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ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-13-639
Opinion Delivered February 12, 2014
JOE KING, II
APPELLANT APPEAL FROM THE POLK
COUNTY CIRCUIT COURT
[NO. CR-2012-160]
V.
HONORABLE J.W. LOONEY, JUDGE
STATE OF ARKANSAS AFFIRMED
APPELLEE
ROBERT J. GLADWIN, Chief Judge
Appellant Joe King appeals his convictions by a Polk County jury on counts of
possession of drug paraphernalia and possession of methamphetamine with the purpose to
deliver. Appellant argues that the circuit court erred by denying his motions for (1) a
psychological evaluation, (2) the suppression of evidence, and (3) directed verdict with
respect to possession of methamphetamine with the purpose to deliver. We affirm.
On or about November 29, 2012, appellant was arrested and charged with possession
with intent to use drug paraphernalia pursuant to Arkansas Code Annotated section
5-64-443(c) (Supp. 2011) and possession of a Schedule II controlled
substance—methamphetamine—with the purpose to deliver, pursuant to Arkansas Code
Annotated section 5-64-420(a)(2) (Supp. 2011). He was arraigned on December 5, 2012,
tried on April 18, 2013, and found guilty of both counts. Appellant was sentenced, pursuant
to a sentencing order filed on April 19, 2013, to serve 240 months in the Arkansas
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Department of Correction on each count, with both sentences to run consecutively for a
total term of 480 months. He filed a timely notice of appeal on April 25, 2013.
I. Sufficiency of the Evidence
Although appellant discussed it last in his brief, we address his sufficiency argument
first for double-jeopardy purposes. See Davis v. State, 2013 Ark. App. 658, __ S.W.3d __.
In a challenge to the sufficiency of the evidence, this court views the evidence in the light
most favorable to the State and considers only the evidence that supports the conviction.
Daniels v. State, 2012 Ark. App. 9, at 1–2. This court will determine whether there is
substantial evidence to support the conviction. 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. Heydenrich v. State, 2010 Ark. App. 615, 379 S.W.3d 507. The
trier of fact resolves the questions of conflicting testimony, inconsistent evidence, and
credibility. Daniels, 2012 Ark. App. 9.
Arkansas Code Annotated section 5-64-420(a) states that it is unlawful for a person
to possess methamphetamine with the purpose to deliver it. The purpose to deliver may be
shown by any of the following factors:
(1) The person possesses the means to weigh, separate, or package methamphetamine
or cocaine; or
(2) The person possesses a record indicating a drug-related transaction; or
(3) The methamphetamine or cocaine is separated and packaged in a manner to
facilitate delivery; or
(4) The person possesses a firearm that is in the immediate physical control of the
person at the time of the possession of methamphetamine or cocaine; or
(5) The person possesses at least two (2) other controlled substances in any amount;
or
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(6) Other relevant and admissible evidence that contributes to the proof that a
person’s purpose was to deliver methamphetamine or cocaine.
Ark. Code Ann. § 5-64-420(a)(1)–(6).
Appellant argues that these factors cannot be absolute evidence to prove purpose of
delivery and that the jury’s findings regarding his intent in this case were based on
speculation. Appellant claims that the State did not present any evidence that he had sold
any drugs or was trying to sell them. He argues that there is simply not substantial evidence
in this case to prove that he possessed methamphetamine with the intent to deliver.
We disagree. At trial, Deputy Ronald Richardson testified that on November 29,
2012, he and Officer Fields from the 18th West Drug Task Force went to appellant’s
residence to investigate after receiving information from the Polk County Sheriff that
appellant was dealing methamphetamine out of his residence. Upon their arrival, appellant
exited the residence and met them on the front porch with a rifle in his hands. Deputy
Richardson went into appellant’s residence to make sure that no one else was inside with a
weapon, while Officer Fields detained appellant on the porch and searched him for weapons.
While inside, Deputy Richardson smelled the strong odor of burned marijuana and saw a
marijuana-filled cigar, three feet inside the doorway, on the kitchen bar. Deputy Richardson
testified that appellant then told him that he had smoked marijuana earlier that day. Deputy
Richardson read appellant his Miranda rights and arrested him based on the marijuana and a
vial containing methamphetamine residue found by Officer Fields.
Deputy Richardson testified that, while searching appellant incident to the arrest, he
found a bag of methamphetamine rolled up in some money in appellant’s front-left pocket.
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Deputy Richardson explained that the bag contained a “usable amount” of
methamphetamine for two people. Deputy Richardson told the circuit court that, while
waiting in appellant’s home for the search warrant and for a deputy to take him to jail,
appellant told him that he had been receiving methamphetamine through the mail.
Officer Fields testified that when he executed the search warrant for appellant’s home,
he discovered twenty-four individual bags of methamphetamine totaling 8.49 grams. Officer
Fields also found a bag of twenty-five assorted pills that were determined to be Schedule 3
and 4 controlled substances. Officer Fields testified that during his search he found a box in
the kitchen that contained “numerous little baggies” and “a baby spoon that had a white
powdery residue on it[.]” The baggies in the box were the same type of bags in which the
methamphetamine was packaged. Continuing the search, Officer Fields found several sets
of digital scales and more plastic baggies. He testified that the scales were the type typically
used to separate large quantities of narcotics. Officer Fields testified that the way the
methamphetamine was bagged and in one location, coupled with the digital scales and
residue on them, indicated that appellant was selling methamphetamine.
The State correctly notes that four out of the five statutory factors indicating a purpose
to deliver methamphetamine were present in this case. The State presented evidence at trial
that (1) appellant possessed the means to weigh, separate, and package the methamphetamine;
(2) the methamphetamine was separated and packaged in a manner to facilitate delivery; (3)
appellant was holding a rifle when police arrived at his home; and (4) appellant also possessed
four other controlled substances, including the marijuana and pills found by the officers. We
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hold that the circuit court did not err by denying his motion for directed verdict with respect
to the charge that he possessed methamphetamine with the purpose to deliver it.
II. Denial of Appellant’s Request for a Psychological Evaluation
This court will not reverse a circuit court’s decision to deny a defendant’s request for
a mental evaluation unless that decision was clearly erroneous. Jiminez v. State, 2010 Ark.
App. 804, 379 S.W.3d 762. A criminal defendant is ordinarily presumed to be mentally
competent to stand trial, and the burden to prove otherwise is on the defendant. Bryant v.
State, 94 Ark. App. 387, 231 S.W.3d 91 (2006). The test of competency to stand trial is
whether a defendant has sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding and whether he has a rational and factual understanding of
the proceedings against him. Id.
Arkansas Code Annotated section 5-2-305(a)(1) (Supp. 2011)1 states that the circuit
court shall immediately suspend any further proceedings in a prosecution if:
(A) A defendant charged in circuit court files notice that he or she intends to rely
upon the defense of a mental disease or defect;
(B) There is reason to believe that the mental disease or defect of the defendant will
or has become an issue in the cause;
(C) A defendant charged in circuit court files notice that he or she will put in issue
his or her fitness to proceed; or
(D) There is reason to doubt the defendant’s fitness to proceed.
Officer Richardson testified at the suppression hearing that appellant had tried to
commit suicide while in custody. He explained that, according to reports he received from
1
Arkansas Code Annotated § 5-2-305(a)(1) was amended by Act 506 of the 2013
Arkansas legislative session, and subparagraphs (B), (C), and (D) were deleted.
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other deputies, appellant was threatening suicide, and they took a pistol from him a week or
two prior to the hearing. Appellant notes that his counsel was not provided a written
statement regarding any suicide attempt prior to the hearing. At the hearing, counsel asked
appellant about the incident, and appellant testified that he had been depressed. The
following discussion was then held on the record:
MR . RAINWATER : Okay. Your Honor, I asked my client about what Mr.
Richardson was saying about the suicidal episode. He has reported to me that he has
been depressed. Up to this point I haven’t raised any issue. I want to ask him if he
wants me to file for a psychological evaluation. Do you need one?
APPELLANT: Yes.
THE COURT: Well, depression in and of itself doesn’t relate to the competency to
stand trial, so I’d have to be convinced of a lot more than that before I would delay
the trial. I mean, the jury has already been called. To grant a motion for a
psychological, I don’t think that statement in and of itself is not enough. So if that
was a motion, Mr. Rainwater, it too is denied. Nine o’clock tomorrow.
Appellant reiterates that section 5-2-305 states that the court shall immediately suspend
any further proceeding if, among other things, there is reason to believe that the mental
disease or defect of the defendant will or has become an issue and if there is reason to doubt
the defendant’s fitness to proceed. This court in Jiminez, supra, determined that the circuit
court was clearly erroneous in declining to order a mental evaluation pursuant to the
mandatory language of section 5-2-305 regarding the immediate suspension of any further
proceedings if a defendant charged in circuit court files notice that he or she intends to rely
upon the defense of mental disease or defect. Appellant maintains that very little is required
of the defendant to trigger the mandatory language of the statute—mere notice will suffice.
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The mandatory immediate suspension of the proceedings is subject to the timeliness
provision in Arkansas Code Annotated section 5-2-304 (Supp. 2011): “When a defendant
intends to raise mental disease or defect as a defense in prosecution or put in issue his or her
fitness to proceed, the defendant shall notify the prosecutor and Court at the earliest
practicable time.” Although appellant acknowledges that the day of the trial was not the
earliest practicable time, according to the statute, if a defendant fails to follow the mandatory
time strictures of the statute, the prosecutor is entitled to a continuance that, for limitation
purposes, is deemed an excluded period granted on application of the defendant. Ark. Code
Ann. § 5-2-304. Accordingly, appellant submits that the penalty for untimely notice is more
time—charged to the defendant—for the State to prepare for the newly revealed defense.
But there is nothing in this provision to obviate the requirement that once notice of a
mental-defect defense is presented, the circuit court shall immediately suspend the
proceedings.
In denying appellant’s request, the circuit court ruled:
Depression in and of itself doesn’t relate to competency to stand trial, so I’d have to
be convinced of a lot more than that before I would delay trial. I mean, the jury has
already been called. To grant a motion for [a] psychological [examination], I don’t
think that statement in and of itself is enough.
There is no evidence before us to indicate that appellant filed notice of his intent to rely on
the defense of mental disease or defect or that he would put in issue his fitness to proceed.
Nor did counsel even suggest to the circuit court that appellant was unable to understand the
charges or assist in his defense. We hold that appellant’s mere statement that he was
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“depressed” was not enough to give the circuit court reason to believe that mental disease
or defect would be an issue or to give the circuit court reason to doubt his fitness to proceed.
Jiminez, supra, is distinguishable in that Jiminez actually filed notice with the court that
“he intended to raise the affirmative defense of mental disease or defect and requested that
the case be stayed so he could undergo a forensic evaluation.” Jiminez, 2010 Ark. App. 804,
at 5, 379 S.W.3d at 765. Moreover, Jiminez told the circuit court that he was requesting the
mental evaluation because of “no meaningful assistance in his own defense; the desire to
explore the defense of temporary insanity and not appreciating the consequences of his
actions; and the inconsistent statements from the police and [himself].” Id. Here, appellant
did not file any notice with the circuit court regarding his mental state or how it might affect
his trial, nor did he provide the court with any insight into why a mental evaluation was
needed. Accordingly, we hold that the circuit court’s decision to deny appellant’s request
for a psychological evaluation was not clearly erroneous.
III. Denial of Appellant’s Motion to Suppress Statement and Evidence
In reviewing the denial of a motion to suppress evidence, this court conducts a de
novo review based on 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, giving due weight to inferences drawn by the circuit court. Davis, supra.
The appellate court defers to the superior position of the circuit judge to pass upon the
credibility of witnesses. Id. It will reverse only if the circuit court’s ruling is clearly against
the preponderance of the evidence. Id.
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Arkansas Rule of Criminal Procedure 3.1 (2013) provides that an officer lawfully
present in any place may, in the performance of his duties, stop and detain any person who
he reasonably suspects is committing, has committed, or is about to commit a felony or a
misdemeanor involving danger of forcible injury to persons or of appropriation of or damage
to property, if such action is reasonably necessary either to obtain or verify the identification
of the person or to determine the lawfulness of his conduct. If an officer who has detained
a person under Rule 3.1 reasonably suspects that the person is armed and presently
dangerous, the officer may search the outer clothing of the person and the immediate
surroundings for any weapon or other dangerous item. Ark. R. Crim. P. 3.4 (2013).
The test in determining whether a frisk is reasonable is an objective one. Franklin v.
State, 2010 Ark. App. 792, 378 S.W.3d 296. The question is whether a reasonably prudent
person in the officer’s position would be warranted in the belief that the safety of the police
or that of others was in danger. Id. Due weight is given to specific reasonable inferences an
officer is entitled to derive from the situation in light of his experience as a police officer.
Id. An officer’s reasonable belief that a suspect is dangerous must be based on specific and
articulable facts. Id. A suspect’s demeanor and manner, whether a suspect is carrying
anything, and what he is carrying, any information received from third persons, and a
suspect’s apparent effort to avoid identification or confrontation by law-enforcement officers
are all factors to be considered in determining whether an officer has grounds to reasonably
suspect. Id.
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In this case, it is undisputed that officers came to appellant’s home to obtain his
consent to enter and search the home. Officer Fields testified that he patted appellant’s
clothing and noticed a bulge in his pocket. Officer Fields asked appellant what it was, and
appellant pulled out what Officer Fields described as a clear, plastic vial. He explained that
inside it was a watch-battery-sized baggie that contained residue that he believed, based on
his experience, to be methamphetamine. Officer Fields testified that, at that point, he
believed that he had probable cause to make an arrest. He acknowledged that he did not
advise appellant of his Miranda rights at that time, knowing that he was going to ask appellant
for consent to search the residence. Officer Fields next asked if there was more
methamphetamine in the house. Appellant replied, “[y]es,” that there were “ten bags or so.”
Officer Fields asked for consent to search, but appellant would not commit one way
or the other. Officer Fields explained that, at that time, he and Deputy Richardson thought
they had enough evidence to apply for a search warrant. At that time, they made the
decision to arrest appellant, and they Mirandized him.
Appellant cites Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006), in which our
supreme court stated that the safeguards prescribed by Miranda become applicable as soon as
a suspect’s freedom of action is curtailed to a degree associated with formal arrest. The
supreme court also held that a person is in custody for the purposes of the Miranda warnings
when he is “deprived of his freedom by formal request or restraint on freedom of movement
of the degree associated with a formal arrest.” Id. at 152, 243 S.W.3d at 873.
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Appellant points out that officers kept him on a small porch in front of his single-wide
trailer. His gun was taken away from him, and the officers would not allow him to go back
into his house. He claims that he was under an “effective arrest” at the time of questioning
and that he should have been read his Miranda rights at that time.
Officer Fields and Deputy Richardson were asked by the Polk County Sheriff to drive
out to appellant’s home, as there were complaints that drugs were being sold from the
house.2 It is undisputed that when they arrived at appellant’s home, he met them on the
front porch with a rifle. Deputy Richardson took appellant’s rifle away, and Officer Fields
conducted a pat-down search to ensure the officers’ safety. While conducting the pat-down,
Officer Fields said he felt a small cylindrical bulge in appellant’s pocket. Officer Fields asked
him what the bulge was, and, with no other prompting, appellant pulled from his pocket a
clear, plastic vial that contained a watch-battery-sized baggie with methamphetamine residue
inside. Officer Fields asked him if the residue would test positive for methamphetamine, and
appellant replied, “[Y]es.” Officer Fields next asked if there was more methamphetamine
in the house. Appellant replied, “[y]es,” that there were “ten bags or so.” Shortly
afterward, appellant was arrested and read his Miranda rights by Deputy Richardson.
Because appellant met the officers on his front porch with a rifle, Officer Fields
reasonably detained and frisked him to ensure the officers’ safety. The contraband was
discovered when, after the valid frisk, appellant voluntarily pulled the contraband out of his
2
This court may rely on trial testimony to affirm the circuit court’s suppression ruling.
Charland v. State, 2011 Ark. App. 4, 380 S.W.3d 465.
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pocket and showed it to Officer Fields. In its ruling, the circuit court found that under the
totality of the circumstances Officer Fields was “entitled to do [pat-down] once [he] saw
[appellant] with a weapon.” Given the totality of the circumstances, we hold that the circuit
court’s decision to deny appellant’s motion to suppress the evidence was not clearly against
the preponderance of the evidence.
Affirmed.
WOOD and BROWN , JJ., agree.
Randy Rainwater, for appellant.
Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
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