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Szczerba v. State

Court of Appeals of Arkansas, Division III

January 25, 2017

BRENDA MAE SZCZERBA APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NOS. 66CR-15-166, 66CR-15-172, and 66CR-15-173], HONORABLE STEPHEN TABOR, JUDGE AFFIRMED; REMANDED FOR CORRECTION OF SENTENCING ORDER

          David Dunagin, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Priest, Ass't Att'y Gen., for appellee.

          RITA W. GRUBER, Chief Judge

         Brenda Mae Szczerba appeals her convictions for possessing methamphetamine with purpose to deliver, possessing drug paraphernalia, maintaining a premises for drug activity, and possessing hydrocodone. These and other charges were filed against her after police executed a search warrant at a Fort Smith residence where a confidential informant had bought methamphetamine in controlled buys that took place on February 12 and 18, 2015. On appeal, Szczerba challenges the sufficiency of the evidence to support her convictions. She argues that there was insufficient evidence showing that she was in a position to exercise dominion and control over the premises, the residence, and the drugs and paraphernalia that were found in the residence. We affirm.

         Before we address the merits of Szczerba's appeal, we discuss a scrivener's error in the sentencing order on one of the charges. We note that the jury verdict forms reflect a finding of "guilty of possessing drug paraphernalia" and a sentence recommendation of five years' imprisonment for the conviction, and that the court pronounced in open court, "On the charge of possession of the drug paraphernalia, you are hereby sentenced to a term of five years in the Department of Correction." However, the sentencing order incongruously shows that Szczerba was "acquitted" of the offense and was sentenced to 60 months' imprisonment for it. We remand to the circuit court for correction of the sentencing order, which should reflect a conviction for possession of drug paraphernalia.

         We now address Szczerba's challenge to the sufficiency of the evidence. The jury found her not guilty of delivering methamphetamine on February 12, 2016, and not guilty of possessing oxycodone on February 18, 2016, but guilty of the other February 18 offenses-possessing methamphetamine with the purpose to deliver, possessing drug paraphernalia, maintaining a premises for drug activity, possessing hydrocodone, and delivery of methamphetamine. She was sentenced to concurrent prison terms totaling 72 months' imprisonment in the Arkansas Department of Correction. She appeals all convictions except the delivery of methamphetamine on February 18, which she asserts she delivered on her daughter's behalf.

         Szczerba moved for a directed verdict at the conclusion of the State's case. She made the following argument to the circuit court:

On the . . . deliveries, . . . the 18th, there's been nothing presented to show that my client knew that this was methamphetamine she was handling or knew that it was a controlled substance. The testimony was that they were after her daughter [Jessica Campbell] and so nothing to show that she was aware of that and the State is asking the jury and would ask you to speculate as to that.
As to the maintaining drug premises, there's been no testimony presented to show that my client is in a position to exercise dominion and control over the residence. I asked who, who's got the fingers on it. The utilities are in Jessica Campbell's name. They couldn't tell us who rented the apartment. The fact that Laura Bair [of the Sebastian County Detention Center] . . . said, she told me at the jail when I booked her in that she lived here, that still doesn't show that she was in a position to exercise dominion and control. The State is asking you to speculate.
We have plenty of case law out there that there's got to be more than that in a joint occupancy case. I am thinking specifically about the Ravellette case and the Osborne case from back in the 70's. There are cases which talk about you've got to have more than joint occupancy to show that she was in a position to exercise dominion and control. I asked whose bedroom is this file cabinet in where they found a lot of the stuff. They can't tell me.
And, then they say, well, we found a key in a purse. There's no telling what that means. That doesn't mean that she had used that key or even knew what that key was for. They are asking you to speculate.
I would say that when you look at all the drugs found in the house and everything else like that and Detective Baker talked about he had to get in there and look up high and where the stuff was stuck up above the light, out of normal sight, again, ...

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