Wells v. State

Cite as 2017 Ark. App. 174
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-16-298
WILLIE WELLS Opinion Delivered March 15, 2017
APPELLANT
APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
V. [NO. 18CR-2015-9]
HONORABLE JOHN N.
FOGLEMAN, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
PHILLIP T. WHITEAKER, Judge
Appellant Willie Wells was charged with one count of possession of less than two
grams of cocaine and one count of possession of drug paraphernalia. Prior to trial, Wells filed
motions to suppress both physical evidence seized following his arrest and statements he made
to the arresting officer. The circuit court denied both motions, and the matter proceeded to
a jury trial. A Crittenden County jury convicted Wells of possession of cocaine but acquitted
him of possession of drug paraphernalia. The jury sentenced Wells, as a habitual offender, to
nine years in the Arkansas Department of Correction; it also imposed a $2,500 fine. Wells
filed a timely notice of appeal and now challenges the sufficiency of the evidence supporting
his convictions, the circuit court’s denial of his motions to suppress, and its rejection of his
request for an alternative sentencing instruction. We affirm.
Cite as 2017 Ark. App. 174
I. Sufficiency of the Evidence
We first consider Wells’s challenge to the sufficiency of the evidence supporting his
conviction for possession of less than two grams of cocaine.1 Our test for determining the
sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct
or circumstantial. Jones v. State, 357 Ark. 545, 182 S.W.3d 485 (2004). Evidence is substantial
if it is of sufficient force and character to compel reasonable minds to reach a conclusion and
pass beyond suspicion and conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).
On appeal, we view the evidence in the light most favorable to the State, considering only
that evidence that supports the verdict. Williams v. State, 346 Ark. 304, 57 S.W.3d 706 (2001).
Wells argues that the State failed to prove that he possessed a usable amount of
cocaine.2 Wells was arrested for shoplifting by Patrolman Brandon Clark of the West
Memphis Police Department. During a search of Wells’s person incident to the arrest, Clark
discovered a folded piece of paper containing a white substance in Wells’s pocket.
At trial, the jury heard evidence concerning the white substance found in Wells’s
pocket. Clark testified that when he weighed the white substance on a digital scale at the
police station, it weighed .01 grams. He could not say whether his scale was a certified scale,
1
Although Wells raises his sufficiency challenge as his third argument on appeal,
double-jeopardy considerations require that we address this argument first. Fowler v. State,
2015 Ark. App. 579, 474 S.W.3d 120.
2
Because Wells’s sufficiency challenge is a narrow, legal one, we find it unnecessary
at this point to discuss in depth the background facts of this case. Those facts are more
pertinent with respect to Wells’s arguments about the denial of his motions to suppress, and
they will therefore be set forth in more detail in our discussion of those points on appeal.
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stating that it was “just for estimated weight value for when it gets sent off to the crime lab.”
He then bagged the evidence in a plastic envelope and had it sent to the crime lab.
Nick Dawson, a forensic drug chemist at the Arkansas State Crime Lab, testified that
he received a piece of folded paper containing a white granular substance. His analysis of the
substance was that it was .0577 grams of cocaine. He also testified as to the accuracy of his
scale, saying that he would have calibrated the scale against a known 100-gram weight for
accuracy the morning he weighed the granular substance. Dawson also noted that under his
lab’s guidelines, anything under .01 grams would be considered residue, but anything over
that was a usable amount.
On this evidence, Wells was convicted of violating Arkansas Code Annotated section
5-64-419(a) & (b)(1)(A) (Supp. 2015), which provides that it is unlawful for a person to
possess a controlled substance and that any person who possesses less than two grams (2g) of
cocaine is guilty of a Class D felony. Wells points to the discrepancy between the weight
observed by Clark—.01 grams—and the .0577 grams measured by Dawson, and he asserts that
the State failed to prove that he possessed a usable amount of cocaine. His argument is not
persuasive.
First, we note that there is no provision in our Controlled Substances Act mandating
that one must possess a “usable amount” of a controlled substance to support a conviction for
possession. See Jones, supra. In Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990),
however, the supreme court adopted the usable-amount criteria. The Harbison court
explained:
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The intent of the legislation prohibiting possession of a controlled substance is to
prevent use of and trafficking in those substances. Possession of a trace amount or
residue which cannot be used and which the accused may not even know is on his
person or within his control contributes to neither evil.
302 Ark. at 322, 790 S.W.2d at 151. Based on this usable-amount criteria, we have reversed
a conviction for possession of methamphetamine because the trace amount of residue stuck
to the inside of a plastic bag could not be weighed and thus did not constitute a “usable
amount.” Porter v. State, 99 Ark. App. 137, 139, 257 S.W.3d 919, 920 (2007). We have also
affirmed a conviction for possession of cocaine where both a narcotics officer and a chemist
with the state crime lab testified that, in their opinion, .01 grams of crack cocaine was a
“usable amount.” Terrell v. State, 35 Ark. App. 185, 186, 818 S.W.2d 579, 580 (1991). Here,
at a minimum, Wells possessed .01 grams of cocaine, a usable amount. Id.
Second, Wells’s position is essentially a challenge to purported conflicts in the evidence
or inconsistencies in the testimony. We have long held that any conflicts in the evidence or
inconsistencies in the testimony are for the jury to resolve. See Davis v. State, 2016 Ark. App.
274, 493 S.W.3d 339. Given Clark’s statement that his scale was used to “estimate” the
weight and Dawson’s description of how precisely his scales were calibrated, it was well
within the jury’s province to credit Dawson’s testimony over Clark’s, and according to
Dawson’s testimony, the cocaine found in Wells’s pocket weighed .0577 grams.3 We
3
Wells also argues that the jury found, as evidenced by a note on its verdict form, that
Wells only possessed cocaine in “an amount,” which he asserts means that there was a
question as to the amount of cocaine. This is a misrepresentation of what the jury’s note on
the verdict form stated. The original form stated, “We, the Jury, find beyond a reasonable
doubt that Willie Wells is guilty of possession of less than 2 grams of cocaine.” Someone,
presumably the foreman, inserted a handwritten notation between “possession of” and “less
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therefore hold that there was sufficient evidence that Wells possessed a usable amount of
cocaine and affirm his conviction on this charge.
II. Denial of Wells’s Motions to Suppress Evidence
In what is actually his first point on appeal, Wells argues that his arrest for shoplifting
was invalid, and therefore, the cocaine that was seized from him was the fruit of the poisonous
tree and should have been suppressed. When reviewing a circuit court’s denial of a motion
to suppress evidence, we conduct a de novo review based on the totality of the circumstances,
reviewing findings of historical facts for clear error and determining whether those facts give
rise to reasonable suspicion or probable cause, giving due weight to the inferences drawn by
the circuit court. Bathrick v. State, 2016 Ark. App. 444, at 1–2, 504 S.W.3d 639, 641. We
defer to the circuit court’s superior position in determining the credibility of the witnesses and
resolving any conflicts in the testimony. Id.
Essentially, Wells argues that Patrolman Clark lacked reasonable suspicion to stop or
detain him for shoplifting; therefore, he argues that his arrest was unlawful and the cocaine
found in his pocket should have been suppressed. We must therefore consider the pertinent
rules and statutes that apply in such a situation: Arkansas Rule of Criminal Procedure 3.1
(2016); Arkansas Code Annotated section 5-36-102 (Repl. 2013); and Arkansas Code
Annotated section 5-36-116.
Rule 3.1 provides in pertinent part that a law enforcement officer lawfully present in
than,” so that the form as filled out reads that the jury found Wells “guilty of possession of
cocaine in an amount less than 2 grams . . . .” Thus, we do not believe it can fairly be said that
the jury had a question as to whether the amount of cocaine was less than 2 grams.
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any place may stop and detain any person “who he reasonably suspects is committing, has
committed, or is about to commit . . . a misdemeanor involving . . . appropriation of or
damage to property, if such action is reasonably necessary either to obtain or verify the
identification of the person or to determine the lawfulness of his conduct.” “Reasonable
suspicion” is defined as “a suspicion based on facts or circumstances which of themselves do
not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to
more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary
or purely conjectural suspicion.” Ark. R. Crim. P. 2.1.
Next, the offense of shoplifting is discussed in Arkansas Code Annotated section 5-36-
102(c) as follows:
The knowing concealment, upon an actor’s person or the person of another, of an
unpurchased good or merchandise offered for sale by any store or other business
establishment, gives rise to a presumption that the actor took the good or merchandise
with the purpose of depriving the owner or another person having an interest in the
good or merchandise.
A person engaging in conduct giving rise to a presumption under section 5-36-102(c) “may
be detained in a reasonable manner and for a reasonable length of time by a law enforcement
officer, merchant, or merchant’s employee in order that recovery of a good may be effected.”
Ark. Code Ann. § 5-36-116(a)(1). Moreover, “[u]pon probable cause for believing a suspect
has committed the offense of shoplifting, a law enforcement officer may arrest the person
without a warrant.” Ark. Code Ann. § 5-36-113(d)(1). Subsection (d)(2) states that “[t]he law
enforcement officer, merchant, or merchant’s employee who has observed the person accused
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of committing the offense of shoplifting shall provide a written statement that serves as
probable cause to justify the arrest.”
With these standards and rules in mind, we now turn to a more complete assessment
of the background facts leading to Wells’s arrest. Wells entered a Dollar General store in West
Memphis. Silvia Sims, the store manager, observed Wells—via a store security camera—place
some store merchandise in his pants. Wells left the store and walked to his red Dodge
Durango in the parking lot. Sims watched as Wells was unable to start his truck. She called
the police and reported the incident, the suspect, and a description of the truck and the items
stolen.
While Wells was trying to start the truck, several police officers, including Patrolman
Clark, arrived on the scene. Clark saw the red Dodge Durango and pulled in behind it. When
Clark made contact with the occupant of the car, Wells stepped out of the vehicle and said,
“[M]an, I didn’t steal anything. What do you want with me?” Clark observed the items that
Sims had described as having been stolen inside Wells’s vehicle. Clark advised Wells that he
was being placed under arrest for theft of property and proceeded to search him. During the
search, Clark found a folded-up piece of paper in Wells’s pocket that contained crack cocaine.
At the suppression hearing, Clark clarified that he searched Wells’s person because Clark had
placed him into custody for transport. The stolen items were returned to the Dollar General
store,4 and at some point, Sims filled out an affidavit regarding the shoplifting.
4
Wells subsequently pleaded guilty to the shoplifting charge.
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We find that this sequence of events clearly gives rise to a reasonable suspicion on
which Clark could detain Wells pursuant to Rule 3.1. See, e.g., Nottingham v. State, 29 Ark.
App. 95, 101, 778 S.W.2d 629, 632 (1989) (report by store owner about a possible
intoxicated driver, coupled with police officer’s personal observation of defendant sleeping
behind the wheel of his running car with a beer can between his legs, constituted reasonable
suspicion that defendant had committed the offense of DWI, and detention was therefore a
permissible Rule 3.1 stop).
Moreover, Sims’s observation of Wells stuffing merchandise down his pants gave rise
to the shoplifting presumption found in section 5-36-102(c). Further, Clark testified that he
merely “detained Mr. Wells” until after Sims had completed the signed affidavit and did not
search him until after the affidavit had been procured. For that reason, the detention of Wells
by law enforcement officers was proper under section 5-36-116(a). Although Wells essentially
argues on appeal that the probable cause to arrest him could not have arisen until after Sims
had signed the affidavit pursuant to subsections 5-36-116(d)(1)–(2), we disagree. The statute
says that the person who observed the shoplifting “shall provide a written statement that serves
as probable cause to justify the arrest,” and that “upon probable cause for believing the suspect
has committed the offense of shoplifting, a law enforcement officer may arrest the person
without a warrant.” It does not explicitly require that the affidavit be a temporal prerequisite
to the existence of probable cause.
In summary, here, there was a proper Rule 3.1 stop, coupled with a personal
observation of the stolen items corroborating the shoplifting victim’s report, and a shoplifting
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affidavit that was signed at some point roughly contemporaneously with the stop and
subsequent arrest. In reviewing the denial of a motion to suppress, we consider the totality
of the circumstances. Under that totality, we are unable to say that the circuit court erred in
finding that Wells’s arrest was proper and that the search of his person subsequent to his arrest
was valid.
III. Denial of Motion to Suppress Statements
In his next argument on appeal, Wells contends that any statements he made to Clark
at the time of his detention and arrest should have been suppressed as well. To address this
argument, we consider more of the background facts and circumstances surrounding his
statements.
As stated earlier, Wells was placed under arrest by Clark for theft of property. Clark
conducted a search of Wells’s person incident to arrest and found the folded-up piece of paper
in his pocket. At that time, Wells made the first of two statements. Wells spontaneously stated,
“Clark, please don’t do this, man, stomp it out, get rid of it for me.” In response, Clark read
Wells his Miranda rights, and after Wells acknowledged that he understood his rights, Wells
“advised that it was, in fact, crack cocaine that [Clark] had found on his person.” On appeal,
Wells contends that the circuit court should have suppressed these two statements.
In this regard, Wells raises two arguments. His first brief argument is that because his
arrest was improper, his statements should have been suppressed. As discussed above,
however, his arrest was proper; therefore, there is no merit to this portion of his argument.
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In his second argument, Wells contends that the State had the burden of proving that
his statements were voluntary. At the suppression hearing, the State did not call every officer
who was present when Wells gave his statements to testify, and therefore, Wells argues that
the State failed in its burden of showing that his statements were voluntary.5
We find it unnecessary to consider his argument with respect to his first, spontaneous
statement to Clark, when he asked Clark to “please stomp it out.” As discussed above, Clark
conducted a proper Rule 3.1 stop, and Wells was not in custody at this point. See Fowler v.
State, 2015 Ark. App. 232, at 5, 459 S.W.3d 837, 840 (holding that lawful detention under
Rule 3.1 does not curtail a person’s freedom of action to a degree associated with a formal
arrest such that a Miranda warning is required) (citing Ashley v. State, 2012 Ark. App. 131, 388
S.W.3d 914). Moreover, Wells’s initial statement was spontaneous. A suspect’s spontaneous
statement is admissible, and it is irrelevant whether the statement was made before or after
Miranda warnings because a spontaneous statement is not compelled or the result of coercion
under the Fifth Amendment’s privilege against self-incrimination. Anderson v. State, 2011 Ark.
461, at 15, 385 S.W.3d 214, 224 (citing Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510). Here,
Wells volunteered this statement before Clark had said anything to him, and Wells concedes
on appeal that this statement was spontaneous.
With regard to his second, post-Miranda statement, Wells relies on Smith v. State, 254
Ark. 538, 494 S.W.2d 489 (1973), to argue that the circuit court should have granted his
5
Officer Clark testified at the suppression hearing that he was not the only officer
present when Wells was arrested; he could not recall who was there, but other officers assisted
Sims with her affidavit. Only Clark testified at the hearing, however.
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motion to suppress because the State failed to call all material witnesses to testify at the
suppression hearing. This reliance is unavailing.
In Smith, the supreme court set forth the doctrine of the material-witness rule. The
supreme court noted that the burden of proving the voluntariness of a confession “is one
which the State must assume when the admissibility of a confession is questioned on the
grounds that it was coerced. Only by producing all material witnesses connected with the
controverted confession can the State discharge this burden.” Id. at 541–42, 494 S.W.2d at
491. Accordingly, the Smith court adopted the rule that “whenever the accused offers testimony that
his confession was induced by violence, threats, coercion, or offers of reward then the burden is upon
the State to produce all material witnesses who were connected with the controverted
confession or give adequate explanation for their absence.” Id. at 542, 494 S.W.2d at 491
(emphasis added).
In this case, Wells was afforded his Miranda warnings. Afterward, he admitted that the
substance in his pocket was cocaine. There was never any allegation—and certainly never any
testimony—that this statement was coerced or induced by violence, threats, or offers of
reward. The material-witness rule is therefore simply inapplicable, and we find no merit to
the argument that the circuit court should have granted his suppression motion because the
State failed to call all of the officers who were present at the scene of Wells’s arrest.
IV. Denial of Alternative Sentencing Instruction
In his final point on appeal, Wells argues that the circuit court should have allowed
him to offer a jury instruction on alternative sentencing pursuant to Arkansas Code Annotated
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section 16-97-101 (Repl. 2016). The decision to allow alternative sentencing is reviewed for
an abuse of discretion. Benjamin v. State, 102 Ark. App. 309, 314–15, 285 S.W.3d 264, 268
(2008). This standard of review is a high threshold, and it requires that a trial court act
improvidently, thoughtlessly, or without due consideration. Hoodenpyle v. State, 2013 Ark.
App. 375, at 13, 428 S.W.3d 547, 554.
Section 16-97-101(4) provides that after a defendant has been found guilty by a jury,
the circuit court, “in its discretion, may also instruct the jury that counsel may argue as to
alternative sentences for which the defendant may qualify. The jury, in its discretion, may
make a recommendation as to an alternative sentence. However, this recommendation shall
not be binding on the court.” Our court has further noted that the “permissive tone of the
language in Arkansas Code Annotated section 16-97-101(4) is unmistakable.” Squyres v. State,
2015 Ark. App. 665, at 9, 476 S.W.3d 839, 845 (citing Dale v. State, 55 Ark. App. 184, 935
S.W.2d 274, 278 (1996)).
Wells was charged as a habitual offender pursuant to Arkansas Code Annotated section
5-4-501 (Repl. 2013), having been previously convicted of four felonies. The jury convicted
Wells of a Class D felony. As a result, the jury could impose punishment within a range of
zero years to not more than fifteen years in prison. Ark. Code Ann. § 5-4-501(b)(2)(E) (Supp.
2015).6 Wells’s counsel asked the circuit court if he would be permitted to argue alternative
instructions to the jury, suggesting that his conviction for a Class D felony “carries down to
zero years and it can be considered as an alternative.” The court replied, “Other than that it’s
6
The un-enhanced range of punishment for a Class D felony is not more than six
years. Ark. Code Ann. § 5-4-401(a)(5).
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discretionary with the judge, and if Mr. Wells didn’t have so much experience I might be
inclined in this case to agree with you. The jury, if they want to give him a break, they can
fine him.” After counsel suggested that the jury be allowed to consider an alternative sentence
and use its discretion by denying it, the court answered, “Well, I’m using my discretion not
to instruct them on it.”7
On appeal, Wells assigns error to the circuit court’s refusal to allow the jury to consider
alternative sentencing, insisting that the court abused its discretion. We do not agree. Here,
the circuit court explicitly considered Wells’s criminal history and determined that an
alternative sentence of probation would not be appropriate. This was not an abuse of
discretion, but an exercise of it. Cf. Steele v. State, 2014 Ark. App. 257, at 12, 434 S.W.3d
424, 432 (citing Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002) (noting that
“[m]echanical imposition of the jury’s recommended sentences or an unwavering court policy
refusing to instruct the jury on alternative sentences with respect to certain offenses is not an
exercise of discretion.”).
Affirmed.
GRUBER, C.J., and VIRDEN, J., agree.
Dusti Standridge, for appellant.
Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
7
Wells proffered the instruction he wished to read to the jury; it advised the jury that
Wells “may also contend that he should receive [an] alternative sentence of probation.” His
proffered alternative-sentence verdict form reflected an option for the jury to “place [the
defendant] on supervised probation for a period of 0-72 months upon conditions to be
imposed by the Court.”
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