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Small v. State

Court of Appeals of Arkansas, Division II, III

February 7, 2018

JAKE EARL SMALL, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66FCR-16-192] HONORABLE JAMES O. COX, JUDGE

          Ryan C. Allen, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

          RITA W. GRUBER, Chief Judge.

         Jake Earl Small was charged in the Sebastian County Circuit Court with furnishing a prohibited article, a Class B felony; possessing hydrocodone, a Class C felony; and two counts of possession of drug paraphernalia, Class D felonies. Some of the contraband was found in the car he was driving when Fort Smith police officer Eric Hoegh stopped it for lack of insurance. Prohibited items were also found on Small's person when he was booked and searched at the Sebastian County jail.

         Small filed pretrial motions to suppress evidence from his car, which included seven hydrocodone pills in a small baggie, and his statement to Officer Hoegh that the pills were from a friend and that Small took them for his arthritis. After conducting a suppression hearing, the trial court denied the motions by a written order on December 5, 2016.

         On December 6, 2016, the State filed an amended criminal information that added the offense "Proximity to certain facilities, " based on an allegation that Small possessed a controlled substance, Class C felony or greater, within 1000 feet of the real property of a church. On December 15, 2016, Small filed a pretrial motion to dismiss the "count" of enhanced sentencing or, alternatively, to continue the trial-based in part on a lack of allegation regarding his mental state. The motion was argued on the morning of trial, December 19, 2016, and was denied.

         Claire Desrochers, the forensic chemist at the Arkansas State Crime Laboratory who tested seven pills that were found during the search of Small's vehicle, testified at trial that the pills contained 3.6763 grams of hydrocodone and that hydrocodone is a Schedule II drug. Officer Greg Napier of the Ft. Smith Police Department's narcotics unit gave the following testimony. He testified that he reviewed the videotape from the traffic stop, learned its location, and flew his drone to take the photograph introduced as State's exhibit no. 7. He walked along the side of the road past the church property line and up into the church driveway, measuring a total distance of 846 feet. He also measured the straight-line distance as 738.6 feet from the side of the church. The jury found Small guilty of all charges.

         Small raises four points on appeal. First, he contends that the trial court erred in denying his motions to suppress. Second and third, he contends that the trial court erred in denying his motion to dismiss the sentencing enhancement of Arkansas Code Annotated section 5-64-411 for possessing the hydrocodone near a church and erred in refusing to give his proffered jury instructions regarding the statute. Fourth, he contends that there was insufficient evidence to support the conviction of violating Arkansas Code Annotated section 5-64-411. We affirm the trial court's decision to deny his motions to suppress and reverse the trial court's conviction for violating Arkansas Code Annotated section 5-64-411; the other two points become moot.

         I. Whether there Was Sufficient Evidence to Support a Violation of Ark. Code Ann. § 5-64-411[1]

Due to double-jeopardy considerations, we consider a challenge to the sufficiency of the evidence before we address alleged trial errors. Coger v. State, 2017 Ark.App. 466, at 2, 529 S.W.3d 640. In assessing the sufficiency of the evidence supporting criminal convictions, we consider only the proof that supports the verdict. Id. We view that evidence and all reasonable inferences deducible therefrom in the light most favorable to the State, and we will affirm if the finding of guilt is supported by substantial evidence. Id. Evidence is substantial if it is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without requiring resort to speculation or conjecture. Id.

         A person is subject to enhanced sentencing of an additional 10-year term of imprisonment if the person "[p]ossesses a controlled substance in violation of § 5-64-419 and the offense is a Class C felony or greater" and "[t]he offense is committed on or within" 1000 feet of the real property of a church. Ark. Code Ann. § 5-64-411(a)(1) & (2)(H) (Repl. 2016). The possession of two grams or more of a Schedule II controlled substance is a Class C felony. See Ark. Code Ann. § 5-64-419. Small repeats on appeal the argument he made in his motion for a directed verdict-that this statute requires proof of a culpable mental state, and the State failed to present evidence that he knowingly or purposely possessed drugs within 1000 feet of a church.

         Small also argues that our legislature "never intended that this code provision be applicable to traffic stop cases since the police could manipulate the situation by initiating the traffic stop near one of the listed establishments." We do not address his latter argument because he did not make it to the trial court. A party is bound by the nature and scope of the objections and arguments made at trial and may not enlarge or change those grounds on appeal. Ronk v. State, 2016 Ark.App. 126, at 8. We now address the sufficiency of the evidence pursuant to Small's directed-verdict motion.

         Small notes the provision of Arkansas Code Annotated section 5-2-203(b) (Repl. 2013) that, with certain exceptions, "if the statute defining an offense does not prescribe a culpable mental state, a culpable mental state is nonetheless required and is established only if a person acts purposely, knowingly, or recklessly." (Emphasis added.) He argues that the State failed to address his culpable mental state, a key element of the crime, and that there was no evidence that he was aware of the church's location. He points to State's exhibit no. 7, an aerial photograph taken by drone, showing Trinity Baptist Church "down the street and around the corner of where [he] was stopped." He concludes that because the State did not present evidence that he acted purposely or knowingly, it failed to meet its burden of proof. Small notes the holding of Leeka v. State, 2015 Ark. 183, 461 S.W.3d 331, that because our DWI statute did not contain an express requirement of a culpable mental state, one nonetheless was imputed to the offense through Ark. Code Ann. § 5-2-203. Leeka, 2015 Ark. 183, at 6-8, 461 S.W.3d at 335-36.[2]

         The State responds that section 5-2-203 is inapplicable because section 5-64-411, unlike the DWI Act at issue in Leeka, is a sentencing enhancement rather than a statute defining an offense. The State relies on Baumgarten v. State, a case concerning when the State may amend a charge:

It is well settled that an information may be amended up to a point after a jury has been sworn if it does not change the nature of a crime, or create unfair surprise. We have held that an amendment which adds an allegation of habitual offender does not change the nature or degree of the crime. Such an amendment simply authorizes a more severe punishment, not by creating an additional offense or an independent crime, but by affording evidence to increase the final punishment in the event the defendant is convicted.

316 Ark. 373, 379, 872 S.W.2d 380, 384 (1994) (internal citations omitted).

         We find a clear distinction between Baumgarten and the present case. Adding a habitual-offender status does not change the elements or nature of the charges or the proscribed conduct. Arkansas Code Annotated section 5-64-411, however, adds an enhanced sentence for a person found guilty of certain offenses, including that for which appellant was convicted, only if an additional requirement is met. That additional requirement is the location where the act is committed. Accordingly, we hold that the circuit court erred in concluding that section 5-64-411 did not require a culpable mental state, and we reverse and remand on this point.

         II. Whether the Trial Court Erred in Denying Small's Motions to Suppress

         Small contends that Officer Hoegh did not have probable cause to initiate the traffic stop of his vehicle. Hoegh testified that he made the stop on the evening of February 12, 2016, when he was on patrol in the city of Fort Smith:

I came behind Mr. Small's vehicle at the railroad tracks. We were stopped there for a brief moment. I ran the defendant's tag. The vehicle insurance came back to be cancelled. Once . . . we started back in motion, I then initiated my blue lights and made a traffic stop on Mr. Small. The traffic stop was about 6:50 p.m. This is a copy of the NCIC return which I got on Mr. Small's vehicle. It shows that the insurance shows cancelled.
I then retrieved his name and date of birth and information. He at the time did not have insurance available. He did not have anything but the policy number. I then returned to my vehicle. I then, just like I do with everyone else, I [ran] his name through the database to get a return on him to know who I'm speaking with. Upon the NCIC return, I got a return and an active warrant out of Little Rock. It was for contempt of court. It also showed that his license was suspended.

         While Hoegh was running the computerized NCIC search in his service vehicle, Small located his insurance papers and gave them to an assisting officer who had arrived at the scene.

         During cross-examination, Hoegh testified that he had never before seen a printout such as State's exhibit no. 1-entitled "Hoegh ACIC Verification"-and that his computer screen "does not have the initial page." He acknowledged that people whom he had stopped for no insurance sometimes did have insurance and that sometimes he had called within working hours to verify insurance information, but he said that he did not call to verify ...


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