Donald Freeman v. State of Arkansas
This text of 2024 Ark. App. 584 (Donald Freeman v. State of Arkansas) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Cite as 2024 Ark. App. 584 ARKANSAS COURT OF APPEALS DIVISION II No. CR-24-121
DONALD FREEMAN APPELLANT Opinion Delivered November 20, 2024
V. APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-22-546]
STATE OF ARKANSAS HONORABLE DAN RITCHEY, JUDGE APPELLEE AFFIRMED
MIKE MURPHY, Judge The Crittenden County Circuit Court revoked appellant Donald Freeman’s
suspended imposition of sentence (SIS) and sentenced him to three years’ imprisonment
followed by five years’ SIS. On appeal, Freeman challenges the sufficiency of the evidence
supporting the revocation. We affirm.
On June 5, 2023, Freeman pleaded guilty to one count of delivery of methamphetamine or
cocaine weighing under two grams in case number 18CR-22-546. He was placed on sixty months’
SIS. As part of his plea, Freeman agreed to certain terms and conditions, which included paying
fines, costs, restitution, and fees; living a law-abiding life; and possessing no firearms. On
September 19, the State petitioned to revoke Freeman’s SIS, alleging that he failed to pay
fines, costs, restitution, and fees as directed; failed to live a law-abiding life; and committed the new offense of possession of a firearm by a certain person and possession of drug
paraphernalia.
A revocation hearing was conducted on December 4. At the hearing, Officer Blaine
Cagle with the West Memphis Police Department testified that while he was running
surveillance on Freeman’s home, Freeman was involved in a traffic stop at another location
and was brought back to his house. Cagle testified that he and other officers conducted a
probation search of the home. During the search, Cagle found drug paraphernalia
throughout the home, a loaded rifle hidden in a floor vent, and ammunition that matched
the rifle in a nightstand and a dresser. Cagle testified that Freeman later described in an
interview that his bedroom was the one where the ammunition was found. Cagle also
testified that Freeman denied ownership of the firearm.
Officer Jamie Counce with the West Memphis Police Department also testified.
Counce’s testimony matched Cagle’s, and he added that before the search, Freeman told
him that there was likely a methamphetamine pipe in the home due to people “coming and
going.” Counce said that Freeman told him he was the only person living in the home at the
time.
Patricia Joplin, record keeper for the Crittenden County Sheriff’s Department,
testified that Freeman’s statement amount is $915 and that he was ordered to pay $35 a
month beginning July 5, 2023. She testified that Freeman made a $100 payment on October
13 but that due to the computer system, the payment was automatically applied to one of
2 Freeman’s older cases. She said he has a total of five cases that require payment on fines and
that he has made only seven payments since 2012 on those cases.
Beth Turner testified for the defense and stated that several people lived in Freeman’s
home and that people come and go. She said that she was living at Freeman’s home the day
of the probation search. She testified that the firearm was a Christmas gift for her grandson,
and she knew Freeman was not supposed to have a firearm, so she hid it. She testified that
she did not keep the receipt or register the firearm. She also claimed she was not aware that
the gun was loaded.
Last, Freeman testified that his home is owned by his brother and that when his
brother moved about five years ago, he left many of his belongings behind, including the
ammunition found in the home. He testified that he does not work and draws disability. He
explained he is unable to manage his finances, so his sister helps him and that she is in charge
of making his payments toward his fines and court costs.
At the conclusion of the hearing, the court found that Freeman had missed payments
and provided no reasonable explanation for that failure and that he failed to live a law-
abiding life. Freeman’s SIS was revoked, and he appealed.
On appeal of a revocation, we determine whether the circuit court’s findings are
clearly against the preponderance of the evidence. Vail v. State, 2019 Ark. App. 238. To
revoke probation, the State has the burden of proving that a condition of probation was
violated. Id. Because the burden of proof is by a preponderance of the evidence rather than
beyond a reasonable doubt, evidence that is insufficient to support a criminal conviction
3 may be sufficient to support a revocation. Id. Because a determination of the preponderance
of the evidence turns heavily on questions of credibility and weight to be given to the
testimony, the appellate courts defer to the circuit court’s superior position in this regard.
Mosley v. State, 2023 Ark. App. 103, at 6.
On appeal, Freeman argues that there was insufficient evidence that he failed to live
a law-abiding life. To support his argument, he contends the State failed to prove that he
had constructive possession over the firearm and drug paraphernalia. While he concedes
that he knew that paraphernalia could be in the house because of other individuals, he says
he did not know where it was located and that it was not his. Further, he directs us to Turner
and her testimony that he did not know the firearm existed or was hidden in the vent.
When determining whether a defendant is in possession of contraband, the State
does not need to prove actual possession; constructive possession is sufficient. Franklin v.
State, 60 Ark. App. 198, 201–02, 962 S.W.2d 370, 372 (1998). To prove constructive
possession, the State must establish that the accused exercised “care, control, and
management over the contraband.” Farris v. State, 2024 Ark. App. 188, at 8, 686 S.W.3d
602, 608 Additionally, there must be some evidence that the accused had knowledge of the
presence of the contraband. Id. Control over and knowledge of the contraband can be
inferred from the circumstances, such as 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.
Location of the contraband in close proximity to the accused and the improbable nature of
the accused’s explanations can also be sufficient linking factors to support constructive
4 possession. Id. There is no requirement that all or even a majority of the linking factors be
present to constitute constructive possession of the contraband. Id.
Freeman’s contention that he had no knowledge of the paraphernalia’s location or
the firearm’s existence in the home lacks merit. Freeman told officers that he was the only
person living in the home when the contraband was found, and not only did Freeman tell
officers that the paraphernalia was generally in the dining room, but also, matching bullets
to the firearm were found in Freeman’s nightstand and dresser. While Freeman testified that
his brother owned the home and that he left the ammunition, Freeman also testified that
his brother had not been in the home for five years. The circuit court is not required to
believe a defendant’s self-serving testimony. Hayes v. State, 2024 Ark. App. 347, at 10.
Concerning the firearm, even though Turner testified that Freeman was unaware of the
firearm’s existence in the home, the court was free to also disregard that testimony. In light
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