Eugene Hare v. State of Arkansas

2024 Ark. App. 223, 687 S.W.3d 158

• Court: Court of Appeals of Arkansas
• Decided: April 3, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 223 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-23-509

Opinion Delivered April 3, 2024 EUGENE HARE APPELLANT APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT V. [NO. 16JCR-21-998]

STATE OF ARKANSAS HONORABLE CHRISTOPHER THYER, APPELLEE JUDGE AFFIRMED

RITA W. GRUBER, Judge

Eugene Hare appeals the April 5, 2023 Craighead County Circuit Court order

revoking his suspended imposition of sentence (SIS). Hare contends that the circuit court

erred in revoking his SIS because (1) the State failed to prove that the pills seized were a

contraband substance; and (2) no evidence was presented that Hare possessed the

contraband. We affirm.

I. Factual and Procedural History

Hare was charged via information on October 21, 2021, with three separate counts

of felony possession of a controlled substance with purpose to deliver and felony possession

of a controlled substance. Hare was charged as a habitual offender, having five prior felony

convictions—all drug related. On December 16, 2021, Hare pled guilty to one count of felony

possession of a controlled substance with purpose to deliver, and an order was filed sentencing him to sixty months’ SIS; imposing various costs, fines, and fees; and nolle

prossing the remaining three counts. That same day, Hare signed the conditions of his SIS,

which required in relevant part that he not commit a criminal offense punishable by

imprisonment and prohibited him from using, selling, distributing, or possessing any

controlled substance, save for legitimately prescribed medications.

On October 25, 2022, the State filed a petition to revoke (PTR) Hare’s SIS. The PTR

alleged that Hare had violated his SIS by failing to live a law-abiding life, to be of good

behavior, and to not violate any federal, state, or municipal laws when on September 15,

2022, he was found to be in possession of fentanyl, MDMA, Xanax, clonazepam, and

marijuana, all with a purpose to deliver, as well as in possession of drug paraphernalia.1

Thereafter, a revocation hearing was held. At the hearing, the circuit court took

judicial notice of the terms and conditions of Hare’s SIS, the underlying sentencing order,

and the PTR. The only witness to testify was Michael Steele, an investigator with the

Jonesboro Police Department (JPD).

Steele testified that on September 15, 2022, Steele and four other JPD investigators

saw Hare leave a building, appearing to have locked an apartment door. Steele and the other

investigators made contact with Hare, knowing he was “on felony paper.” Steele searched

Hare, locating a key on his person. Steele took the key back to the residence from which

1 There appears to be a scrivener’s error in the PTR, insomuch as there are no further references in the record regarding the possession of drug paraphernalia, Xanax, clonazepam, or marijuana.

2 Steele had seen Hare exit, and the key unlocked the residence’s door. Steele searched the

residence and found “an attic access” in the bathroom. Within the attic, Steele found a large

glass container wrapped in black tape. Inside the container was a rolled-up sock containing

approximately 151 pills. Steele testified that while he is not a certified drug analyst and does

not work for the Arkansas State Crime Laboratory, he had received extensive training in

narcotics-related investigations. Based on that training as well as his experience, Steele

believed the pills to be ecstasy because they were multicolored with a figure stamped on them,

but no numbers or letters, which is usually done to identify “MDMA, ecstasy-style” pills by

their maker. The pills were then seized and field tested.

Hare’s counsel objected to Steele’s testifying about the field-testing results, arguing

that such testimony was inadmissible. The State responded that the testimony went to the

weight of the evidence, and while such testimony might be impermissible under a guilty-

beyond-a-reasonable-doubt standard, it was permissible under the lower preponderance-of-

the-evidence standard in a revocation proceeding. The circuit court ruled that it would

permit Steele to testify and determine later whether the testimony should be disregarded

with respect to the ultimate decision.

Steele resumed his testimony. He stated that the pills field tested positive for fentanyl

and that Hare was then arrested and taken into custody. Steele explained that it is not

uncommon for “man-made pills” such as ecstasy to be pressed or cut with something else,

such as fentanyl. Before leaving the scene, a female arrived. She and Hare argued because

she wanted to get her “stuff out,” and Hare told her he did not want her “in his residence”

3 and requested his key back. That interaction, along with Hare’s having a key to the residence

and locking it upon leaving, as well as the presence of male clothing inside the residence

confirmed for Steele that Hare lived in the residence where the contraband was located.

Steele was asked if he was aware that the address of the residence at which the contraband

was located was not the address to which Hare was paroled; Steele responded that he was

not.

Both parties gave closing arguments. Hare argued that it was uncertain what the pills

were, and his possession of a key to the residence did not mean that he knew the pills were

in the attic or that he had ever possessed them. The State responded that the key was found

on Hare, who had been being surveilled and seen leaving the residence shortly before the

pills were found. The State emphasized that Hare has an extensive criminal history, was on

parole for similar type charges, and none of Steele’s testimony had been negated. The State

argued further that how the pills were packaged and where they were found—rolled up in a

sock and placed in an attic—coupled with the field test and Steele’s expertise was sufficient

to meet the State’s burden of proof for the PTR allegations.

Hare’s counsel argued that the field test did not meet the scientific-certainty and

reliability requirements mandated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993). The circuit court noted this was an evidentiary objection, and the rules of

evidence did not apply in a revocation hearing. The court then ruled that the field-test

testimony was admitted, and Hare’s objection went to the weight of the evidence rather than

its admissibility. The court further ruled that it was more likely than not that the pills were

4 a controlled substance due to where they were found and the field-test results. The court

then found by a preponderance of the evidence that Hare had violated the terms and

conditions of his SIS. On April 5, 2023, pursuant to the revocation of Hare’s SIS, an order

was entered sentencing Hare to 120 months’ imprisonment in the ADC. This timely appeal

followed.

II. Standard of Review

In revocation proceedings, the circuit court must find by a preponderance of the

evidence that the defendant inexcusably violated a condition of SIS. Webb v. State, 2015 Ark.

App. 257, at 6, 460 S.W.3d 820, 824 (citing Ark. Code Ann. § 16-93-308(d)). Evidence that

may be insufficient to convict can be sufficient to revoke due to the State’s lower burden of

proof in a revocation proceeding. Id. A circuit court’s finding in revocation proceedings will

not be reversed on appeal unless it is clearly against the preponderance of the evidence. Id.

Because the preponderance of the evidence turns on questions of credibility and weight to

be given testimony, we defer to the superior position of the circuit court to decide these

matters. Id.

III. Discussion

A. The Contraband

Hare first contends that the State failed to produce a crime-lab report or witness to

verify that the pills seized were a contraband substance. Hare argues that this failure was a

violation of his Sixth Amendment right to confront adverse witnesses. The State responds

that to the extent that Hare’s argument relies on his due-process right to confront adverse

5 witnesses, he failed to present that argument to the circuit court and is barred from raising

it for the first time on appeal.

The State is correct. Hare’s argument to the circuit court was that Steele’s testimony

regarding the results of the field testing was inadmissible. Hare did not argue that the lack

of a crime-lab report was a violation of his Sixth Amendment constitutional right to confront

adverse witnesses, and we will not address new or different arguments raised for the first

time on appeal. See, e.g., Foster v. State, 2023 Ark. App. 157, at 6, 661 S.W.3d 743, 747

(appellate courts will not address arguments raised for the first time on appeal); see also Randle

v. State, 2023 Ark. App. 234, at 6, 664 S.W.3d 476, 480 (appellants cannot change the

grounds for their objection or the nature of such arguments on appeal).

Even if the issue was preserved, Hare’s argument was an evidentiary one, not a

constitutional one, and the rules of evidence are not strictly applicable in revocation cases.

See Ark. R. Evid. 1101(b)(3); Randle, 2023 Ark. App. 234, at 6, 664 S.W.3d at 480. To the

extent that Hare takes issue with the way the pills were determined to be contraband, i.e.,

through Steele’s testimony and not a crime-lab report, Steele was cross-examined by Hare’s

counsel, and the argument goes to the weight and credibility of Steele’s testimony, which is

a determination deferred to the circuit court. See Webb, supra. Moreover, a positive field test

is sufficient evidence to support a revocation for possession of a controlled substance. See,

e.g., Crouse v. State, 2012 Ark. 442, at 2–3. Thus, we are unpersuaded by Hare’s first point

on appeal.

B. Possession

6 Hare next contends that there was no evidence that he possessed the contraband. He

argues that the State failed to show that he constructively possessed the contraband, which

was discovered in a jointly occupied premises.2 The State responds that a preponderance of

the evidence supports the revocation, even if Hare constructively possessed the contraband

in a jointly occupied premises.

1. Constructive possession

In drug cases, it is not necessary that the State prove literal, physical possession of the

contraband; possession of contraband can be proved by constructive possession, which is the

control or right to control the contraband. Szczerba v. State, 2017 Ark. App. 27, at 6–7, 511

S.W.3d 360, 365. Constructive possession may be established by circumstantial evidence. Id.

at 7, 511 S.W.3d at 365. Constructive possession can be inferred where the contraband is

found in a place immediately and exclusively accessible to the defendant and subject to his

control. Id. The improbable nature of the accused’s explanations can be considered a

sufficient linking factor to support constructive possession. Terry v. State, 2018 Ark. App.

435, at 5, 559 S.W.3d 301, 304.

In support of his constructive-possession argument, Hare asserts that the premises he

was seen leaving is not the address he had on file with the parole office and that another

person arrived on scene who also had a key to the premises. The State responds that there

2 The parties conflate constructive possession with joint occupancy, which, despite having similar elements, are two different doctrines.

7 were sufficient linking factors to find that Hare constructively possessed the contraband. We

agree.

Hare locked the apartment with the key found in his possession, which was then used

to enter the apartment. No one other than Hare was seen exiting the apartment; no one else

was in the apartment when it was searched; and male clothing was in the apartment. The

contraband was found in a rolled-up sock in a glass container in the attic, a location unlikely

to be accessed by anyone other than the occupant. See Dye v. State, 2018 Ark. App. 545, at

7, 564 S.W.3d 299, 304 (affirming a conviction for possession of methamphetamine based

in part on the appellant’s possession of a key that opened the front door); Szczerba v. State,

2017 Ark. App. 27, at 8–9, 511 S.W.3d at 365–66 (a criminal-sufficiency appeal involving

the constructive possession of contraband where this court held that there was substantial

evidence that the appellant had knowledge of the contraband based in part on appellant’s

possession of a key to a locked file cabinet in which some of the contraband was located).

Hare demonstrated his dominion over the apartment when he denied the female

entry and demanded return of a key. The only “evidence” at the hearing that the apartment

was not Hare’s consisted of Steele’s testimony that he was not aware that the apartment

address was not the address to which Hare had been paroled. Steele’s testimony evidences a

lack of knowledge regarding Hare’s parole address, which is not the same as affirmative

knowledge that Hare did not reside at the apartment. Thus, we are unpersuaded by Hare’s

constructive-possession argument.

2. Joint occupancy

8 Hare also argues that the apartment where the contraband was located was jointly

occupied. In joint-occupancy cases, the State must prove two elements: (1) that the accused

exercised care, control, or management over the contraband and (2) that the accused knew

the matter possessed was contraband. Szczerba, 2017 Ark. App. 27, at 7, 511 S.W.3d at 365.

When there is joint occupancy of the premises where the contraband is found, some

additional factor must be present to link the accused to the contraband. Id., 511 S.W.3d at

365. This control and knowledge can be inferred from circumstances, such as the proximity

of the contraband to the accused, whether the contraband was in plain view, and ownership

of the property where the contraband is found. Id. Control can also be inferred from the

“accused’s suspicious behavior, . . . the improbability that anyone other than the appellant

placed the contraband in the location, . . . and the improbable nature of the appellant’s

explanations.” Block v. State, 2015 Ark. App. 83, at 6, 455 S.W.3d 336, 340 (internal citations

omitted).

In support of his joint-occupancy argument, Hare points out that another person

arrived on scene who also had a key to the apartment. The State responds that as a threshold

matter, Hare did not make a joint-occupancy argument to the circuit court; thus, it is not

evident that the residence in which the contraband was discovered was, in fact, jointly

occupied. The State is correct that Hare did not raise a joint-occupancy argument to the

circuit court. While generally this court will not address arguments raised for the first time

on appeal, this argument challenges the sufficiency of the evidence, which may be raised for

the first time on appeal. Myers v. State, 2014 Ark. App. 720, at 3, 451 S.W.3d 588, 590.

9 The State further responds that Hare offered no evidence that the woman who arrived

on scene—ostensibly with a key to the apartment—actually occupied the premises. The State

argues that Hare offered nothing to demonstrate that the woman’s mere access to Hare’s

apartment established joint occupancy or implicated her in the possession of the contraband.

The State further argues that this court should reject Hare’s arguments because they are

unsupported by convincing argument or sufficient citation to legal authority.

The State must prove only that Hare had knowledge regarding the contraband if the

premises was, in fact, jointly occupied, which Hare failed to establish. See Foster v. State, 2015

Ark. App. 412, at 5, 467 S.W.3d 176, 180 (appellant’s assertion that the State was required

to prove he knew the matter possessed was contraband was mistaken because the State is

required to do so only in joint-occupancy cases, which was not the case where the sole

occupant of the vehicle was appellant). Again, Hare was the only person seen leaving the

apartment; no one else was found within the apartment; and male clothing was found in the

apartment. The fact that someone other than Hare may have had access to the premises does

not establish that the premises was jointly occupied. See, e.g., Polk v. State, 348 Ark. 446, 73

S.W.3d 609 (2002) (supreme court held that a single occupant—the appellant—in a borrowed

car or car owned by another was only subject to the general inquiry for constructive

possession and was not entitled to the benefit of the increased inquiry afforded those in a

joint-occupancy situation). Thus, we are unpersuaded by Hare’s joint-occupancy argument.

The evidence here was sufficient to demonstrate that it was more likely than not that

the pills located were contraband, and Hare constructively possessed the contraband in a

10 premises that was not jointly occupied. Accordingly, we hold that the circuit court did not

err in revoking Hare’s SIS.

Affirmed.

ABRAMSON and HIXSON, JJ., agree.

Terry Goodwin-Jones, for appellant.

Tim Griffin, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.