DUSTIN B. HEMBEY APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE PIKE COUNTY CIRCUIT COURT [NO. 55CR2014-71.1]
HONORABLE TOM COOPER, JUDGE
Randle Smolarz, for appellant.
Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge
Dustin Hembey was arrested and charged with one count of
being a felon in possession of a firearm. He exercised his
right to trial by a jury. A Pike County jury convicted him of
that charge and sentenced him as a habitual offender to
thirty years in the Arkansas Department of Correction. For
his sole point on appeal, he argues that there was
insufficient evidence that he possessed the firearm for
purposes of the statute. We affirm.
facts presented to the trial court are fairly
straightforward. On September 13, 2014, Pike County
Sheriff's Deputy Shaun Furr and an EMT responded to
Hembey's home to provide medical care to his
grandmother. Hembey told Deputy Furr that his
grandmother had fallen, that he put her to bed, and that he
had called 911. While at the residence, Deputy Furr observed
Hembey exhibiting unusual behavior. Deputy Furr noticed that
Hembey was picking things up and moving them. Due to the
nature of the call, Deputy Furr called Detective Kinsler for
backup and secured the scene. Deputy Furr and Hembey then
waited outside for Detective Kinsler to arrive. While
awaiting Detective Kinsler's arrival, Deputy Furr asked
Hembey to sign a voluntary search and statement form. He
agreed. After Detective Kinsler arrived, Detective Kinsler
advised Hembey of his Miranda rights and confirmed
his consent to search. A search of the home revealed a
.22-caliber rifle and two BB guns leaning against a chest of
drawers in a back bedroom. A box of .22-caliber ammunition
was located on the night stand. Hembey admitted that the bedroom
where these items were discovered was his bedroom and that
the rifle was his, but claimed he was allowed to possess it.
In addition to this evidence, the State introduced evidence
of Hembey's prior felony conviction and then rested.
close of the State's case, Hembey moved for a directed
verdict, arguing that the State had failed to prove
possession of the firearm. The trial court denied the motion.
The defense did not put on any evidence and, after resting,
renewed its directed-verdict motion. The court again denied
his motion, and the jury returned a guilty verdict. Hembey
appeals the conviction, arguing that the trial court erred in
denying his directed-verdict motions because there was
insufficient evidence that he possessed the firearm in
appeal, we treat a motion for directed verdict as a challenge
to the sufficiency of the evidence. Foster v. State,
2015 Ark.App. 412, 467 S.W.3d 176; Bustillos v.
State, 2012 Ark.App. 654, 425 S.W.3d 44. We will affirm
the circuit court's denial of a motion for directed
verdict if there is substantial evidence, either direct or
circumstantial, to support the circuit court's ruling.
Bustillos, supra. Substantial evidence is
evidence forceful enough to compel a conclusion one way or
the other beyond suspicion or conjecture. Id.
Furthermore, this court views the evidence in the light most
favorable to the circuit court's ruling, and only
evidence supporting the ruling will be considered.
Hembey argues that the State failed to prove that he had
knowledge of the prohibited weapon. More specifically, he
argues there was no evidence that he knew the firearm was
present in the bedroom or that the rifle was a firearm and
not a BB gun. In support of his argument, he notes that the
firearm was mixed amongst other pellet guns and that
Detective Kinsler testified that the rifle looked like a BB
gun. However, he did not make that argument to the trial
court in his motion for a directed verdict as he was required
to do to preserve this issue for appeal. Ark. R. Crim. P.
33.1(c). The reason underlying this rule is that, when
specific grounds are stated and the proof is pinpointed, the
trial court can either grant the motion or allow the State to
reopen its case and supply the missing proof. Matar v.
State, 2016 Ark.App. 243, at 4, 492 S.W.3d 106, 109. A
further reason that the motion must be specific is that the
appellate court cannot decide an issue for the first time on
appeal and cannot afford relief that is not first sought in
the trial court. Id. Thus, we do not decide this
also argues that the State failed to prove actual possession,
constructive possession, or joint possession coupled with
knowledge of the firearm's existence. He notes that there
was no evidence presented that he had held, touched, or moved
the firearm, or that he even knew the firearm existed. He
further highlights the testimony that indicated other
persons-including nurses, caregivers, relatives, and
friends-had access to the location where the gun was found.
we need not delve too deeply into the arguments or the law of
actual, constructive, or joint possession due to the facts
presented to the circuit court. Detective Kinsler testified
that Hembey admitted owning the gun but claimed he was
allowed to possess it. The gun and the ammunition for it were
found in Hembey's bedroom. Appellate counsel acknowledges
Detective Kinsler's testimony regarding the ownership of
the rifle but argues that this admission should not be
considered because it was produced during cross-examination
and not in the State's case-in-chief. He contends that to
consider such evidence would relieve the State of its
constitutional burden to present sufficient proof of the
elements in violation of Hembey's right to due process.
This argument was never presented below, and he cites no
convincing authority that, when considering a motion for
directed verdict, the trial court may consider evidence
presented only by the State in making its determination. We
do not address issues not raised and ruled on by the trial
court, nor arguments not well developed or supported by
convincing authority. See Stewart v. State, 2010
Ark.App. 9 at 3, 373 S.W.3d 387, 389-90.
the evidence in the light most favorable to the State as we
must do, we hold that Hembey's admission to owning the
firearm and his access to it is sufficient evidence to
support his conviction for possession of a firearm;
therefore, we affirm.