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
Dunagin, for appellant.
Rutledge, Att'y Gen., by: Ashley Priest, Ass't
Att'y Gen., for appellee.
W. GRUBER, Chief Judge
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.
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
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.
moved for a directed verdict at the conclusion of the
State's case. She made the following argument to the
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, ...