Cite as 2023 Ark. App. 272 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-22-729
ANTHONY SIMMONS Opinion Delivered May 10, 2023 APPELLANT APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT V. [NO. 35CR-18-327]
STATE OF ARKANSAS HONORABLE ALEX GUYNN, JUDGE APPELLEE AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Appellant Anthony Ramon Simmons appeals his Jefferson County Circuit Court
conviction for possession of a firearm by certain persons. His sole point on appeal is that
there was insufficient evidence to support his conviction. We affirm.
Police received a tip from a confidential informant that drugs were being sold out of
an auto repair shop at 312 Harding Avenue in Pine Bluff. An investigation ensued, and
officers made a controlled drug buy from a person, not Simmons, at that address. On June
14, 2018, Pine Bluff police officers executed a search warrant obtained as a result of the
controlled drug buy. When officers breached the building, Simmons was the only occupant
and the only person present during the search. During the search, among other evidence,
the officers recovered an “AK-47” with a loaded magazine located under a sofa in the office
area of the shop. Officer Johnson testified that he took charge of the rifle discovered under the sofa in the office area near the desk where other items of contraband were also located.
Officers confiscated what was believed to be crack cocaine and a pellet pistol that was a
replica of a Taurus pistol. Officers also found hydrocodone pills in a prescription bottle
bearing the name of a person other than Simmons. Officer Johnson cleared the rifle of
twenty-nine live rounds of ammunition for safety and then later sent it to be processed as
evidence by the Arkansas State Crime Laboratory. Simmons, a convicted felon, was arrested
and charged with possession of a firearm by certain persons, possession of controlled
substance, and simultaneous possession of firearm and drugs.
Officer Johnson recorded a postarrest interview of Simmons, who acknowledged that
he was the owner and operator of the business that was searched, that he had no employees,
and that he was alone at the business when it was searched. Regarding the AK-47, Simmons
admitted that it was his rifle, and “he had bought it from a crackhead for about $150.”
Simmons acknowledged that his fingerprints could be found on the rifle because he had
held it. Contrary to his confession during the interview, Simmons’s trial testimony eluded
that other persons may have had access to his office area. He testified that customers and
the landlord had access to that area and that he had called police about burglaries at his
place of business, implying that one of these unidentified persons had left the rifle in his
office under the sofa.
On June 11, 2018, the State filed an amended criminal information charging
Simmons with simultaneous possession of drugs and firearms; possession of
methamphetamine or cocaine with purpose to deliver, greater than $2500; possession of a
2 firearm by certain persons; and theft by receiving, less than $2,500. Prior to trial, the State
agreed to sever the firearm-possession charge from the other charges and to proceed to trial
solely on the charge of possession of a firearm by certain persons.
Arkansas Code Annotated § 5-73-103(c)(1)(C) (Repl. 2016) provides that “no person
shall possess or own any firearm who has been . . . previously convicted under this section
or a similar provision from another jurisdiction.” Simmons does not dispute that he had
previously been convicted as a felon in possession of a firearm.
On November 18, 2021, in preparation for trial, Simmons filed a motion in limine,
a motion to sever, a motion to suppress physical evidence, and a motion to suppress
Simmons’s statement to officers. The court held a hearing on the motion to suppress
physical evidence on July 22, 2021. The court denied the motion to suppress the rifle and
drugs seized from Simmons. On December 1, 2021, Simmons withdrew his motion to
suppress statement.
On April 8, 2021, the parties appeared and announced they were ready for trial. A
jury panel had been summoned and awaited the court to begin jury selection when Simmons
announced he was requesting a hearing on a motion to suppress statements to officers. The
court denied the motion because the deadline for filing of motions had expired ten days
previously.
The jury found Simmons guilty of possession of a firearm by certain persons and the
firearm enhancement and found that he was a habitual offender. Simmons was sentenced
to a total of 120 months in the Arkansas Department of Correction with 101 days jail credit
3 and fined $10,000. An amended sentencing order was filed on July 13, 2022. Simmons
appealed from that order.
For his sole point on appeal, Simmons argues that substantial evidence does not exist
to support his conviction of possession of a firearm by a felon and the subsequent firearm
enhancement. His argument rests on the allegation that the State did not prove constructive
possession. At the conclusion of the State’s case and at the conclusion of all evidence,
Simmons moved for a directed verdict, alleging that “it’s the defense’s position that
possession is not proved or there is not sufficient evidence to prove possession.” Arkansas
Rule of Criminal Procedure 33.1(a) provides that a directed-verdict motion “shall state the
specific grounds therefor.” This court interprets Rule 33.1 strictly, Grady v. State, 350 Ark.
160, 85 S.W.3d 531 (2002), and failure to comply with subsection (a) “will constitute a
waiver of any question pertaining to the sufficiency of the evidence to support the verdict or
judgment.” Ark. R. Crim. P. 33.1(c); see also Smith v. State, 367 Ark. 274, 239 S.W.3d 494
(2006).
Simmons did not allege specifically that the State failed to prove constructive
possession in his directed-verdict motion and makes this argument for the first time on
appeal. An almost identical issue was addressed in McKinney v. State, 2018 Ark. App. 10, 538
S.W.3d. In that case, McKinney’s motion for directed verdict merely stated that he did not
possess the firearm. As in this case, he did not argue to the trial court that the State failed to
prove that he constructively possessed the firearm. The court stated that under these
circumstances, “we hold that McKinney’s motion was too general to preserve the
4 constructive-possession argument he has raised on appeal.” See also Conley v. State, 2011 Ark.
App. 597, at 6, 285 S.W.3d 875, 878–79. Because Simmons’s motion for directed verdict
did not comply with the requirements of Rule 33.1, and because we require a strict
interpretation of that rule, we conclude that we cannot consider Simmons’s sufficiency
argument on appeal.
Simmons attempts to insert into his appeal an argument that his statement to officers
was based on a false promise made to him to convince him to give a statement. This issue
was not raised at trial court except in redirect testimony and was not argued in his motion
for directed verdict, nor did he object on this ground when his statement was admitted at
trial. It is well settled that an appellant may not change the grounds for objection on appeal
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Cite as 2023 Ark. App. 272 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-22-729
ANTHONY SIMMONS Opinion Delivered May 10, 2023 APPELLANT APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT V. [NO. 35CR-18-327]
STATE OF ARKANSAS HONORABLE ALEX GUYNN, JUDGE APPELLEE AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Appellant Anthony Ramon Simmons appeals his Jefferson County Circuit Court
conviction for possession of a firearm by certain persons. His sole point on appeal is that
there was insufficient evidence to support his conviction. We affirm.
Police received a tip from a confidential informant that drugs were being sold out of
an auto repair shop at 312 Harding Avenue in Pine Bluff. An investigation ensued, and
officers made a controlled drug buy from a person, not Simmons, at that address. On June
14, 2018, Pine Bluff police officers executed a search warrant obtained as a result of the
controlled drug buy. When officers breached the building, Simmons was the only occupant
and the only person present during the search. During the search, among other evidence,
the officers recovered an “AK-47” with a loaded magazine located under a sofa in the office
area of the shop. Officer Johnson testified that he took charge of the rifle discovered under the sofa in the office area near the desk where other items of contraband were also located.
Officers confiscated what was believed to be crack cocaine and a pellet pistol that was a
replica of a Taurus pistol. Officers also found hydrocodone pills in a prescription bottle
bearing the name of a person other than Simmons. Officer Johnson cleared the rifle of
twenty-nine live rounds of ammunition for safety and then later sent it to be processed as
evidence by the Arkansas State Crime Laboratory. Simmons, a convicted felon, was arrested
and charged with possession of a firearm by certain persons, possession of controlled
substance, and simultaneous possession of firearm and drugs.
Officer Johnson recorded a postarrest interview of Simmons, who acknowledged that
he was the owner and operator of the business that was searched, that he had no employees,
and that he was alone at the business when it was searched. Regarding the AK-47, Simmons
admitted that it was his rifle, and “he had bought it from a crackhead for about $150.”
Simmons acknowledged that his fingerprints could be found on the rifle because he had
held it. Contrary to his confession during the interview, Simmons’s trial testimony eluded
that other persons may have had access to his office area. He testified that customers and
the landlord had access to that area and that he had called police about burglaries at his
place of business, implying that one of these unidentified persons had left the rifle in his
office under the sofa.
On June 11, 2018, the State filed an amended criminal information charging
Simmons with simultaneous possession of drugs and firearms; possession of
methamphetamine or cocaine with purpose to deliver, greater than $2500; possession of a
2 firearm by certain persons; and theft by receiving, less than $2,500. Prior to trial, the State
agreed to sever the firearm-possession charge from the other charges and to proceed to trial
solely on the charge of possession of a firearm by certain persons.
Arkansas Code Annotated § 5-73-103(c)(1)(C) (Repl. 2016) provides that “no person
shall possess or own any firearm who has been . . . previously convicted under this section
or a similar provision from another jurisdiction.” Simmons does not dispute that he had
previously been convicted as a felon in possession of a firearm.
On November 18, 2021, in preparation for trial, Simmons filed a motion in limine,
a motion to sever, a motion to suppress physical evidence, and a motion to suppress
Simmons’s statement to officers. The court held a hearing on the motion to suppress
physical evidence on July 22, 2021. The court denied the motion to suppress the rifle and
drugs seized from Simmons. On December 1, 2021, Simmons withdrew his motion to
suppress statement.
On April 8, 2021, the parties appeared and announced they were ready for trial. A
jury panel had been summoned and awaited the court to begin jury selection when Simmons
announced he was requesting a hearing on a motion to suppress statements to officers. The
court denied the motion because the deadline for filing of motions had expired ten days
previously.
The jury found Simmons guilty of possession of a firearm by certain persons and the
firearm enhancement and found that he was a habitual offender. Simmons was sentenced
to a total of 120 months in the Arkansas Department of Correction with 101 days jail credit
3 and fined $10,000. An amended sentencing order was filed on July 13, 2022. Simmons
appealed from that order.
For his sole point on appeal, Simmons argues that substantial evidence does not exist
to support his conviction of possession of a firearm by a felon and the subsequent firearm
enhancement. His argument rests on the allegation that the State did not prove constructive
possession. At the conclusion of the State’s case and at the conclusion of all evidence,
Simmons moved for a directed verdict, alleging that “it’s the defense’s position that
possession is not proved or there is not sufficient evidence to prove possession.” Arkansas
Rule of Criminal Procedure 33.1(a) provides that a directed-verdict motion “shall state the
specific grounds therefor.” This court interprets Rule 33.1 strictly, Grady v. State, 350 Ark.
160, 85 S.W.3d 531 (2002), and failure to comply with subsection (a) “will constitute a
waiver of any question pertaining to the sufficiency of the evidence to support the verdict or
judgment.” Ark. R. Crim. P. 33.1(c); see also Smith v. State, 367 Ark. 274, 239 S.W.3d 494
(2006).
Simmons did not allege specifically that the State failed to prove constructive
possession in his directed-verdict motion and makes this argument for the first time on
appeal. An almost identical issue was addressed in McKinney v. State, 2018 Ark. App. 10, 538
S.W.3d. In that case, McKinney’s motion for directed verdict merely stated that he did not
possess the firearm. As in this case, he did not argue to the trial court that the State failed to
prove that he constructively possessed the firearm. The court stated that under these
circumstances, “we hold that McKinney’s motion was too general to preserve the
4 constructive-possession argument he has raised on appeal.” See also Conley v. State, 2011 Ark.
App. 597, at 6, 285 S.W.3d 875, 878–79. Because Simmons’s motion for directed verdict
did not comply with the requirements of Rule 33.1, and because we require a strict
interpretation of that rule, we conclude that we cannot consider Simmons’s sufficiency
argument on appeal.
Simmons attempts to insert into his appeal an argument that his statement to officers
was based on a false promise made to him to convince him to give a statement. This issue
was not raised at trial court except in redirect testimony and was not argued in his motion
for directed verdict, nor did he object on this ground when his statement was admitted at
trial. It is well settled that an appellant may not change the grounds for objection on appeal
but is limited by the scope and nature of his objections and arguments presented at trial.
Ayers v. State, 334 Ark. 258, 264, 975 S.W.2d 88, 91 (1998). Moreover, we cannot consider
arguments raised for the first time on appeal. Hill v. State, 341 Ark. 211, 16 S.W.3d 539
(2000); Wallace v. State, 326 Ark. 376, 379, 931 S.W.2d 113, 115 (1996). Even a
constitutional argument raised for the first time on appeal will not be addressed. Claiborne v.
State, 319 Ark. 537, 893 S.W.2d 324 (1995). We are therefore precluded from addressing
this argument on appeal.
However, even if Simmons had preserved his sufficiency-of-the-evidence issue for
appeal, he would not have prevailed. Simmons argues that the State failed to prove that he
possessed or constructively possessed the AK-47 rifle found in his business. On appeal from
the denial of a directed-verdict motion challenging the sufficiency of the evidence, we view
5 the evidence in the light most favorable to the verdict, considering only the evidence that
supports the verdict, and determine whether the verdict is supported by substantial evidence,
which is evidence of sufficient certainty and precision to compel a conclusion one way or
another and pass beyond mere suspicion or conjecture. Turner v. State, 2014 Ark. 415, 443
S.W.3d 535. Although circumstantial evidence may provide the basis to support a
conviction, it must be consistent with the defendant’s guilt and inconsistent with any other
reasonable conclusion. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. Here, there was
evidence introduced that Simmons was in exclusive possession of the premises where the
rifle was found, he had no employees, the rifle was in the office area of his shop under a sofa,
and he admitted he had bought the rifle from a “crackhead” for $150. The law regarding
constructive possession is well settled. It is not necessary for the State to prove that an accused
physically held the contraband, as possession of contraband can be proved by constructive
possession, which is the control or right to control the contraband. Tubbs v. State, 370 Ark.
47, 257 S.W.3d 47 (2007). Constructive possession may be inferred when the contraband is
found in a place immediately and exclusively accessible to the defendant and subject to his
control. Robinson v. State, 2017 Ark. App. 689, 537 S.W.3d 675. Simmons also admitted that
his fingerprints would be on the rifle. To constructively possess a firearm means knowing it
is present and having control over it. Lambert v. State, 2020 Ark. App. 557, 613 S.W.3d 768.
Whether the evidence excludes every other hypothesis is a decision left to the jury. Id. The
jury has the sole authority to evaluate the credibility of evidence and to apportion the weight
to be given to the evidence. Starling v. State, 2016 Ark. 20, 480 S.W.3d 158. It is important
6 to remember that jurors do not and need not view each fact in isolation; rather, they consider
the evidence as a whole. The jury is entitled to draw any reasonable inference from
circumstantial evidence to the same extent that it can from direct evidence. Shipley v. State,
25 Ark. App. 262, 757 S.W.2d 178 (1988). When reviewing the sufficiency of the evidence
supporting a conviction, this court considers all the evidence introduced at trial, whether
correctly or erroneously admitted, and disregards any alleged trial error. Vann v. State, 2018
Ark. App. 601, at 7, 566 S.W.3d 170, 174. The reviewing court also does not weigh the
evidence presented at trial or assess witness credibility. Chambers v. State, 2020 Ark. App. 54,
595 S.W.3d 371, 375.
We find that the evidence, when viewed in the light most favorable to the verdict,
shows that there is substantial evidence to support the verdict.
Affirmed.
KLAPPENBACH and BROWN, JJ., agree.
Eric Moore, for appellant.
Tim Griffin, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.