Jeffery Keith Armer v. State of Arkansas

2022 Ark. App. 163

• Court: Court of Appeals of Arkansas
• Decided: April 13, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 163 ARKANSAS COURT OF APPEALS DIVISION II No. CR-21-502

JEFFERY KEITH ARMER Opinion Delivered April 13, 2022 APPELLANT APPEAL FROM THE BOONE COUNTY CIRCUIT COURT V. [NO. 05CR-20-327]

STATE OF ARKANSAS HONORABLE JOHN R. PUTMAN, APPELLEE JUDGE

AFFIRMED

STEPHANIE POTTER BARRETT, Judge

Jeffery Armer was convicted by a Boone County jury of simultaneous possession of

drugs and firearms, possession of methamphetamine, and two counts of possession of drug

paraphernalia—one count for having paraphernalia to ingest controlled substances and one

count for having paraphernalia used to pack or repack controlled substances. He was

sentenced as a habitual offender to a total of ninety-eight years in prison. On appeal, Armer

argues that the circuit court erred in denying his motions for directed verdict. We affirm.

At trial, Officer Jeffery Baumgardner testified that he was assisting Investigator Gene

Atwell of the Boone County Sheriff’s Department on October 26, 2020, in the investigation

of the theft of two firearms from a vehicle in the summer of 2020 at Beaver Lake, and leads

were developed that led them to Armer’s residence. According to Baumgardner, when they

arrived at Armer’s house, Armer’s son answered the door and invited them inside when they asked if Armer was home. Armer came out of his bedroom into the living room, and the

officers began a conversation with him. Armer unexpectedly turned and walked back into

his bedroom during this conversation with the officers, who followed Armer into the

bedroom and continued the conversation. Baumgardner expected Armer to sit on the bed,

but instead, Armer walked to the far side of the bed, sat directly on a green pillow, and placed

his right hand under the pillow. Baumgardner testified that Armer’s actions caused him to

be concerned for officer safety, and when he asked Armer if he had anything illegal, Armer

said yes. As Armer stood up, the officers saw a firearm, which was later determined to be

loaded, under the pillow Armer had been sitting on, and Armer had his hand on the weapon.

The officers removed the gun from Armer’s possession, and he was placed in restraints and

removed from the bedroom by Baumgardner.

Investigator Atwell’s testimony regarding the events leading up to the discovery of the

loaded gun echoed Baumgardner’s testimony. After Baumgardner removed Armer from the

bedroom, Atwell cleared the loaded gun and searched the area where Armer had been to

ensure there were no more weapons. Atwell searched the area where the firearm had been

found; in a closet approximately three feet from the bed, he found a dresser with the drawers

open, and in the top drawer he found baggies, syringes, pocketknives, a set of scales, pipes

used for ingesting narcotics, and methamphetamine. The rock-like substance found in the

dresser drawer in Armer’s bedroom was determined by a forensic drug chemist at the

Arkansas State Crime Laboratory to be 1.4883 grams of methamphetamine.

2 Michael Tramell, a criminal investigator with the Boone County Sheriff’s Office,

interviewed Armer at the sheriff's office on October 26. The interview was videotaped, and

a copy of the video was entered into evidence and played for the jury. In the interview,

Armer admitted to Tramell that he had borrowed a pistol from someone in Huntsville to

scare people who had been stealing his belongings, but he denied knowing the gun was

stolen. Armer said that he thought his son had let the officers into the house, that he only

realized the officers were there when he walked into the living room, and that when they all

three went into the bedroom from the living room, he sat down on the bed and tried to

cover the gun. Armer denied that he was trying to hurt anyone, he just did not want the

officers to see the gun because he did not want to get caught with it in his possession. When

Tramell questioned Armer about the methamphetamine found in the house, Armer told

him, “[H]onestly, I thought I’d cleaned everything out when my wife came around . . . . I’m

trying to clean up, you know what I mean?” When asked how long he had had the

methamphetamine, Armer told Tramell it had to have been “a couple of weeks anyway.”

When Tramell asked Armer if there was probably some drugs or paraphernalia in his house,

Armer stated, “I mean, there could have been, yes,” and he admitted that he wanted his wife

to believe that he was “getting cleaned up.” However, Armer claimed that he did not know

there was methamphetamine in the bedroom, stating that he had flushed “quite a bit” before

he had previously come to the sheriff’s office to speak with Tramell. When Tramell asked

when he had last sold meth, Armer said it had been maybe a month earlier. He told Tramell

that he just did it “to keep [him]self high” and that it had been three or four days since he

3 had last used meth. Armer told Tramell that he honestly did not know the meth was in the

house, that he was excited about trying to get his family back, and that maybe he had

overlooked the meth. Investigator Atwell also questioned Armer about the meth found in

the dresser drawer in his bedroom during the taped interview. Armer told Atwell that it

should not have been there and that he thought he had thrown everything out because he

was “trying to do right.”

The State rested its case in chief after Trammell’s testimony. Armer moved for

directed verdicts on all charges against him. With regard to possession of methamphetamine,

Armer argued that the State had to prove that he knowingly possessed methamphetamine,

and it failed to do so because the methamphetamine was found in a room Armer shared

with another person, and he was not in exclusive control of the methamphetamine.1 Armer

argued that during his interview, he stated that he was not even aware there was

methamphetamine in the house. The State countered that Armer constructively possessed

the methamphetamine. Armer also argued that even though he possessed the firearm,

because the State failed to prove he possessed the methamphetamine, the charge of

simultaneous possession of drugs and firearms must also fail. The State again contended

that the jury could find that Armer constructively possessed the methamphetamine. As to

the two counts of possession of drug paraphernalia, Armer argued that the State failed to

show that he knowingly possessed paraphernalia with the purpose “to use drug paraphernalia

1 Although Armer made a joint-possession argument below, he has abandoned that argument on appeal.

4 to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce,

process, prepare, test, analyze, pack, re-pack, store, contain, or conceal a controlled substance

that is methamphetamine or cocaine” or that he possessed any paraphernalia “with the

purpose to use, to inject, ingest, inhale or otherwise introduce into the human body a

controlled substance.” Armer’s motions were denied.

Armer rested without calling any witnesses. He renewed his motions for directed

verdict, which were again denied. The jury returned guilty verdicts for simultaneous

possession of drugs and firearms, possession of methamphetamine, and the two counts of

possession of drug paraphernalia.

A motion for directed verdict at a jury trial is a challenge to the sufficiency of the

evidence. Baker v. State, 2019 Ark. App. 515, 588 S.W.3d 844. In reviewing a challenge to

the sufficiency of the evidence, this court determines whether the verdict is supported by

substantial evidence, which is evidence that is forceful enough to compel a conclusion one

way or the other beyond speculation or conjecture. Id. The evidence is viewed in the light

most favorable to the verdict, and only evidence supporting the verdict will be considered.

Id. Circumstantial evidence may provide a basis to support a conviction if it is consistent

with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id.

Whether evidence excludes every other hypothesis is left to the jury to decide. Id. The

credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free

to believe all or part of any witness’s testimony and may resolve questions of conflicting

testimony and inconsistent evidence. Id.

5 Armer’s arguments all center on his claim that he did not know the

methamphetamine and drug paraphernalia were in his house. He contends that the State

offered no evidence that he knew about the methamphetamine and drug paraphernalia, only

evidence of constructive possession, and that knowledge and possession are two separate

elements that must be proved by direct or circumstantial evidence.

When possession of contraband is an element of the offense, the State is not required

to prove literal physical possession—constructive possession is sufficient. Braswell v. State,

2022 Ark. App. 102. Constructive possession can be implied when the contraband was

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

control. Id. To prove constructive possession, the State must establish that the defendant

exercised care, control, and management over the contraband. Id. The 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.

Armer cites Garner v. State, 2020 Ark. App. 101, 594 S.W.3d 145, in support of his

argument that the State failed to prove he had knowledge of the methamphetamine and

drug paraphernalia. Garner is distinguishable in several respects. First, Garner involved a

jointly occupied dwelling, and the contraband was found in a bedroom that was not

designated as Garner’s bedroom. There is no argument made on appeal in the present case

that the premises (Armer’s bedroom where the drugs and paraphernalia were found) was

jointly occupied. Armer acted strangely when interacting with the officers, leaving the living

6 room in the middle of a conversation to return to his bedroom and sit on a pillow in an

attempt to hide the gun. Unlike the circumstances in Garner, the drugs and paraphernalia

in the present case were found in an open dresser drawer in a closet approximately three feet

from where Armer had been sitting on the bed. And although Armer claimed not to have

known that the methamphetamine and paraphernalia were in the house, he stated in his

taped interview that he thought he had cleaned everything out, that he had had the

methamphetamine for a couple of weeks, that it had been about a month since he had sold

any methamphetamine, that he sold it just to keep himself high, and that he had last used

meth three or four days before. Armer admitted there could have been some drugs and

paraphernalia in the house that he had overlooked, but he thought he had thrown everything

out because he was “trying to do right.” Viewing the evidence in the light most favorable to

the State, Armer’s knowledge of, and control over, the contraband found in his residence

can be inferred under these circumstances. The jury, as the finder of fact, was not required

to believe Armer’s assertion that he did not know the methamphetamine and drug

paraphernalia were in his house.

Armer also argues that his conviction for simultaneous possession of drugs and

firearms cannot stand if his conviction for possession of methamphetamine is reversed.

Because we affirm the conviction for possession of methamphetamine, Armer’s conviction

for simultaneous possession of drugs and firearms is also affirmed because Armer makes no

argument that he did not possess the firearm.

Affirmed.

7 HARRISON, C.J., and WHITEAKER, J., agree.

Tara Ann Schmutzler, for appellant.

Leslie Rutledge, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee.