Ellis v. State , 2014 Ark. App. 56 ( 2014 )

Cite as 2014 Ark. App. 56
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-400
Opinion Delivered January 22, 2014
MICHAEL ELLIS APPEAL FROM THE DREW
APPELLANT COUNTY CIRCUIT COURT
[NO. CF-2009-0161]
V.
HONORABLE ROBERT BYNUM
GIBSON, JR., JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
DAVID M. GLOVER, Judge
Michael Ellis pleaded guilty to the offense of possession of marijuana with intent to
deliver. He was placed on probation for a period of thirty-six months, which was scheduled
to end in May 2013. He was arrested on new charges on October 12, 2012. On November
9, 2012, the State filed a petition to revoke his probation, alleging that he had violated the
conditions that 1) forbade him from committing any offense punishable by confinement in
jail or prison and 2) forbade him from purchasing, owning, controlling, or possessing any
deadly weapons or firearms. Following a hearing on the petition, the trial court revoked
Michael’s probation, concluding that he had violated the conditions of his probation. He was
sentenced to eight years in the Arkansas Department of Correction. As his sole point of
appeal, Michael contends that the trial court clearly erred in finding that he violated the
conditions of his probation. We disagree and affirm.
Cite as 2014 Ark. App. 56
Background
At the revocation hearing, John Hughes testified that he was employed by the City of
Pine Bluff as part of the Tri-County Drug Task Force. He explained that on October 12,
2012, the DEA and United States Postal Inspection asked for task-force assistance in the
controlled delivery of a package that had been determined to be suspicious. The package was
addressed to 704 Barrow Drive, which was the address Michael had given his probation
officer as his place of residence.
Hughes explained that during the search of the residence that eventually ensued, the
task force found in a bedroom a large, clear container that contained what was believed to be
marijuana in plain view on a dresser; one and one-half tablets of what was believed to be
Xanax; some suspected K-2 synthetic marijuana; 600 pink-colored tablets located in a “false
can” that they initially thought was ecstasy, but that turned out to be Tylenol and caffeine;
two firearms; several bags of marijuana inside another false container; a bag of what appeared
to be methamphetamine in a different part of the residence; $1500 that Michael attempted to
hand to his girlfriend, Gabriella; $720 in a wallet in the same container as the suspected
methamphetamine; and $1980 in a backpack in the bottom of a closet.
Hughes testified that the southeast bedroom was the one he believed to be Michael’s
bedroom; that his cell phone was in that room, along with his high-school diploma, mail
addressed to him in the dresser drawers, and men’s clothing. He explained that Michael’s
girlfriend, Gabriella, was present at the residence that day; that the .40 caliber Ruger was
found between the mattress and box springs in the described bedroom; that the Ruger
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had nine rounds in its magazine; and that a shotgun was also found in an enclosed
carport in a storage room at the back. He said that the crime lab confirmed the suspected
methamphetamine as methamphetamine; a substance that field-tested as heroin turned out to
be a synthetic form of marijuana.
Hughes acknowledged that when opened, the “suspicious” package delivered to
Michael’s address contained Damiana, which he explained is “completely legal by itself” but
is also the preferred main component in making synthetic marijuana. He said Michael did not
try to fight the officers; they did not find a weapon on him; the bedroom containing
Michael’s belongings was on the front side of the house; he would not describe the room
located across the hall from the bedroom as a bedroom; Gabriella said she was Michael’s
girlfriend; her name was above the bed in the bedroom, along with her purse and I.D., but
Michael was adamant she did not live there; and there was no evidence of anyone else living
there. Hughes acknowledged that he did not fingerprint or DNA test the Ruger.
Brooke Norsworthy, Michael’s probation officer, also confirmed that 704 Barrow
Drive was the address she had in her records for Michael and that he had never told her
anyone else was living with him at that address. She testified that following his arrest, he
admitted to her that he was aware there were firearms in the house, but that he did not think
it was an issue because they belonged to his brother.
Michael Ellis testified that he completed drug court with no sanctions and that it was
his understanding that when he completed drug court he would be off probation; that that
was the plea agreement he made in Monticello. He testified that on October 12, 2012, he
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had ordered some Damiana Leaf “off e-Bay” for his grandmother; that she liked to make
tea with it. He said the “bomb dog sniffed on that package,” and they needed to find out if
it was a bomb; so, he opened the package for them and they put him in handcuffs. Michael
said he gave them permission to search the house because he did not think there was anything
in there. He said that he “never touched no drugs, never seen no guns”; he did not know
any guns or drugs were in the residence. He testified he slept on the couch by the front door
and was not in any of the bedrooms. He said he moved in with his brother and was using a
couple of dresser drawers that might have contained some of his information. Michael stated
that his brother, Frederick Ellis, was evicted after the incident happened, but that before then,
he lived in the house full time. He said that he did not test positive for any illegal substances.
In response to a question by the trial court, it was confirmed that his brother was not available
to testify and that he had not been subpoenaed.
On cross-examination, Michael stated that he was not sanctioned for drug tests, but
acknowledged that he was sanctioned for failure to report to two required groups, for failure
to report for a mandatory probation meeting, and for failure to report for an AAM
conference. He stated that he had paid all of his probation fees. Michael said that the
bedroom where the .40 caliber weapon was found was his brother’s bedroom; that he,
Michael, did not have a bed because he had just moved in recently; that he had not been there
more than three or four months; and that the money found was his brother’s and his brother
had given it to him to pay bills.
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On re-direct, Michael stated that Gabriella was his brother’s girlfriend; he never went
into their bedroom; she was not living at that house; and he had a violation for testing positive
for benzodiazepine, which he claimed was attributable to his prescription for Zoloft.
At the conclusion of the hearing, the trial court explained that the State had proved
by “considerably more than a preponderance of the evidence” Michael’s violation of his
probation conditions. The trial court summarized the evidence supporting that conclusion
and then stated its findings that Michael was in possession of marijuana and methamphetamine
on October 12; that he was also in possession of a loaded pistol; and that the violations
occurred during the term of his probation. The trial court revoked Michael’s probation and
sentenced him to a term of eight years.
Discussion
Michael contends that the trial court’s finding that he violated the terms and conditions
of his probation was clearly erroneous because the State failed to prove anything beyond the
fact that he was found to be present in a shared residence where certain illegal items were also
found; that none of the items were found on his person; that his fingerprints and/or DNA
were not found on them or even tested; that none of the found items could be said to have
been found in a room, closet, or other place under his exclusive control; that no witnesses
connected him to the found items; that no special markings or indicia of ownership
established that he was the owner or possessor of them; that he did not test positive for
marijuana or methamphetamine; and that he provided a reasonable excuse for having $1600
in his possession.
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The State has the burden of proving by a preponderance of the evidence the violation
of a condition of probation. Haley v. State, 96 Ark. App. 256, 240 S.W.3d 615 (2006).
Evidence that is not sufficient to support a criminal conviction may be sufficient to support
a revocation. Id. Appellate courts defer to the trial court’s superior position to resolve matters
of credibility and the weight to be given to testimony. Id.
When contraband is found in a place that is immediately and exclusively accessible to
the defendant and subject to his control, constructive possession may be implied. Mayo v.
State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). In cases where there is joint occupancy
of the premises where contraband is seized, however, some additional factor must be
demonstrated to link the accused to the contraband. Young v. State, 77 Ark. App. 245, 72
S.W.3d 895 (2002). The State must prove that the person charged knew that the possessed
object was contraband and that he/she exercised care, control, and management over the
contraband. Id. The necessary knowledge and control can be inferred from the surrounding
circumstances, such as proximity of the contraband to the accused, the fact that it is in plain
view, and ownership of the property where found.
Here, it is not at all clear that we are even dealing with joint occupancy. Michael
denied that Gabriella lived in the house, and, although he claimed his brother lived there,
there was no evidence to support that claim. Moreover, we are dealing with a revocation,
not a criminal conviction; consequently, the burden of proof for the State was by a
preponderance of the evidence, not beyond a reasonable doubt. Contraband and the firearm
were found in a bedroom that had Michael’s mail, cell phone, and high-school diploma in
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it—even though Michael denied ever entering the bedroom. Although Gabriella’s name was
above the bed, Michael was adamant that she did not live there, and he did not claim that the
items were hers. Instead, he said they belonged to his brother. However, his brother was not
present to testify, and, except for Michael’s testimony, there was no evidence that his brother
lived there. Moreover, Michael acknowledged that his brother was not present to testify and
had not even been subpoenaed to do so. Michael’s probation officer testified that he told her
after the arrest that he was aware of the presence of the firearms in the house but that he did
not consider it a violation because the guns belonged to his brother. She also testified that,
prior to Michael’s arrest, she had never even heard of such a brother, much less that he lived
at that address with Michael. Michael offered an explanation for the large amounts of cash
that were found, but, as with his other claims, matters of credibility are for the trial court,
and it clearly did not credit Michael’s version of events. We find no clear error in the trial
court’s findings that, while on probation, Michael was in possession of marijuana and
methamphetamine and that he was also in possession of a loaded firearm—all of which
violated the terms and conditions of his probation.
Affirmed.
HARRISON and WYNNE, JJ., agree.
Kearney Law Office, by: Jack R. Kearney, for appellant.
Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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