Powell v. State

427 S.W.3d 782, 2013 Ark. App. 322, 2013 WL 2099817, 2013 Ark. App. LEXIS 335
CourtCourt of Appeals of Arkansas
DecidedMay 15, 2013
DocketNo. CA CR 12-743
StatusPublished
Cited by4 cases

This text of 427 S.W.3d 782 (Powell 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
Powell v. State, 427 S.W.3d 782, 2013 Ark. App. 322, 2013 WL 2099817, 2013 Ark. App. LEXIS 335 (Ark. Ct. App. 2013).

Opinions

RITA W. GRUBER, Judge.

1 iWalter Powell III was convicted in a jury trial for possession of cocaine with intent to deliver and possession of drug paraphernalia. He was sentenced as a habitual offender to a total of 480 months’ imprisonment and $8000 in fines. He raises four points on appeal. In his first three points, he contends that the trial court erred in determining that police had probable cause to stop his car, that the prolonged detention was legal and valid, and that he freely and voluntarily consented to the search of his car.1 In his final point, he contends that the evidence was not sufficient to support the convictions. We affirm.

The prohibition against double jeopardy requires that we review the sufficiency of evidence before we examine trial error. Stewart v. State, 2010 Ark. App. 9, 373 S.W.3d 387. [gin a challenge to the sufficiency of the evidence, we consider only the evidence supporting the verdict, including any evidence that was erroneously admitted. Id. For a criminal conviction, we review the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. Id. Substantial evidence is evidence that induces the mind to go beyond mere suspicion or conjecture and that is of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. Id. We defer to the finder of fact on matters of witness credibility. Id. Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. McKenzie v. State, 362 Ark. 257, 208 S.W.3d 173 (2005).

Sufficiency of the Evidence

On appeal, Powell challenges the jury’s finding that he possessed more than twenty-eight grams of cocaine, that he possessed it with intent to deliver, and that the scale found in his car was drug paraphernalia. Under the statute in effect at the time of these acts, it was unlawful “for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.” Ark.Code Ann. § 5-64 — 401(a) (Supp.2009). An element of subsection (a)(l)(B)(i)-(ii) was that the substance’s “aggregate weight, including an adulterant or diluent” be twenty-eight or more but less than two hundred grams. Ark.Code Ann. § 5-64-401 (Supp.2009). The definition of drug paraphernalia included “[a] scale or balance used, intended for use, or designed for use in weighing or measuring a controlled substance.” Ark. Code Ann. § 5-64-101(14)(B)(v) (Supp. 2009). Prior convictions relating [sto a controlled substance and the object’s proximity to the controlled substance were factors relevant to a determination that an object was drug paraphernalia. Ark.Code Ann. § 5-64-101(14X0 (Supp.2009).

The events that led to the charges against Powell began with a traffic stop of his car the afternoon of March 7, 2011, by Officer Joe Warren of the Rogers Police Department’s narcotics unit. A bag of cocaine and a digital scale were found in a search of the car subsequent to the stop. Felisha Lackey of the state crime lab testified that the weight of the substance submitted in this case was 32.597 grams of cocaine, hydrochloride, and levamisole. She stated that the weight was for the cocaine and the cutting agent together and that no “quantitation test” had been done specifically for cocaine. We hold that her testimony constituted substantial evidence to support the jury’s finding that Powell possessed more than twenty-eight grams of cocaine, by aggregate weight, which is all that the statute requires.

Police officers testified that the scale in Powell’s car was recovered along with the cocaine; that the quantity of cocaine was larger than typical for personal use; and that paraphernalia for personal use is more often a straw or a spoon or a syringe rather than scales, which are needed for measuring amounts to be sold. Powell testified in his own defense that he was a heavy user, that he used the scale because he had been cheated in making his buys, and that he had two prior convictions for felonies in Crawford County, Kansas. The jury was free to disbelieve Powell and to believe officers about the purpose of the scale; further, it was permissible for the jury to infer from Powell’s prior convictions that the scale was drug paraphernalia and that he possessed the cocaine with intent to deliver. The evidence was thus ^sufficient to support these two convictions.

Suppression Issues

Powell’s first three points concern the circuit court’s denial of his motion to suppress. The appellate court conducts a de novo review of a denial of a motion to suppress under the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, and giving due weight to inferences drawn by the circuit court and proper deference to the circuit court’s findings. Menne v. State, 2012 Ark. 37, 386 S.W.3d 451. We reverse only if the circuit court’s ruling is clearly against the preponderance of the evidence. Id.

Probable Cause to Stop

Powell first argues that the stop was illegal because his vehicle displayed a valid Kansas license plate, he constantly used turn signals when changing lanes, he was not speeding, he received no ticket, and Officer Warren could not specify the traffic violation in his testimony. He concludes that the officer had no probable cause to stop him because he committed no traffic -violations. We disagree.

A police officer may conduct a traffic stop and detain a motorist only where the officer has probable cause to believe that a traffic violation has occurred. Barrientos v. State, 72 Ark.App. 376, 39 S.W.3d 17 (2001). The relevant inquiry is whether the officer had probable cause to believe that a traffic violation was being committed or had occurred. Id.

Officer Warren testified that his primary job was “looking for drugs on the road.” He testified that he observed Powell’s vehicle impeding a line of four cars behind him in an Routside lane of 1-540 and, on two occasions, making lane changes and signaling only after beginning to move into the other lane. Both are traffic violations. Ark.Code Ann. §§ 27-51-301(b), -403(b), - 302 (Repl.2010); see also Yocum v. State, 325 Ark. 180, 188, 925 S.W.2d 385, 389 (1996) (stating that an arrest “shall not be deemed to have been made on insufficient cause ... solely on the ground that the officer ... is unable to determine the particular offense which may have been committed”) (citing Ark. R.Crim. P. 4.1). In light of these statutes and Officer Warren’s testimony, we cannot say that the trial court’s findings that traffic violations occurred and probable cause existed are clearly against a preponderance of the evidence.

Prolonged Detention

Powell contends that, even if the traffic stop was legal, the prolonged detention afterward violated Arkansas Rule of Criminal Procedure 3.1.

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Related

Worsham v. State
2017 Ark. App. 702 (Court of Appeals of Arkansas, 2017)
Stover v. State
2014 Ark. App. 393 (Court of Appeals of Arkansas, 2014)
Cassinelli v. State
2013 Ark. App. 553 (Court of Appeals of Arkansas, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
427 S.W.3d 782, 2013 Ark. App. 322, 2013 WL 2099817, 2013 Ark. App. LEXIS 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-state-arkctapp-2013.