FROM THE COLUMBIA COUNT YCIRCUIT COURT [NO. 14CR-16-35]
HONORABLE DAVID W. TALLEY, JR., JUDGE
Rolfe IV, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, JUDGE
November 10 and 24, 2015, law-enforcement officers worked
with two confidential informants to purchase methamphetamine
from appellant Kwasi McKinney at his residence located at 202
Mulberry in McNeil, Arkansas. Thereafter, on January 28,
2016, pursuant to a search warrant, law-enforcement officers
searched McKinney's home and found methamphetamine, drug
paraphernalia, and a firearm. On November 29, 2016, a
Columbia County jury found McKinney guilty of delivery of
methamphetamine, possession of methamphetamine, maintaining a
drug premises, simultaneous possession of drugs and a
firearm, possession of methamphetamine with intent to
deliver, and possession of a firearm by certain
persons. He was sentenced to serve twenty-eight
years',  six years', eighteen years', sixty
years', thirty years', and twelve years'
imprisonment, respectively, to be run consecutively, for a
total of 154 years. On appeal, McKinney contends that (1)
there was insufficient evidence to support the convictions
for simultaneous possession of drugs and a firearm and for
possession of a firearm; (2) the circuit court abused its
discretion in ordering consecutive sentences; and (3) the
circuit court abused its discretion in denying his request
for a pretrial hearing. We affirm in part and reverse and
remand in part.
argues that the evidence was insufficient to support his
convictions for simultaneous possession of drugs and a
firearm and for possession of a firearm. More
specifically, he argues that the proof failed to establish
that he constructively possessed these items. He cites the
testimony of Officer Jonathan Chambers of the Thirteenth
Judicial Drug Task Force who stated that there were two other
men, Sharde Mullins and Jaylon McKamie, in the home at the
time of the search. Chambers also testified that these two
men could have placed the drugs and firearm in the closet,
but they were not investigated, and the firearm and drugs
were not submitted to the crime lab for latent-print testing.
Based on this evidence, McKinney argues, "It is not
beyond the realm of possibility that someone else planted
[the firearm and drugs] there and left [McKinney to] take the
fall and face the consequences."
order to preserve for appeal the issue of the sufficiency of
the evidence, a defendant must first raise the issue to the
circuit court as provided in Arkansas Rule of Criminal
Procedure 33.1. Rule 33.1(a) provides that, in a jury trial,
a defendant must challenge sufficiency by a specific motion
for directed verdict at the close of the evidence offered by
the prosecution and at the close of all the evidence. Ark. R.
Crim. P. 33.1(a) (2017). A defendant's failure to raise
the issue at the times and in the manner required by the rule
will constitute a waiver of any question pertaining to the
sufficiency of the evidence to support the judgment. Ark. R.
Crim. P. 33.1(c).
motion for directed verdict is inadequate if it states
"that the evidence is insufficient [and] does not
preserve for appeal issues relating to a specific deficiency
such as insufficient proof on the elements of the
offense." Gillard v. State, 372 Ark. 98, 101,
270 S.W.3d 836, 838 (2008) (citing Ark. R. Crim. P. 33.1(c);
Smith v. State, 367 Ark. 274, 239 S.W.3d 494
(2006)). The motion must specifically advise the circuit
court as to how the evidence was deficient. Id., 270
S.W.3d at 838. The reason underlying this requirement that
specific grounds be stated and that the absent proof be
pinpointed is that it allows the circuit court the option of
either granting the motion or, if justice requires, allowing
the State to reopen its case to supply the missing proof.
Id., 270 S.W.3d at 838-39. We will not address the
merits of an appellant's insufficiency argument where the
directed-verdict motion is not specific. Id., 270
S.W.3d at 839.
present case, McKinney made the following motions for
I don't believe that there was sufficient evidence that
demonstrated or proved that [McKinney] in any way possessed
specifically a firearm in this case, therefore the jury could
not declare that he would be guilty of simultaneous
possession of drugs and firearms
. . . . .
I don't believe that the State demonstrated or showed or
met their burden in regard to the gun and that [McKinney] in
any way possessed a firearm. Therefore, a jury could not
conclude that he could be guilty of possession of a firearm.
motions for directed verdict merely stated that he did not
possess the firearm. He did not argue below that the State
failed to prove that he constructively possessed the firearm.
Under these circumstances, we hold that McKinney's motion
was too general to preserve the constructive-possession
argument he has raised on appeal. Conley v. State,
2011 Ark.App. 597, at 6-7, 385 S.W.3d 875, 878-79 (holding
that the appellant failed to preserve his sufficiency
argument where he argued in his motions for directed verdict
that the State failed to prove possession of drugs and drug
paraphernalia but argued on appeal that the State failed to
establish constructive possession). Accordingly, we affirm on
the issue of the sufficiency of the evidence supporting
McKinney's convictions for simultaneous possession of
drugs and a firearm and possession of a firearm by certain
also argues on appeal that the circuit court abused its
discretion in ordering consecutive sentences. After the jury
returned its guilty verdicts and sentencing recommendation,
the State requested that the circuit court sentence McKinney
to twenty-four years of suspended imposition of sentence
(SIS) for the possession-of-methamphetamine and
delivery-of-methamphetamine convictions and to order that the
sentences for the remaining convictions (possession of a
firearm by certain persons, maintaining a drug premises,
simultaneous possession of drugs and a firearm, and the
proximity enhancement), which totaled 130 years, be run
consecutively. McKinney's counsel did not respond or
object. Thereafter, the circuit court found that it lacked
authority to order SIS where the defendant had been
determined to be a habitual offender, and it concluded that
it would follow the jury's sentencing recommendations.
The court then ...