FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-14-694]
HONORABLE MARCIA R. HEARNSBERGER, JUDGE
J. Richards, for appellant.
Rutledge, Att'y Gen., by: Jake H. Jones, Ass't
Att'y Gen., for appellee.
F. VIRDEN, Judge
Robert Thomas Dark was convicted by a Garland County jury of
possession of a controlled substance and sentenced as a
habitual offender to fifteen years' imprisonment and
ordered to pay a $10, 000 fine. He raises four points on appeal:
(1) the State failed to prove that he possessed a
"useable" amount of a controlled substance, (2) the
trial court abused its discretion using its local rule to cut
off plea negotiations, (3) the trial court erred in denying
his motion for a continuance and "in coercing him to
accept appointed counsel, " and (4) the trial court
erred by failing to order a fitness-to-proceed examination.
Trial Testimony - December 7, 2015
Brent Scrimshire with the Hot Springs Police Department
testified that he assisted on a stolen-vehicle report and
identified Dark as a passenger in that vehicle. An ACIC
(Arkansas Crime Information Center) check revealed that Dark
had a warrant. Officer Scrimshire patted him down for weapons
and found none. The officer then asked Dark whether he had
anything else on him, and Dark said that he had a small
baggie in his pocket. The baggie contained a crystal-like
substance, which field tested positive for methamphetamine.
Dawson, a drug chemist at the Arkansas State Crime Lab,
testified that the test sample's total net weight was
.3541 grams, and he confirmed that it was methamphetamine and
Sufficiency of the Evidence
Code Annotated section 5-64-419(a) (Repl. 2016) provides
that, except as provided by this chapter, it is unlawful for
a person to possess a controlled substance. A person who
violates this section with respect to a Schedule I or
Schedule II controlled substance that is methamphetamine or
cocaine with an aggregate weight, including an adulterant or
diluent, of less than two grams upon conviction is guilty of
a Class D felony. Ark. Code Ann. § 5-64-419(b)(1)(A).
argues that, because no test was performed to determine what
percentage of the sample weighing .3541 grams was
methamphetamine, as opposed to the cutting agent, the State
failed to prove that he possessed a useable amount of
methamphetamine. Dark relies on Harbison v. State,
302 Ark. 315, 790 S.W.2d 146 (1990), in which our supreme
court reversed the appellant's possession-of-cocaine
conviction because a bottle found in his possession contained
"less than a useable amount of cocaine."
Rule of Criminal Procedure 33.1(a) provides that a motion for
directed verdict in a jury trial must be made at the close of
the State's evidence and at the close of all the
evidence, and it must specify the respect in which the
evidence is deficient. Campbell v. State, 2017
Ark.App. 59, 512 S.W.3d 663. After the State rested in this
case, the trial court asked defense counsel whether he had
any motions to make and was told, "No, I don't
believe the record supports any motions for directed verdict
or otherwise." Because Dark made no directed-verdict
motion below, his challenge to the sufficiency of the
evidence is not preserved for review. Swanigan v.
State, 2016 Ark.App. 15.
the State offered Dark three years in exchange for his guilty
plea. He rejected that offer. Later, the State offered Dark
ten years, but he rejected that offer as well. At a pretrial
hearing on November 18, 2015, the trial court said,
"There will be no other plea offers after today."
Dark said that he wished to plead guilty and completed the
necessary paperwork; however, Dark ultimately said that he
would plead not guilty.
December 7, 2015, the day of trial, Dark asked the trial
court in chambers whether DCC (Department of Community
Correction) was "off the table." Defense counsel
referred to the judge's "policies" and how they
were to be followed regarding the "cut-off point"
with plea negotiations. Dark explained that he had gotten
"shaken" and "rattled" and, "out of
[his] panic, " had said, "Not guilty" at the
pretrial hearing on November 18.
argues on appeal that the trial court's "local
rule" regarding plea negotiations is the type of rule
abolished by the Arkansas Supreme Court's per curiam
decision dated December 21, 1987. In re Changes to the
Ark. Rules of Civil Procedure, 294 Ark. 664, 742 S.W.2d
551 (1987) (per curiam). Although Dark claims that he
suffered prejudice by the trial court's "refusal to
allow a plea bargain, " the facts do not support that
this was a local rule, as opposed to the trial court's
simple exercise of control over its courtroom and docket, the
judge considered paperwork handed to her by defense counsel
on the day of trial indicating that Dark wished to admit to
the charge and to his habitual-offender status. After some
colloquy, the judge said, "I've asked you this
question, now this is the third time I've asked you the
question and I won't ask it again. Do you wish to plead
guilty?" Dark responded, "No, I don't."
Dark cannot demonstrate prejudice because the trial court
considered plea negotiations right up to the start of the
trial, but Dark refused the last-minute plea offer and chose
to go to trial. We find no reversible error.
Continuance and Coercion
refusal to grant a continuance in order for the defendant to
change attorneys rests within the sound discretion of the
trial court. Alexander v. State, 55 Ark.App. 148,
934 S.W.2d 927 (1996). Moreover, the right to counsel of
one's choice is not absolute; if change of counsel would
require postponement of trial because of inadequate time for
a new attorney to properly prepare a defendant's case,
the court may consider, in granting or denying the change,
such factors as the reasons for the change, whether other
counsel has already been identified, whether the defendant
acted diligently in seeking the change, and whether the
denial is likely to result in any prejudice to the defendant.
Id. On appeal, we review the denial of a motion for
continuance under an abuse-of-discretion standard. Creed
v. State, 372 Ark. 221, 273 S.W.3d 494 (2008). An
appellant must demonstrate not only that the trial court
abused its discretion in deciding the motion but also that
the ruling resulted in prejudice amounting to a denial of
argues that the trial court summarily denied his motion for a
continuance without any consideration of the relevant
factors. He contends that he was thus given no opportunity to
articulate the reasons a continuance was warranted. Dark
further argues that, despite his insistence on representing
himself, the trial court "coerced [him] into continued
representation by his trial counsel."
morning of trial, defense counsel informed the trial court
that Dark wished to discharge him and represent himself. Dark
said, "I would beg for the Court's mercy on a
continuance since I am-" The trial judge said,
"That's denied. We're not going to continue this
Court: Okay. So we're going to go out there. Mr. Fraiser
is going to represent you. You're going to talk to him
and tell him what you want, what you want the jury to know,
what you want the jury to see, and we're ...