Cite as 2020 Ark. App. 452 ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document Date: 2021-07-12 14:08:48 Foxit PhantomPDF Version: DIVISION I 9.7.5 No.CR-19-600
Opinion Delivered: September 30, 2020
KERAIG HOUSE APPEAL FROM THE SEBASTIAN APPELLANT COUNTY CIRCUIT COURT, FORT SMITH DISTRICT V. [NO. 66FCR-15-726]
HONORABLE J. MICHAEL STATE OF ARKANSAS FITZHUGH, JUDGE APPELLEE AFFIRMED; MOTION GRANTED
KENNETH S. HIXSON, Judge
This no-merit appeal comes before this court for a second time. Appellant Keraig House
was convicted by a jury of three counts of being a felon in possession of a firearm, and he was
sentenced as a habitual offender to two consecutive forty-year prison terms to be served
concurrently with another forty-year prison term.1 In the first appeal, appellant’s counsel filed
a no-merit brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967),
and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals. However,
in the first appeal, we denied appellant’s counsel’s motion to withdraw and ordered rebriefing
1 In a separate jury trial arising from the same events, Mr. House was convicted of simultaneous possession of drugs and firearms, possession of methamphetamine with intent to deliver, maintaining a drug premises, and possession of drug paraphernalia. For these convictions, Mr. House was sentenced to sixty years in prison. The trial court ordered the sentences in this case to be served concurrently with this sixty-year sentence. We affirmed Mr. House’s convictions in the other case. See House v. State, 2020 Ark. App. 240, 600 S.W.3d 106. because counsel had failed to discuss all the adverse rulings as required by our no-merit rules.
See House v. State, 2020 Ark. App. 241.
Pursuant to our directive in the first appeal, Mr. House’s counsel has now rebriefed the
case and filed a second no-merit brief and motion to withdraw pursuant to Anders and Rule 4-
3(k). In this second no-merit brief, appellant’s counsel has discussed all matters in the record
that might arguably support an appeal, including all the adverse rulings made below, and
provided a statement of why each point raised cannot arguably support an appeal. Mr. House
was provided a copy of his counsel’s brief and notified of his right to file pro se points for
reversal, but he has filed no points. We affirm.
Pursuant to Ark. Code Ann. § 5-73-103(a)(1) (Repl. 2016), it is unlawful for a person
to possess of a firearm if the person has been convicted of a felony. In this case, the parties
stipulated that Mr. House was previously convicted of a felony, so the only issue for the jury
was whether he possessed the three firearms.
The testimony at trial showed that officers with the Fort Smith Police Department
arranged for a confidential informant to buy methamphetamine from Mr. House at his
residence. After the drug buy was complete, the officers obtained a search warrant for
Mr. House’s residence and curtilage.
Mr. House and his wife, Mrs. House, were on the property during the search. While
the officers were inside the residence, Mr. House provided the combination to a safe that was
found to contain a revolver. Mr. House told the police about the gun when he gave them the
combination. Mrs. House told the police that she did not know the combination to the safe.
The police also searched the trunk of a car in Mr. House’s back yard. In the trunk, the police
found a revolver and a pistol. Over Mr. House’s objection as to relevancy and unfair prejudice,
2 the trial court permitted one of the officers to testify that the guns were “kind of concealed,”
with one of them wrapped in a ski mask. Mr. House gave a custodial statement to the police
wherein he admitted that he is the person who had wrapped the guns and put them in the
trunk. According to the officer who conducted the custodial interview, Mr. House admitted
“taking possession of and being responsible for” the guns in the trunk.
In this no-merit appeal, Mr. House’s counsel correctly asserts there could be no
meritorious challenge to the trial court’s denial of his motion for a directed verdict. A motion
for a directed verdict is treated as a challenge to the sufficiency of the evidence, and the denial
of the motion is affirmed if substantial evidence, either direct or circumstantial, supports the
verdict. Friday v. State, 2018 Ark. 339, 561 S.W.3d 318. Substantial evidence is evidence
forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.
Id. In reviewing the sufficiency of the evidence, we view the evidence in the light most
favorable to the State, considering only the evidence that supports the verdict. Rabb v. State,
72 Ark. App. 396, 39 S.W.3d 11 (2001).
Mr. House was charged with three counts of being a felon in possession of a firearm,
and because Mr. House stipulated that he is a convicted felon, the only question for the jury
was whether he possessed the firearms. In Mr. House’s directed-verdict motion, he argued that
there was insufficient evidence of possession. However, the trial court correctly denied the
motion.
Actual, physical possession is not required to prove possession; constructive possession
will suffice and occurs when the accused maintains control or a right to control the contraband.
Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986). Here, there was undoubtedly
substantial evidence that Mr. House constructively possessed all three firearms seized by the
3 police. Mr. House demonstrated control over the gun found in the safe when he gave the
officers the combination and advised them of the presence of the gun before they opened the
safe. And Mr. House admitted to the police that he had been in possession of the two guns
found in the trunk and that he is the person who had put them there. Therefore, any sufficiency
challenge on appeal would be wholly without merit.
Mr. House’s counsel next asserts that there could be no meritorious argument based on
the trial court’s denial of his objection to the officer’s testimony that the guns in the trunk were
partially concealed with a ski mask. Mr. House objected to this evidence arguing that it was
not relevant under Ark. R. Evid. 401 and that any probative value was substantially outweighed
by the danger of unfair prejudice under Ark. R. Evid. 403, and the objection was overruled.
A trial court’s ruling on the admission of evidence will not be reversed unless appellant can
show both an abuse of discretion and prejudice. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547
(2000).
Mr. House’s counsel correctly asserts that the admission of this evidence could not form
the basis of a merit appeal because, even if any error occurred, Mr. House cannot show
prejudice. When evidence of guilt is overwhelming and the error slight, the error is considered
harmless on appeal. Cutsinger v. State, 2017 Ark. App. 647, 536 S.W.3d 134. The record
conclusively shows that Mr. House demonstrated control over all three firearms, and the
evidence of the ski mask resulted in no prejudice.
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Cite as 2020 Ark. App. 452 ARKANSAS COURT OF APPEALS Reason: I attest to the accuracy and integrity of this document Date: 2021-07-12 14:08:48 Foxit PhantomPDF Version: DIVISION I 9.7.5 No.CR-19-600
Opinion Delivered: September 30, 2020
KERAIG HOUSE APPEAL FROM THE SEBASTIAN APPELLANT COUNTY CIRCUIT COURT, FORT SMITH DISTRICT V. [NO. 66FCR-15-726]
HONORABLE J. MICHAEL STATE OF ARKANSAS FITZHUGH, JUDGE APPELLEE AFFIRMED; MOTION GRANTED
KENNETH S. HIXSON, Judge
This no-merit appeal comes before this court for a second time. Appellant Keraig House
was convicted by a jury of three counts of being a felon in possession of a firearm, and he was
sentenced as a habitual offender to two consecutive forty-year prison terms to be served
concurrently with another forty-year prison term.1 In the first appeal, appellant’s counsel filed
a no-merit brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967),
and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals. However,
in the first appeal, we denied appellant’s counsel’s motion to withdraw and ordered rebriefing
1 In a separate jury trial arising from the same events, Mr. House was convicted of simultaneous possession of drugs and firearms, possession of methamphetamine with intent to deliver, maintaining a drug premises, and possession of drug paraphernalia. For these convictions, Mr. House was sentenced to sixty years in prison. The trial court ordered the sentences in this case to be served concurrently with this sixty-year sentence. We affirmed Mr. House’s convictions in the other case. See House v. State, 2020 Ark. App. 240, 600 S.W.3d 106. because counsel had failed to discuss all the adverse rulings as required by our no-merit rules.
See House v. State, 2020 Ark. App. 241.
Pursuant to our directive in the first appeal, Mr. House’s counsel has now rebriefed the
case and filed a second no-merit brief and motion to withdraw pursuant to Anders and Rule 4-
3(k). In this second no-merit brief, appellant’s counsel has discussed all matters in the record
that might arguably support an appeal, including all the adverse rulings made below, and
provided a statement of why each point raised cannot arguably support an appeal. Mr. House
was provided a copy of his counsel’s brief and notified of his right to file pro se points for
reversal, but he has filed no points. We affirm.
Pursuant to Ark. Code Ann. § 5-73-103(a)(1) (Repl. 2016), it is unlawful for a person
to possess of a firearm if the person has been convicted of a felony. In this case, the parties
stipulated that Mr. House was previously convicted of a felony, so the only issue for the jury
was whether he possessed the three firearms.
The testimony at trial showed that officers with the Fort Smith Police Department
arranged for a confidential informant to buy methamphetamine from Mr. House at his
residence. After the drug buy was complete, the officers obtained a search warrant for
Mr. House’s residence and curtilage.
Mr. House and his wife, Mrs. House, were on the property during the search. While
the officers were inside the residence, Mr. House provided the combination to a safe that was
found to contain a revolver. Mr. House told the police about the gun when he gave them the
combination. Mrs. House told the police that she did not know the combination to the safe.
The police also searched the trunk of a car in Mr. House’s back yard. In the trunk, the police
found a revolver and a pistol. Over Mr. House’s objection as to relevancy and unfair prejudice,
2 the trial court permitted one of the officers to testify that the guns were “kind of concealed,”
with one of them wrapped in a ski mask. Mr. House gave a custodial statement to the police
wherein he admitted that he is the person who had wrapped the guns and put them in the
trunk. According to the officer who conducted the custodial interview, Mr. House admitted
“taking possession of and being responsible for” the guns in the trunk.
In this no-merit appeal, Mr. House’s counsel correctly asserts there could be no
meritorious challenge to the trial court’s denial of his motion for a directed verdict. A motion
for a directed verdict is treated as a challenge to the sufficiency of the evidence, and the denial
of the motion is affirmed if substantial evidence, either direct or circumstantial, supports the
verdict. Friday v. State, 2018 Ark. 339, 561 S.W.3d 318. Substantial evidence is evidence
forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.
Id. In reviewing the sufficiency of the evidence, we view the evidence in the light most
favorable to the State, considering only the evidence that supports the verdict. Rabb v. State,
72 Ark. App. 396, 39 S.W.3d 11 (2001).
Mr. House was charged with three counts of being a felon in possession of a firearm,
and because Mr. House stipulated that he is a convicted felon, the only question for the jury
was whether he possessed the firearms. In Mr. House’s directed-verdict motion, he argued that
there was insufficient evidence of possession. However, the trial court correctly denied the
motion.
Actual, physical possession is not required to prove possession; constructive possession
will suffice and occurs when the accused maintains control or a right to control the contraband.
Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986). Here, there was undoubtedly
substantial evidence that Mr. House constructively possessed all three firearms seized by the
3 police. Mr. House demonstrated control over the gun found in the safe when he gave the
officers the combination and advised them of the presence of the gun before they opened the
safe. And Mr. House admitted to the police that he had been in possession of the two guns
found in the trunk and that he is the person who had put them there. Therefore, any sufficiency
challenge on appeal would be wholly without merit.
Mr. House’s counsel next asserts that there could be no meritorious argument based on
the trial court’s denial of his objection to the officer’s testimony that the guns in the trunk were
partially concealed with a ski mask. Mr. House objected to this evidence arguing that it was
not relevant under Ark. R. Evid. 401 and that any probative value was substantially outweighed
by the danger of unfair prejudice under Ark. R. Evid. 403, and the objection was overruled.
A trial court’s ruling on the admission of evidence will not be reversed unless appellant can
show both an abuse of discretion and prejudice. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547
(2000).
Mr. House’s counsel correctly asserts that the admission of this evidence could not form
the basis of a merit appeal because, even if any error occurred, Mr. House cannot show
prejudice. When evidence of guilt is overwhelming and the error slight, the error is considered
harmless on appeal. Cutsinger v. State, 2017 Ark. App. 647, 536 S.W.3d 134. The record
conclusively shows that Mr. House demonstrated control over all three firearms, and the
evidence of the ski mask resulted in no prejudice.
In addition to the two adverse rulings that occurred during the guilt phase of the trial,
there were three adverse rulings during the sentencing phase. Mr. House’s counsel has
adequately addressed these three adverse rulings, and they are as follows.
4 At the sentencing hearing, Mr. House’s mother testified that she had been praying that
the jury would be lenient with her son. The State objected, and the trial court sustained the
objection. A trial court’s decision whether to admit evidence during the sentencing phase is
reviewed for an abuse of discretion. Schreck v. State, 2017 Ark. 39, 510 S.W.3d 750. Here, the
trial court did not abuse its discretion in disallowing this testimony because appellant’s mother’s
prayers were not relevant to sentencing.
The next adverse ruling came during the sentencing phase when Mr. House’s counsel,
during closing argument, mentioned that Mr. House possessed only about a half a gram of
methamphetamine. The State objected, correctly asserting that this was not in evidence, and
the trial court sustained the objection. The trial court is given broad discretion to control
counsel in closing arguments, and we will not reverse such a ruling absent an abuse of discretion.
Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). Closing arguments must be confined to the
evidence introduced during trial, and it is the trial court’s duty to prohibit counsel from making
improper arguments. Id. Because Mr. House’s counsel’s statement referred to a matter not in
evidence, the trial court did not abuse its discretion in prohibiting the comment.
The last adverse ruling occurred when, after the jury sentenced Mr. House to forty years’
imprisonment on each of the three counts, Mr. House requested that none of his sentences run
consecutively.2 The trial court partially denied that request, ordering two sentences to run
consecutively, but concurrent with the remaining sentence as well as the sixty-year sentence in
the separate case.
The question of whether sentences should run consecutively or concurrently lies within
the sole province of the trial court. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997). The
2 In the verdict forms, the jury recommended that all three sentences run consecutively.
5 appellant assumes a heavy burden of demonstrating that the trial court failed to give due
consideration to the exercise of its discretion in the matter of consecutive sentences. Id. We
will remand for resentencing when it is apparent that the trial court did not exercise its
discretion. Id.
It was within the trial court’s sole discretion to decide whether Mr. House’s sentences
should run consecutively or concurrently. It is evident that the trial court exercised its discretion
in that regard because it ordered one of the sentences to run concurrently with the others,
despite the jury’s recommendation that they all run consecutively. Because the trial court
exercised its discretion, there could be no meritorious argument with respect to its sentencing
decision. See Teague, supra.
Having reviewed the record and the no-merit brief presented, we conclude that there
has been compliance with Rule 4-3(k) and that the appeal is without merit. Consequently,
appellant’s counsel’s motion to be relieved is granted, and the judgment is affirmed.
Affirmed; motion granted.
HARRISON and KLAPPENBACH, JJ., agree.
Kezhaya Law PLC, by: Matthew A. Kezhaya, for appellant.
One brief only.