Kourakis v. State

Cite as 2015 Ark. App. 612
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-15-307
Opinion Delivered October 28, 2015
RICHARD RANDAL KOURAKIS APPEAL FROM THE SHARP
APPELLANT COUNTY CIRCUIT COURT
[No. CR-2014-78]
V. HONORABLE HAROLD S. ERWIN,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
Richard Kourakis appeals his convictions by a Sharp County jury for possession of
drug paraphernalia, possession of a controlled substance with the purpose to deliver, and
simultaneous possession of drugs and firearms. He challenges the sufficiency of the evidence
against him and the trial court’s denial of his motion to suppress. We affirm on both issues.
On May 22, 2014, police responded to a report of an altercation between Richard and
his son, Jason Kourakis. Jason told an officer that the altercation occurred because of his
father’s use of narcotics. He also told the officer that he had observed, in the past several
months, Richard possess and ingest cannabis butter 1 at his home. The officer advised Jason
that, because he had not seen any controlled substances in the home recently, they could not
obtain a search warrant based upon his information. Jason agreed to meet the officer the
next day to confirm that the narcotics were still in the home.
Cannabis butter or pot butter is made by crushing the marijuana plant and extracting
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the THC.
Cite as 2015 Ark. App. 612
The following morning, Jason went to Richard’s house and, with Richard’s
knowledge and consent, Jason used his cell phone to record a video of Richard
demonstrating how the cannabis butter was used. Jason told his father that he needed the
video so that he could show it to potential buyers. Jason then took the video to the sheriff’s
department and played it for Detective Aaron Presser. Jason then completed an affidavit that
was used to obtain a search warrant for Richard’s home.
Later that day, officers conducted a search of Richard’s home. The home contained
two bedrooms and was approximately 1100 square feet. The officers seized 10.3 ounces of
THC in the form of cannabis butter, drug paraphernalia in the form of smoking pipes with
marijuana residue, numerous firearms, and ammunition.
At trial, Detective Jimmy Bennett testified that at least one pistol, located
approximately fifteen steps away from the cannabis butter, was loaded. 2 Other guns,
including shotguns and pistols located in Richard’s house and vehicle, were either unloaded
or evidence was never introduced that they were loaded. No ammunition was entered into
evidence.
At trial Richard objected to introduction of Jason’s cell-phone video. 3 He argued that
it was made during a warrantless search of his home because Jason was acting as an agent of
2
It is unclear from the testimony whether the other firearms were also loaded.
Bennett testified “the pistols” were loaded, while the long guns were not. However, he
provided specific testimony as to only one pistol found in the bedroom, identifying a
photograph of ammunition as the ammunition taken from the chamber of that gun.
3
The State failed to object to the motion as being untimely under Rule 16.2 of the
Arkansas Rules of Criminal Procedure, and the court exercised its discretion, as allowed by
the rule, to decide Richard’s untimely motion on its merits. The State did not argue on
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Cite as 2015 Ark. App. 612
the police. The trial court disagreed and admitted the video. Richard also moved for a
directed verdict as to the charge of simultaneous possession of drugs and firearms based
upon the argument that there was insufficient evidence that any of the firearms were readily
accessible for use. The trial court denied the motion.
In reviewing a challenge to the sufficiency of the evidence, this court determines
whether the verdict is supported by substantial evidence, direct or circumstantial. Smoak v.
State, 2011 Ark. 529, at 2, 385 S.W.3d 257, 259. Substantial evidence is evidence forceful
enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id.,
385 S.W.3d at 259. This court views the evidence in the light most favorable to the verdict,
and only evidence supporting the verdict will be considered. Id., 385 S.W.3d at 259. In
reviewing a trial court’s decision on a motion to suppress evidence, we review factual
determinations for clear error while reviewing legal conclusions de novo. Davis v. State, 351
Ark. 406, 412, 94 S.W.3d 892, 895 (2003).
Pursuant to Arkansas Code Annotated section 5-74-106, the State must prove that
Richard possessed both a controlled substance and a firearm, and that there was a
connection between the firearm and the controlled substance. Stanton v. State, 344 Ark. 589,
600–01, 42 S.W.3d 474, 481–82 (2001). The statute also provides that a defendant cannot be
convicted based upon simultaneous possession within his own home if the firearm was not
“readily accessible for use.” Ark. Code Ann. § 5-74-106(d) (Supp.2015). Richard argues that,
because this court has ruled that an unloaded weapon with no ammunition is not “readily
accessible for use,” Rabb v. State, 72 Ark. App. 396, 403, 39 S.W.3d 11, 16 (2001), there was
appeal that Richard was barred from raising this argument due to his failure to file a timely
motion.
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Cite as 2015 Ark. App. 612
insufficient evidence to support his conviction where the ammunition found at the scene
was never introduced into evidence. This argument fails because there is no requirement that
the ammunition be introduced into evidence. Detective Bennett testified that a pistol found
in the bedroom was loaded, and the State introduced a photograph of ammunition that
Bennett testified was taken from the chamber of that pistol. Therefore, there was substantial
evidence that at least one gun in the house was “readily accessible for use.”
We also affirm the trial court’s decision to admit the cell-phone video into evidence.
Richard argues that the video was the result of an illegal search of his home because Jason
was acting as an agent of the police when he took the video. A search by a private citizen
only raises Fourth Amendment concerns if the person conducting the search acts at the
request or direction of the government or is engaged in a joint endeavor with the
government. Winters v. State, 301 Ark. 127, 131, 782 S.W.2d 566, 568 (1990). Richard’s
argument fails for two reasons. First, Richard invited Jason into his home and was aware that
he was being recorded, therefore waiving any Fourth Amendment protection. Richard had
no reasonable expectation of privacy when he voluntarily allowed another person to view
and record the controlled substances. As the State correctly argues, this situation is akin to
that in which a defendant sells drugs to a confidential informant or undercover officer. See
Rhoades v. State, 270 Ark. 962, 964–65, 607 S.W.2d 76, 78 (1980); Sherman v. State, 2009 Ark.
275, at 6, 308 S.W.3d 614, 617.
Second, Jason’s actions did not implicate Fourth Amendment protection because he
was not acting at the direction or request of police. Jason testified inconsistently, stating both
that he did what “they” (the police) asked him to do and also testifying that no one ever told
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Cite as 2015 Ark. App. 612
him to go to Richard’s house and make the video. While it is clear that the officer advised
Jason that the police could not obtain a search warrant based solely upon Jason’s initial
disclosure about Richard’s possession of narcotics and that Jason was motivated to make the
video in order to assist officers in obtaining a search warrant, we have previously held that a
private citizen’s desire to assist law enforcement does not convert him into a government
agent for the purposes of Fourth Amendment analysis. Morrow v. State, 73 Ark. App. 32, 34–
36, 41 S.W.3d 819, 820–22 (2001). Although Jason’s testimony was inconsistent, his
assertion that the police never instructed him to return to the home and make the video was
corroborated by the testimony of Detective Presser.
Richard’s argument that the evidence obtained during the search must be excluded
because the search warrant was based upon Jason’s cell-phone video is therefore meritless.
We have already determined that the video was not illegally obtained. If the video itself was
properly admitted, there is no basis for excluding the evidence obtained in the subsequent
search. Second, Richard never raised this objection at trial, so it was not preserved for
appellate review. Leach v. State, 2012 Ark. 179, at 16, 402 S.W.3d 517, 528.
Affirmed.
ABRAMSON and HIXSON, JJ., agree.
R. T. Starken, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.
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