Hicks v. State

Robert L. Brown, Justice,

concurring in part and dissenting in part. While I concur in the majority opinion in so far as it affirms Hicks’s convictions relative to the possession and delivery charges, I must respectfully dissent from that portion of the opinion that reverses his conviction for possession of drug paraphernalia due to the admission of the jar of Valium tablets and the triple-beam scales. The admission of such evidence, although erroneous, was not prejudicial error.

I. Methamphetamine Sale to Rodney Silvers

Clearly, the majority is correct in affirming the three methamphetamine-related convictions due to the overwhelming evidence of guilt. For example, as to the transaction with Rodney Silvers, Mark Lamm testified that Hicks admitted he sold Silvers four ounces of methamphetamine on May 10, 1995, and Lamm stated under oath that he saw Silvers leaving Hicks’s mobile home that afternoon with a coat draped over his arm. This evidence was corroborated by a subsequent search of Silvers’s residence, which uncovered a significant amount of methamphetamine that Robin Silvers testified was not present until after her husband’s return from Hicks’s mobile home.

II. Methamphetamine Sale to Mark Lamm and Possession of Methamphetamine with Intent to Deliver

As to the second transaction, Lamm’s testimony that he purchased methamphetamine from Hicks suffices as substantial evidence, and when corroborated with the methamphetamine found in Hicks’s bedroom and the testimony of Ms. Debra Schatz that Hicks carried the product from California in the leather zip-up bag, the evidence is convincing that he possessed methamphetamine with intent to deliver. In sum, the majority correctly disposes of Hicks’s argument with respect to these convictions.

III. Drug Paraphernalia

The State’s information charged Hicks with possession of a water pipe, or “bong,” containing suspected marijuana residue. Officer Lyle Scott of the Mountain Home Police Department testified that the bong was found in the living room of Hicks’s mobile home. Two hemostats containing suspected marijuana residue and a marijuana joint were found in close proximity to the water pipe. Because the mobile home was the joint residence of Hicks and Charles Lee, the State had the burden of proving that Hicks knew the water pipe was contraband and that he exercised care, control, and management over it. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995). This burden was met. Ms. Schatz testified that she went to sleep in Hicks’s bedroom on May 10, 1995, as early as 8:30 or 9:00 p.m. and that Charles Lee had left the mobile home as early as 4:00 p.m. that afternoon. From Hicks’s own testimony, he was awake and entertaining Rodney Silvers as late as 2:00 a.m. on May 11, 1995. This was only hours before the police search of the mobile home. Given the location of the water pipe at the time it was discovered and the fact that Hicks was the last person awake and in the living room, as opposed to Lee or Ms. Schatz, at the time of the search, there was clear evidence that Hicks, as opposed to any other occupant, had possession of the water pipe.

IV. Valium Tablets and Scales

This court has made it clear that a conviction may be affirmed if the evidence of guilt is overwhelming and the error complained of is slight. See, e.g., Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996); Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994). On these facts, the error regarding the Valium tablets was slight given the fact that the jury was explicitly apprised of the fact that the Valium tablets were taken from Lee’s bedroom in the jointly-occupied mobile home. Furthermore, Valium tablets were found on Hicks’s person.

As to the triple-beam scales, it was made clear to the court and to the jury that they were taken from Silvers’s residence. The court’s ruhng, however, is not without some support, as evidence of scales used for weighing methamphetamine found at the home of Hicks’s purchaser the day after the sale of a significant amount of methamphetamine is certainly probative of the occurrence of the sale itself. Furthermore, the question of the prejudice suffered by Hicks must be answered. Officer Tommy Steen of the Baxter County Sheriff’s Department testified on cross-examination that he could connect the scales to Sdvers’s residence, but not directly to Hicks. Also, Hicks puts forth the argument that the scales seized were dissimilar to those testified to by Lamm as having been at Hicks’s mobde home. In sum, given all the evidence before the jury on the scales, the impact of this error was manifestly slight.

As noted earlier, however, the erroneous introduction of evidence does not, by itself, entitle a criminal defendant to a reversal of his conviction. Other jurisdictions have applied a harmless error analysis when an irrelevant drug or item of irrelevant paraphernalia was introduced in a criminal prosecution involving controlled substances. See, e.g., United States v. Williams, 957 F.2d 1238 (5th Cir. 1992) (admission of marijuana found on defendant’s person was harmless error in prosecution for possession of cocaine with intent to distribute); People v. Romero, 546 N.E.2d 7 (Ill. App. 2 Dist. 1989)(testimony as to roach clips was harmless error in prosecution for possession of cocaine with intent to deliver); People v. Hollis, 373 N.E.2d 734 (Ill. App. 1 Dist. 1978) (admission of marijuana found at defendant’s residence was harmless error in prosecution for possession of cocaine and heroin); Rogers v. State, 862 S.W.2d 47 (Tex. App. 14th Dist. 1993)(admission of marijuana seized from defendant’s house was harmless error as to defendant’s guilt on charges of possession of methamphetamine and burglary).

Because of the overwhelming evidence of guilt supporting all four convictions, I would affirm the four judgments despite the erroneous admission of both the Valium tablets taken from Lee’s bedroom and the triple-beam scales taken from Silvers’s residence.

Glaze, J., joins.