David Burgess v. State of Arkansas

2021 Ark. App. 54

• Court: Court of Appeals of Arkansas
• Decided: February 10, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 54 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION IV 2023.06.22 12:48:23 -05'00' No. CR-20-361 2023.001.20174 Opinion Delivered February 10, 2021

DAVID BURGESS APPEAL FROM THE CRAIGHEAD APPELLANT COUNTY CIRCUIT COURT, WESTERN DISTRICT V. [NOS. 16JCR-14-118, 16JCR-16-386, and 16JCR-16-971] STATE OF ARKANSAS APPELLEE HONORABLE KEITH CHRESTMAN, JUDGE

AFFIRMED IN PART; REVERSED AND DISMISSED IN PART; REMANDED IN PART

BRANDON J. HARRISON, Chief Judge

The Craighead County Circuit Court revoked David Burgess’s suspended

imposition of sentence (SIS) in three separate underlying cases, and he has appealed that

decision. He argues that the circuit court erred in finding that he willfully failed to pay fines

and costs or that he failed to live a law-abiding life. We affirm his revocation in two cases,

reverse and dismiss one revocation, and remand for resentencing.

On 30 January 2014, the State charged Burgess with possession of a controlled

substance with intent to deliver and possession of drug paraphernalia to manufacture a

controlled substance (16JCR-14-118). On 14 July 2014, Burgess pled guilty to both charges

and received sentences of five years’ probation and six years’ SIS, respectively, to run

concurrently. 1 On 28 September 2015, the State petitioned to revoke Burgess’s probation and SIS

alleging that he had failed to live a law-abiding life, had failed to pay fines and/or court costs

as directed, had possessed illegal drugs, and had been charged with possession of a controlled

substance with purpose to deliver. On 25 April 2016, the State filed a second revocation

petition, alleging new charges of simultaneous possession of drugs and firearms, felon in

possession of a firearm, possession of a controlled substance with purpose to deliver, and

possession of drug paraphernalia to manufacture a controlled substance (16JCR-16-386).

On 6 October 2016, the State again amended the revocation petition to include the

allegation that in July 2016 Burgess had pled guilty in Jonesboro District Court to driving

while intoxicated and hazardous driving. On 14 October 2016, the State filed yet another

amended revocation petition to include the following new charges: offenses relating to

records, maintaining premises, etc., within 1000 feet of a certified drug-free zone; possession

of a controlled substance with intent to deliver; and possession of drug paraphernalia to

manufacture a controlled substance (16JCR-16-971).

Burgess pled guilty in 16JCR-16-386 to felon in possession of a firearm and

possession of a controlled substance with purpose to deliver, and he was sentenced to two

days’ imprisonment in the county jail and five years’ SIS on each charge. In 16JCR-16-

971, Burgess pled guilty to possession of a controlled substance with intent to deliver and

possession of drug paraphernalia to manufacture a controlled substance, and he was

sentenced to one hundred months’ imprisonment with five years’ SIS and ten days’

2 imprisonment in the county jail with five years’ SIS, respectively.

On 24 May 2019, the State moved to revoke Burgess’s SIS in 16JCR-14-118,

16JCR-16-386, and 16JCR-16-971. That petition alleged that Burgess had failed to live a

law-abiding life, had failed to pay fines and/or court costs as directed, had possessed illegal

drugs, and had committed the crimes of simultaneous possession of drugs and firearms, felon

in possession of a firearm, possession of a controlled substance with purpose to deliver, and

possession of drug paraphernalia to manufacture a controlled substance.

The circuit court convened a hearing on 20 February 2020. Bryan Bailey, an

investigator with the Jonesboro Police Department, recalled that on 29 March 2019, the

police received an anonymous tip that Burgess was living with his mother and “housing

marijuana.” Bailey and another officer, Chris Jefferson, observed Burgess leaving the

identified apartment and approached him. Jefferson stayed with Burgess while Bailey went

to the door of the apartment to verify that it was Burgess’s mother’s residence and that he

lived there. Bailey stated that as he approached the door, there was a strong odor of

marijuana coming from inside. He knocked multiple times without receiving a response;

Jefferson then tossed Burgess’s keys to Bailey, and he began to unlock the door. Burgess’s

mother met Bailey at the door, and she told him that Burgess was not living there but

sometimes came over. The officers conducted a preliminary sweep to secure the residence

while they obtained a search warrant. Bailey observed men’s clothes and shoes in a closet

as well as multiple jars of suspected marijuana. Jefferson found a piece of mail with Burgess’s

3 name on it. At that time, the officers decided they had a basis to conduct a search based on

Burgess’s status as a parolee instead of obtaining a search warrant. Bailey then seized the

mason jars filled with suspected marijuana. He also found individual bags of suspected

marijuana inside a plastic tub and inside a shoe box at the bottom of the closet. In addition,

Bailey found $9100 in cash, a box of sandwich bags, and a digital scale.

Investigator Chris Jefferson testified and confirmed Bailey’s account of their

encounter with Burgess. Jefferson also stated that in his search of the apartment, specifically

in his search of a coat closet, he found a loaded 9-millimeter pistol and ammunition.

Burgess’s mother told police she did not own a firearm. Jefferson also explained that in a

recorded conversation from the jail, Burgess had told his mother that he obtained the gun

“from a white guy” and that it was “clean.” In two other recorded conversations with an

unidentified female, Burgess discussed the money, including $5000 located in a jacket

pocket that the police had missed, and the amount of marijuana that had been seized.

Quinton Bryant, a forensic chemist at the Arkansas State Crime Laboratory,

confirmed that the substance in the jars and the bags was marijuana. Bryant testified that

the weight of the marijuana was approximately three pounds.

Becky Mahan, the fine and fee collector at the Craighead County Sheriff’s

Department, testified that Burgess had overdue balances of $265 in 16JCR-14-118 and $295

in 16JCR-16-386. She stated that the $295 balance in 16JCR-16-971 had been paid in

full. She also acknowledged that Burgess was obligated to start making payments sixty days

4 after his release, but she did not know the exact date he was supposed to start payments in

those cases.

Evelyn Burgess, Burgess’s mother, testified that on 29 March 2019, a man named

Anthony Jones had been living with her. She said the clothes and shoes found by police

belonged to Jones. She denied her son ever stayed the night at her apartment. Evelyn also

denied any knowledge of the “stuff” found in the closet but said only Jones and her son had

access to the closet. She said that she did not know about the firearm at the time but that

she later found out it had been purchased by her daughter, Nancy.

Nancy Burgess testified that on 29 March 2019, her brother had been living with his

girlfriend, not their mother. Nancy said her mother’s boyfriend had been living with her

mother. Nancy also stated that she had met one of Burgess’s friends at her mother’s

apartment and purchased the gun found in the closet. She said that it should not have been

loaded. Mykala Jeffrey, Burgess’s girlfriend, testified that Burgess had lived with her from

the time he had been released from prison in October 2018 until 29 March 2019 when he

was arrested.

From the bench, the circuit court found that the State had introduced evidence of

Burgess’s failure to pay fines and costs in two of the underlying cases and his successful

payment of fines and costs in one case. The court noted that once the State has offered

evidence of nonpayment, the burden then shifts to the defendant to justify a failure to pay,

but Burgess presented no evidence on his failure to pay. Thus, the court found that Burgess’s

5 failure to pay those fines was a violation of the terms of his probation.

As to Burgess’s failure to live a law-abiding life and not violate and federal, state, or

local laws, the circuit court found that the State’s evidence, and specifically the telephone

calls that demonstrated Burgess’s knowledge of the money as well as the weight and location

of the marijuana that was found, established Burgess’s constructive possession of the

contraband. The court also found Nancy Burgess’s testimony not credible and that Burgess

constructively possessed the firearm as well. The court concluded that Burgess had failed to

live a law-abiding life and had possessed illegal drugs. The court sentenced Burgess to an

aggregate term of thirty years’ imprisonment and ten years’ SIS. He has now appealed his

convictions.

To revoke probation or an SIS, the burden is on the State to prove the violation of

a condition of the probation or SIS by a preponderance of the evidence. Jones v. State, 355

Ark. 630, 144 S.W.3d 254 (2004). On appellate review, the circuit court’s findings will be

upheld unless they are clearly against the preponderance of the evidence. Id. Because the

burdens are different, evidence that is insufficient for a criminal conviction may be sufficient

for revocation of probation or suspended sentence. Id. Thus, the burden on the State is

not as great in a revocation hearing. Id. Furthermore, because the determination of a

preponderance of the evidence turns on questions of credibility and weight to be given to

the testimony, we defer to the circuit court’s superior position. Id. Finally, only one

violation is required to sustain a revocation. Springs v. State, 2017 Ark. App. 364, 525

6 S.W.3d 490.

I. Failure to Live a Law-Abiding Life

Burgess argues that the circuit court erred in finding that he failed to live a law-

abiding life because the State failed to prove his constructive possession of the contraband

and the firearm found inside his mother’s apartment. Constructive possession is established

by proving the defendant exercised care, control, and management over the contraband.

Knauls v. State, 2020 Ark. App. 48, 593 S.W.3d 58. Constructive possession may be implied

when the contraband is in the joint control of the defendant and another person. Id. Joint

occupancy alone, however, is not sufficient to establish possession or joint possession; there

must be some additional factor linking the accused to the contraband. Id. In joint-

occupancy cases, the State must prove two additional elements: (1) the accused exercised

care, control, and management over the contraband; and (2) the accused knew the matter

possessed was contraband. Id. A defendant’s control over, and knowledge of, the

contraband can be inferred from the circumstances, such as the proximity of the contraband

to the accused, the fact that it is in plain view, the ownership of the property where the

contraband is found, and the accused’s suspicious behavior. Id.

Burgess asserts that, at best, the evidence showed that he knew about the contraband

and the firearm, but there was no proof that he exercised care, control, or management over

the contraband. The contraband was found at his mother’s home, and his knowledge of it

being at his mother’s home does not amount to exercising dominion and control over the

7 contraband.

The State counters that Burgess’s presence and access to the apartment, along with

his recorded admissions, showed that he constructively possessed the contraband and

supports revocation on that issue. The State cites the following evidence: Burgess had a

key to the apartment, the apartment reeked of marijuana, his mail was found inside the

apartment, men’s clothing was found in close proximity to the contraband, and recordings

proved that Burgess bought the firearm, knew what amount of marijuana was found, and

knew how much money had been seized (and that $5000 had not been seized).

While there was testimony presented to contradict some of this evidence, we defer

to the circuit court’s superior position on questions of credibility and weight of the

testimony. Jones, supra. Given the evidence presented and our standard of review, we hold

that the evidence was sufficient to establish constructive possession by a preponderance of

the evidence and affirm the revocation. Because only one violation is required to sustain a

revocation, we need not discuss the revocation based on Burgess’s failure to pay fines and

costs. See Springs, supra.

II. Illegal Sentence

Although not raised by the parties, there is an illegal-sentence issue in this case that

must be addressed. An appellate court may raise an issue of an illegal sentence sua sponte,

and it is obligated to correct an apparent illegal sentence on review on appeal. Smith v.

Kelley, 2016 Ark. 307.

8 As noted above, Burgess pled guilty in 16JCR-16-386 to felon in possession of a

firearm and possession of a controlled substance with purpose to deliver, which are B and

C felonies, respectively. He was also sentenced as a habitual offender with four or more

priors. Thus, the statutory range for a B felony is five to forty years, and the range for a C

felony is three to thirty years. However, Burgess was given a sentence of two days in county

jail plus five years’ SIS for each conviction, which is clearly outside the statutory range; thus,

his sentence is illegal. This court has held that a revocation based on an underlying illegal

sentence is improper and should be dismissed. Dodds v. State, 2018 Ark. App. 86, 543

S.W.3d 513. We therefore reverse and dismiss the revocation in 16JCR-16-386, and we

remand to the circuit court to enter a sentence for the convictions within the required

statutory range.

In conclusion, we affirm the revocations in 16JCR-14-118 and 16JCR-16-971,

reverse and dismiss the revocation in 16JCR-16-386, and remand to the circuit court for

resentencing.

Affirmed in part; reversed and dismissed in part; remanded in part.

KLAPPENBACH and BARRETT, JJ., agree.

Terry Goodwin Jones, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.