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Foster v. State

Court of Appeals of Arkansas, Division III

June 17, 2015

JACOB MICHAEL FOSTER, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Page 177

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION. NO. 60CR13-2268. HONORABLE LEON JOHNSON, JUDGE.

Daniel A. Webster, for appellant.

Leslie Rutledge, Att'y Gen., by: Kristen C. Green, Ass't Att'y Gen., for appellee.

CLIFF HOOFMAN, Judge, KINARD and WHITEAKER, JJ., agree.

OPINION

Page 178

CLIFF HOOFMAN, Judge

Jacob Foster appeals after he was convicted by the Pulaski County Circuit Court of possession of a controlled substance schedule I or II not meth/cocaine in violation of Arkansas Code Annotated § 5-64-419(b)(2)(A) (Supp. 2013) and possession of a controlled substance schedule VI in violation of Arkansas Code Annotated § 5-64-419(b)(5)(i). He was sentenced to serve forty-eight months' probation on each count to be served concurrently, to pay a fine of $1,000, and to pay court costs and fees. On appeal, appellant contends (1) that the trial court erred in denying his motion to suppress the State's evidence in violation of Arkansas Rule of Criminal Procedure 3.1 and the Arkansas and United States Constitutions and (2) that the trial court erred in denying his motion for a directed verdict. We affirm.

Appellant was charged by information with possession of a controlled substance schedule I or II not meth/cocaine in violation of Arkansas Code Annotated § 5-64-419(b)(2)(A) and possession of a controlled substance schedule VI in violation of Arkansas Code Annotated § 5-64-419(b)(5)(i) on July 16, 2013. Appellant waived his right to a jury trial, and he filed a motion to suppress the physical evidence on January 13, 2014. Because appellant had waived the right to a jury trial, the trial court heard the motion to suppress in the course of the bench trial without an objection.

Detective Cindy Harbour testified at trial that she received a call from dispatch that there was a " domestic physical in progress." Later, dispatch explained that it was not physical but that " he was simply banging on the door trying to get in according to the caller." Additionally, dispatch explained that the woman on the phone was frantic and had exclaimed, " He's trying to get into my house. He's trying to kick in my door." Furthermore, dispatch told Detective Harbour that the man was leaving the scene in a white pickup truck and that there was an active order of protection against him in the system. During cross-examination, she specifically testified that " at the time [the Arkansas Crime Information Center] said that [the order of protection] was active, and [that she] had a printout showing that it was active." Therefore, even though it had been dismissed, as it was later discovered, she did not know it at the time. Thus, she conducted an investigative stop when she saw a vehicle matching the description on the street leaving the area. After Detective Harbour testified regarding the circumstances of the stop, the trial court denied the motion to suppress, finding that the stop was justified.

Detective Harbour testified that appellant was extremely upset. As she tried to calm him, he kept stating that he did not want to go to jail. After smelling a strong odor of marijuana, she asked him if he had marijuana in the vehicle. At first, appellant denied having marijuana but later opened the console and handed Detective Harbour a marijuana joint after she stated that she was going to ask him to

Page 179

step out of the vehicle to search it. She additionally noticed a large amount of cash, which appellant explained was his paycheck. After appellant stepped out of the vehicle and the officer riding with her placed appellant in handcuffs, she found a ziplock bag in the console containing a pill and about a quarter of another pill. She sent the partial pill to the Arkansas State Crime Lab for testing.

Benjamen Gilbert, a forensic chemist at the crime lab, testified that the partial pill weighed 0.0824 grams and that the tests confirmed that it was morphine. Furthermore, he confirmed that another exhibit contained 0.7149 grams of marijuana. He explained that he crushed the partial pill to test it and compared it to another morphine sample. The samples are good for one year from the date that they are made, but he did not have the date of that particular sample with him at trial. However, he ...


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