioning him, but he did not "realize exactly what it was." He agreed that he told Self to "man up to whatever was his and take ownership and he would not do it." Tennant said he "guessed" the paraphernalia was Self's, because "that is the first time I had ever seen the stuff when you showed me pictures of it."

Examining all the evidence introduced at trial, we conclude that sufficient evidence supported Tennant's conviction. A person who "possesses drug paraphernalia with the purpose to use the drug paraphernalia to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter upon conviction is guilty of . . . a Class D felony if the controlled substance is methamphetamine or cocaine." Ark. Code Ann. § 5-64-443(a)(2) (Repl. 2006).

Tennant argues on appeal that statements he gave to police should have been suppressed, and without those suppressed statements, there was insufficient evidence to support his conviction. Contrary to Tennant's assertion, however, when reviewing the sufficiency of the evidence supporting a conviction, this court considers all of the evidence introduced at trial, whether correctly or erroneously admitted, and disregards any alleged trial errors. Populis v. State, 2011 Ark.App. 334; Camacho-Mendoza v. State, 2009 Ark.App. 597, 330 S.W.3d 46. Here, drug paraphernalia, including syringes containing a liquid substance and a spoon with powdery residue, were found in the vehicle in which Tennant was a passenger, and a search of Tennant's person revealed a syringe and a syringe cap. His ...


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