Newton v. State

2011 Ark. App. 190, 382 S.W.3d 711, 2011 Ark. App. LEXIS 211
CourtCourt of Appeals of Arkansas
DecidedMarch 9, 2011
DocketNo. CA CR 10-988
StatusPublished
Cited by6 cases

This text of 2011 Ark. App. 190 (Newton v. State) 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.

Bluebook
Newton v. State, 2011 Ark. App. 190, 382 S.W.3d 711, 2011 Ark. App. LEXIS 211 (Ark. Ct. App. 2011).

Opinion

JOHN B. ROBBINS, Judge.

| Appellant Keith Laron Newton was convicted in a jury trial of possession of cocaine with intent to deliver, possession of drug paraphernalia, and compounding. He was sentenced to concurrent prison terms of thirty, three, and five years. On appeal, Mr. Newton challenges the sufficiency of the evidence to support each of his convictions. He also argues that the trial court erred in denying his motion for continuance that he made on the day of trial. We affirm.

We consider sufficiency of the evidence before addressing other alleged trial errors. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a | {¡conclusion and pass beyond suspicion and conjecture. Id. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). In considering the evidence, we will not weigh the evidence or assess credibility, as those are questions for the finder of fact. Woods v. State, 363 Ark. 272, 213 S.W.3d 627 (2005).

Officer Thomas Miller of the Warren Police Department testified that on February 2, 2010, he received a report of some unlawful activity in a backyard at the corner of Rock and Kelly streets. In response to the report, officers were dispatched to the area.

Officer Terrance Moore was sent to the scene at the corner of Rock and Kelly, and when he arrived he observed five people in the yard and a black truck. Officer Moore indicated that the people were ordered to the ground, and that everyone except Keith Newton complied. Mr. Newton ran down the street and two officers chased him. Meanwhile, other officers conducted an inventory search of the black truck, which Mr. Newton had been driving that day, and the truck was towed.

Officer Timothy Nichols testified that he chased Mr. Newton in his patrol car, while Officer Michael Warren chased appellant on foot. Officer Nichols indicated that he caught up with Mr. Newton and Officer Warren, who were engaged in a confrontation. Officer Nichols testified that Mr. Newton was holding a white paper bag in his left hand. Officer Warren was telling Mr. Newton to get on the ground, but Mr. Newton refused. Due to |sMr. Newton’s refusal to cooperate, Officer Nichols sprayed him with pepper spray. At that time, Mr. Newton dropped the paper bag and the police were able to handcuff and arrest him. Officer Nichols testified that he took possession of the paper bag and it contained four baggies of a white, rock-like substance. On the ground near the paper bag was a set of digital scales. Upon searching Mr. Newton, Officer Nichols found $2034 in cash in Mr. Newton’s front pants pocket. The contents of the white paper bag were transported to the police station and then sent to the crime lab, where a chemist confirmed the presence of more than fifty-two grams of a cocaine-based substance. When searching Mr. Newton’s truck, the police found $3288 in cash.

Officer Warren testified about his pursuit of Mr. Newton and their confrontation. Officer Warren stated that while he was chasing Mr. Newton he saw something in his left hand. When Officer Warren caught up with Mr. Newton, he observed a white paper bag and a dark-colored square object in Mr. Newton’s left hand, and Mr. Newton began swinging at the officer with his right hand. Officer Warren testified:

As he swung at me and I told him to get on the ground, I struck him with my asp baton on the left leg, which had no effect on him. That’s when he made the statement that he couldn’t go down like this. He said he had five thousand dollars if I would just turn around and let him go. I gave him another command to get on the ground, then he swung at me again. I struck him with my asp baton again, which had no effect. He used the phrase five G’s, which I took to mean five thousand dollars.

Officer Warren testified that when Mr. Newton started to come at him again, Mr. Newton was pepper sprayed by Officer Nichols and dropped the items he had been carrying in his left hand.

14Mr. Newton testified on his own behalf, and he said that on the day at issue he was afraid because “the officer got out, waving guns and I didn’t know what was going on.” Mr. Newton testified that he and his wife had recently deposited their income tax refund of more than $6000 into their bank account. Mr. Newton stated that on February 2, 2010, he did not possess drugs.

Mr. Newton’s first argument on appeal is that there was insufficient evidence to support his conviction for possession of cocaine with intent to deliver, which is made criminal by Ark.Code Ann. § 5-64-401 (Supp.2009). Mr. Newton acknowledges that both Officers Nichols and Warren testified that they observed him drop a white bag that was later found to contain a large amount of a cocaine-based substance. However, Mr. Newton contends that both of these witnesses were biased against him. While Officer Warren testified that Mr. Newton swung at him, this was not contained in Officer Warren’s report. Thus, Mr. Newton asserts that Officer Warren acted excessively in twice striking him with his baton. Moreover, Mr. Newton asserts that Officer Nichols’s action of pepper spraying him was inappropriate because at that time Mr. Newton was no longer running and was not fighting with the officers. Mr. Newton argues that because of Officer Nichols’s and Officer Warren’s bias, the jury should have disregarded their testimony. Appellant asserts that without the testimony of these witnesses, the jury was left to speculation and conjecture in reaching its decision that he possessed cocaine with intent to deliver.

|KMr. Newton’s first argument is unavailing. While he questions the credibility of the arresting officers, that is a matter for the jury’s consideration. See Woods, supra. Where the testimony is conflicting, we do not pass upon the credibility of the witnesses and have no right to disregard the testimony of any witness after the jury has given it full credence, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008). Moreover, a jury is not required to believe the defendant’s version of events because he is the person most interested in the outcome of the trial. See Springston v. State, 61 Ark.App. 36, 962 S.W.2d 836 (1998).

In this case the jury was free to credit the testimony of Officers Nichols and Warren, and both officers testified that Mr. Newton ran from the police and attempted to avoid arrest. Evidence of flight to avoid arrest may be considered by the jury as corroborative of guilt. Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). Upon being apprehended, Mr.

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Bluebook (online)
2011 Ark. App. 190, 382 S.W.3d 711, 2011 Ark. App. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newton-v-state-arkctapp-2011.