Hembey v. State

2016 Ark. App. 482

• Court: Court of Appeals of Arkansas
• Decided: October 19, 2016
• Docket: CR-16-186
• Status: Published

Opinion

Cite as 2016 Ark. App. 482

ARKANSAS COURT OF APPEALS DIVISION IV No. CR-16-186

Opinion Delivered October 19, 2016 DUSTIN B. HEMBEY APPELLANT APPEAL FROM THE PIKE COUNTY CIRCUIT COURT [NO. 55CR2014-71.1] V. HONORABLE TOM COOPER, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

PHILLIP T. WHITEAKER, Judge

Appellant Dustin Hembey was arrested and charged with one count of being a felon

in possession of a firearm. He exercised his right to trial by a jury. A Pike County jury

convicted him of that charge and sentenced him as a habitual offender to thirty years in the

Arkansas Department of Correction. For his sole point on appeal, he argues that there was

insufficient evidence that he possessed the firearm for purposes of the statute. We affirm.

The facts presented to the trial court are fairly straightforward. On September 13,

2014, Pike County Sheriff’s Deputy Shaun Furr and an EMT responded to Hembey’s home

to provide medical care to his grandmother.1 Hembey told Deputy Furr that his grandmother

1 We note at the outset that Hembey’s abstract is not compliant with our rules of appellate procedure. Rule 4-2(a)(5)(B) of the Rules of the Supreme Court and Court of Appeals requires that the first person (“I”) rather than the third person (“He or She”) be used in abstracting testimony. Here, while appellate counsel did abstract the testimony in the first person, he did so from the point of view of the appellant not the witness testifying. This made it difficult to ascertain who the actors and speakers were and resulted in an abstract that was somewhat confusing. However, we do not find the abstract to be so deficient that the Cite as 2016 Ark. App. 482 had fallen, that he put her to bed, and that he had called 911. While at the residence, Deputy

Furr observed Hembey exhibiting unusual behavior. Deputy Furr noticed that Hembey was

picking things up and moving them. Due to the nature of the call, Deputy Furr called

Detective Kinsler for backup and secured the scene. Deputy Furr and Hembey then waited

outside for Detective Kinsler to arrive. While awaiting Detective Kinsler’s arrival, Deputy

Furr asked Hembey to sign a voluntary search and statement form. He agreed. After

Detective Kinsler arrived, Detective Kinsler advised Hembey of his Miranda rights and

confirmed his consent to search. A search of the home revealed a .22-caliber rifle and two

BB guns leaning against a chest of drawers in a back bedroom. A box of .22-caliber

ammunition was located on the night stand.2 Hembey admitted that the bedroom where

these items were discovered was his bedroom and that the rifle was his, but claimed he was

allowed to possess it. In addition to this evidence, the State introduced evidence of Hembey’s

prior felony conviction and then rested.

At the close of the State’s case, Hembey moved for a directed verdict, arguing that the

State had failed to prove possession of the firearm. The trial court denied the motion. The

defense did not put on any evidence and, after resting, renewed its directed-verdict motion.

The court again denied his motion, and the jury returned a guilty verdict. Hembey appeals

merits could not be reached and, thus, do not order rebriefing. See Ark. Sup. Ct. R. 4-2(b)(3) (2015). 2 Various other caliber ammunition and some spent cartridges were also found in the bedroom.

2 Cite as 2016 Ark. App. 482

the conviction, arguing that the trial court erred in denying his directed-verdict motions

because there was insufficient evidence that he possessed the firearm in question.

On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of

the evidence. Foster v. State, 2015 Ark. App. 412, 467 S.W.3d 176; Bustillos v. State, 2012

Ark. App. 654, 425 S.W.3d 44. We will affirm the circuit court’s denial of a motion for

directed verdict if there is substantial evidence, either direct or circumstantial, to support the

circuit court’s ruling. Bustillos, supra. Substantial evidence is evidence forceful enough to

compel a conclusion one way or the other beyond suspicion or conjecture. Id. Furthermore,

this court views the evidence in the light most favorable to the circuit court’s ruling, and only

evidence supporting the ruling will be considered. Id.

Here, Hembey argues that the State failed to prove that he had knowledge of the

prohibited weapon. More specifically, he argues there was no evidence that he knew the

firearm was present in the bedroom or that the rifle was a firearm and not a BB gun. In

support of his argument, he notes that the firearm was mixed amongst other pellet guns and

that Detective Kinsler testified that the rifle looked like a BB gun. However, he did not make

that argument to the trial court in his motion for a directed verdict as he was required to do

to preserve this issue for appeal. Ark. R. Crim. P. 33.1(c). The reason underlying this rule

is that, when specific grounds are stated and the proof is pinpointed, the trial court can either

grant the motion or allow the State to reopen its case and supply the missing proof. Matar v.

State, 2016 Ark. App. 243, at 4, 492 S.W.3d 106, 109. A further reason that the motion must

be specific is that the appellate court cannot decide an issue for the first time on appeal and

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cannot afford relief that is not first sought in the trial court. Id. Thus, we do not decide this

issue.

Hembey also argues that the State failed to prove actual possession, constructive

possession, or joint possession coupled with knowledge of the firearm’s existence. He notes

that there was no evidence presented that he had held, touched, or moved the firearm, or that

he even knew the firearm existed. He further highlights the testimony that indicated other

persons—including nurses, caregivers, relatives, and friends—had access to the location where

the gun was found.

Here, we need not delve too deeply into the arguments or the law of actual,

constructive, or joint possession due to the facts presented to the circuit court. Detective

Kinsler testified that Hembey admitted owning the gun but claimed he was allowed to possess

it. The gun and the ammunition for it were found in Hembey’s bedroom. Appellate counsel

acknowledges Detective Kinsler’s testimony regarding the ownership of the rifle but argues

that this admission should not be considered because it was produced during cross-

examination and not in the State’s case-in-chief. He contends that to consider such evidence

would relieve the State of its constitutional burden to present sufficient proof of the elements

in violation of Hembey’s right to due process. This argument was never presented below, and

he cites no convincing authority that, when considering a motion for directed verdict, the trial

court may consider evidence presented only by the State in making its determination. We do

not address issues not raised and ruled on by the trial court, nor arguments not well developed

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or supported by convincing authority. See Stewart v. State, 2010 Ark. App. 9 at 3, 373 S.W.3d

387, 389–90.

Viewing the evidence in the light most favorable to the State as we must do, we hold

that Hembey’s admission to owning the firearm and his access to it is sufficient evidence to

support his conviction for possession of a firearm; therefore, we affirm.

Affirmed.

GRUBER and HOOFMAN, JJ., agree.

J. Randle Smolarz, for appellant.

Leslie Rutledge, Att’y Gen., by: Ashley Argo Priest, Ass’t Att’y Gen., for appellee.