APPEAL
FROM THE LOGAN COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO.
42PCR-16-38] HONORABLE JERRY DON RAMEY, JUDGE
Robert
N. Jeffrey, Attorney at Law, by: Robert N. Jeffrey, for
appellant.
KENNETH S. HIXSON, Judge
Appellant
Dustin Kampmann pleaded guilty to possession of a controlled
substance with intent to deliver, and on December 15, 2016,
the trial court entered a sentencing order placing Kampmann
on six years' probation. Kampmann's written
conditions of probation prohibited him from committing a
criminal offense punishable by imprisonment and from using
any controlled substance.
On
December 1, 2017, the State filed a motion to revoke
Kampmann's probation, alleging that he had violated his
conditions by possessing drug paraphernalia on October 18,
2017, and by admitting to using marijuana and Xanax on
October 25, 2017. After a revocation hearing, the trial court
found that Kampmann violated his conditions by possessing
drug paraphernalia. On June 20, 2018, the trial court entered
a sentencing order revoking Kampmann's probation and
sentencing him to four years in prison. Kampmann now appeals
from the revocation of his probation.
Pursuant
to Anders v. California, 386 U.S. 738 (1967), and
Arkansas Supreme Court Rule 4-3(k)(1), Kampmann's counsel
has filed a no-merit brief wherein counsel asserts that this
appeal is without merit. Kampmann's counsel's
abstract, brief, and addendum contain all the adverse rulings
and an explanation as to why each ruling is not a meritorious
ground for reversal. Kampmann's counsel has also filed a
motion to be relieved. Kampmann was provided a copy of his
counsel's brief and notified of his right to file a list
of pro se points for reversal, but he has filed no points.
Having reviewed the record before us, we conclude that this
appeal is without merit and, we affirm the revocation.
Kampmann's
probation officer, Paul Clifford, was the only witness to
testify at the revocation hearing. Mr. Clifford testified
that on October 18, 2017, he and other officers conducted a
random search of Kampmann's residence where he lived with
his grandmother. When Mr. Clifford arrived at the residence
he made contact with Kampmann's grandmother, who was also
on probation. According to Mr. Clifford, he observed Kampmann
exit a back bedroom at the end of the hallway.
When
Kampmann came out of the bedroom, Mr. Clifford immediately
detected an odor of marijuana. Mr. Clifford asked Kampmann
which room was his, and Kampmann stated that his bedroom was
the room he had just exited. Mr. Clifford searched
Kampmann's bedroom and found a glass smoking device,
which in his experience is commonly used for inhaling
methamphetamine. The officers also found a cut straw in
Kampmann's bedroom. These items were sent to the Arkansas
State Crime Lab, and the straw tested positive for
methamphetamine residue. Mr. Clifford stated that there were
no other persons in Kampmann's bedroom when he came out.
Kampmann told Mr. Clifford that some friends had been over
and must have left the items in his room. On
cross-examination, Mr. Clifford testified that during an
October 25, 2017 probation visit, Kampmann admitting to using
marijuana and Xanax. At the conclusion of the hearing, the
trial court found that Kampmann violated his conditions of
probation by possessing the smoking device and the straw.
In this
no-merit appeal, Kampmann's counsel accurately states
that the only adverse ruling below was the trial court's
decision to revoke Kampmann's probation. A trial court
may revoke a defendant's probation if it finds by a
preponderance of the evidence that the defendant has violated
a condition of the probation. Atteberry v.
State,
2016 Ark.App. 331. The State bears the burden of proof, but
it need only prove that the defendant committed one violation
of the conditions. Lewis v. State,
2015 Ark.App. 222. Evidence that is insufficient to support a
criminal conviction may be sufficient to support a revocation
of probation. Richard v. State,
2018 Ark.App. 362, 553 S.W.3d 783. On appeal, the trial
court's decision will not be reversed unless it is
clearly against the preponderance of the evidence. Mosley
v. State, 2016 Ark.App. 353, 499 S.W.3d 226.
In
Kampmann's counsel's brief, he correctly asserts that
there can be no meritorious challenge to the sufficiency of
the evidence supporting the revocation. The trial court found
that Kampmann possessed drug paraphernalia in violation of
his conditions of probation. Arkansas Code Annotated section
5-64-443(a) (Supp. 2017) makes it illegal for a person to
possess drug paraphernalia with the purpose to use the drug
paraphernalia to ingest, inhale, or otherwise introduce into
the human body a controlled substance. The definition of
"drug paraphernalia" includes an object intended
for use in ingesting, inhaling, or otherwise introducing a
controlled substance into the human body. Ark. Code Ann.
§ 5-64-401(12)(B)(xii) (Repl. 2016).
During
the search of Kampmann's residence, officers found a
glass smoking device and a cut straw. Mr. Clifford testified
that in his experience the glass smoking device was commonly
used to inhale methamphetamine. The cut straw contained
methamphetamine residue. The State established that these
were items of drug paraphernalia intended for use to ingest a
controlled substance.
Although
Kampmann was not in physical possession of the drug
paraphernalia, the State does not have to prove that the
defendant physically held the contraband. Conley v.
State, 2014 Ark. 172, 433 S.W.3d 234. Constructive
possession, which is the control or right to control the
contraband, is sufficient. Id. Constructive
possession can be implied when the contraband is found in a
place immediately and exclusively accessible to the defendant
and subject to his control. Id. Here, the officers
found the drug paraphernalia in Kampmann's bedroom, which
was solely occupied by him when the officers entered the
residence. This was sufficient to establish that Kampmann
controlled the contraband. On this record, we conclude that
the trial court did not clearly err in revoking
Kampmann's probation and that there could be no
meritorious argument to the contrary on appeal.
Based
on our review of the record and the brief presented, we
conclude that there has been compliance with Rule 4-3(k)(1)
and that this appeal is without merit. Consequently,
Kampmann's counsel's ...