ARKANSAS COURT OF APPEALS

WENDELL L. GRIFFEN, JUDGE

NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR01-549

November 28, 2001

RODNEY SCALES AN APPEAL FROM CHICOT

APPELLANT COUNTY CIRCUIT COURT

[CR99-84-1]

V. HON. DON E. GLOVER, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

A jury convicted appellant Rodney Scales of possession of cocaine, and he was subsequently sentenced by the trial court to three years' imprisonment in the Arkansas Department of Correction. For his sole point on appeal, appellant contends that the State's evidence is not sufficient to sustain his conviction. We hold that appellant's argument is procedurally barred. Moreover, the State presented substantial evidence to sustain appellant's conviction.

On May 7, 1999, around 9:30 p.m., Officer Eric Evans and Sergeant Michael Wolfe turned north off West Iowa Street onto Trotter Street in Dermott, Arkansas. After traveling approximately five yards, the officers stopped in front of Roe's Café, where three groups of people were standing. Evans testified that one group stood in the back under a streetlight; another group stood towards the front of the building; and a third group stood across the street. He testified that there was a streetlight in the back of the café, a streetlight in the middle of the café, and a streetlight in front of the café on the corner of West Iowa and Trotter. Evans testified that the area was clear as daylight, and that he could see everything, including appellant sticking his hand in front of his pants, retrieving a baggie, and throwing it away as he turned behind the café. He testified that appellant was standing approximately eight or nine feet away, and that appellant began walking towards him after appellant dropping the bag. Evans retrieved the baggie and gave it to his sergeant. He testified that he had lived in Dermott his entire life and that he knew appellant because they went to school together. Evans testified that appellant was the only person who went around behind the café and that no one else was in the area where he retrieved the baggie. Once Evans gave the baggie to his sergeant, appellant was placed under arrest and transported to the police station, where he was informed of his Miranda rights. Evans testified that he did not participate in the search of appellant's home. On cross examination, Evans testified that although there were probably forty people in the area, there were not forty people in the area where he observed appellant.

Next, Sergeant Michael Wolfe testified that he was working as a patrol sergeant on May 7, 1999, when he and Evans were patrolling the area of West Iowa and North Trotter, known as "skid row." Wolfe confirmed that there were streetlights along West Iowa and North Trotter, and that there were three streetlights at Roe's Café, which sat immediately onthe right of North Trotter after one turned off West Iowa. Wolfe testified that all three streetlights were working on May 7, 1999. He testified that he was driving the patrol unit and that Evans was on the passenger side closest to the café. Wolfe testified that he observed appellant with three other individuals and that he witnessed appellant going around a corner. However, Wolfe testified that he did not see appellant pull anything out of his pocket. Wolfe approached the group of individuals to inquire if they were drinking. When they admitted they were, Wolfe placed them under arrest. In the meantime, Evans returned from the back of the building, and gave Wolfe a plastic baggie that appeared to contain crack cocaine. Wolfe testified that he did not participate in the search of appellant's home.

The State also presented the testimony of Preston Grumbles, sergeant of criminal investigations, who testified that he was working as a criminal investigator on the night of May 7, 1999, when he responded to a dispatch call at North Trotter Street beside Roe's Café. Upon arrival, Grumbles was given a clear plastic baggie that contained a pill bottle, several white rocks believed to be crack cocaine and $707.11. Grumbles then notified the chief criminal investigator. He testified that he was familiar with the area surrounding Roe's Café and that Roe's sat on the corner. Grumbles also testified that there were three streetlights in the area that were working on May 7, 1999, including a 500-watt halogen light that shone all the way to the corner of Roe's and a regular porch light on the building.

Grumbles testified that he was present when appellant signed the consent to search form, and that he participated in the search of appellant's home, which was located at 1203 North Hardy in Dermott, Arkansas. He testified that appellant gave the officers a key, andthat they discovered a small plastic bag containing an off-white rock substance in the northwest bedroom, which was later identified as appellant's bedroom.

Assistant Chief Charles Watson, also testified on behalf of the State. Watson testified that appellant signed a consent form, and that the police went to his home to conduct the search. Upon searching appellant's bedroom, Watson found a plastic baggie that contained a whitish, rock-like substance that he believed to be crack cocaine, and a razor blade. Photographs were taken and the items were confiscated.

In addition, Officer Heath Edens testified that he went to appellant's residence and took pictures of a plastic baggie containing an off-white rock substance, a razor blade, and appellant's drivers license. He testified that all of the items were on a mirror-type chest of drawers in appellant's bedroom.

After the State rested, appellant moved for a directed verdict, arguing that there was a lack of substantial evidence to convict because Officer Evans's testimony was not sufficient and was rebutted by Officer Wolfe's testimony. He also argued that a fingerprint analysis was not conducted on the evidence seized from his home.1

Once the trial court denied his motion for directed verdict, appellant presented a defense. He then renewed his motion for directed verdict, arguing that Evans's testimony was uncorroborated. Appellant also contended that Watson's testimony was notcorroborated. The trial court denied the motion. Following deliberations, the jury convicted appellant of possession of cocaine. This appeal followed.

Analysis

For his sole point on appeal, appellant argues that the State's evidence was insufficient to prove that he had actual or constructive possession of a controlled substance. He contends that the jury's verdict was based entirely on the testimony of two police officers, whom appellant argues were not credible. Appellant's argument is procedurally barred.

Rule 33.1(a) of our Rules of Criminal Procedure (2001) governs motions for directed verdict in a jury trial. This rule requires motions for directed verdict to be made at the close of the State's case, as well as at the close of the evidence. See id. Additionally, a defendant must state with specificity the grounds on which he believes the State's evidence is not sufficient. See id. Parties are bound by the scope and nature of arguments that they present at trial, and when a specific basis for an alleged error is not presented to the trial court, the argument is deemed waived on appeal. See Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

Motions for a directed verdict are treated as challenges to the sufficiency of the State's evidence. See Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999). On appeal, the issue is whether there is substantial evidence to sustain a verdict. See id. Substantial evidence is direct or circumstantial evidence that will support a conviction, without a trier of fact being required to resort to mere speculation. See id. Evidence is viewed in the lightmost favorable to the State, and only evidence that supports a verdict is considered. See id.

In the present case, appellant moved for a directed verdict at the close of the State's case, arguing that Officer Evans's testimony was not sufficient to sustain a conviction and that the State failed to conduct a fingerprint analysis. He later moved for a directed verdict at the close of the case, arguing that neither Evans's nor Watson's testimony was corroborated. Appellant now argues on appeal that the evidence is not sufficient because the State failed to prove that he had actual or constructive possession of a controlled substance. However, appellant is limited on his appeal by the arguments he presented at trial to specifically apprise the trial judge of the grounds upon which he sought a directed verdict. Appellant failed to challenge the sufficiency of the State's evidence at trial on the grounds of actual or constructive possession. Therefore, we hold that he is procedurally barred from raising the issue on appeal.

Moreover, even if we were to consider appellant's sufficiency challenge, it would fail. Witness credibility in a criminal trial is a matter for the jury to resolve, and the jury may reject in whole or in part, the testimony of any witness. See Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). There is no requirement that a jury consider each fact in isolation; instead the jury may consider the evidence as a whole. See Bridges v. State, 46 Ark. App. 198, 878 S.W.2d 781 (1994). When doing so, the jury is not required to abandon common sense and it is entitled to draw reasonable inferences. See id.

To sustain a conviction that an accused possessed a controlled substance, the Stateis not required to demonstrate that the accused actually possessed the substance. See Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998). Instead, it will suffice if the State provides proof that the accused had control or the right to control the contraband. See id. When contraband is found in an area that is immediately and exclusively accessible to the defendant and is subject to his control, constructive possession may be implied. See id. However, if the contraband is found in an area that is jointly occupied, the State must also prove 1) that the defendant exercised care, control, and management of the controlled substance and 2) that the defendant knew that the item he possessed was contraband. See Bridges, supra. Control and knowledge may be inferred by the circumstances, including the proximate location of the contraband to the accused, whether the contraband was in plain view, whether the accused owned the property where the contraband was found, and whether the accused displayed any suspicious behavior before or during his arrest. See Bridges, supra.

We have no difficulty concluding that substantial evidence existed to support appellant's conviction. Three officers testified that the area outside of Roe's Café was well lit. Officer Wolfe testified that he drove the patrol car, and that Officer Evans, as the passenger in the car, was closer to the building than Wolfe. Evans testified that he observed appellant remove a baggie from his pants and throw the baggie to the ground behind the café as he turned around. This baggie was later discovered to contain crack cocaine. Evans testified that no one else was in the area where appellant tossed the baggie. Although appellant argues otherwise, the jury was entitled to believe all or part of Evans' testimony. This evidence was sufficient to demonstrate that appellant actually possessed a controlled substance.

In addition, the State presented ample evidence that appellant constructively possessed the cocaine found in his home. There is no dispute that appellant lived in the residence or that appellant gave the officers permission to search the residence. Once inside the residence, Assistant Chief Watson testified that he found crack cocaine in appellant's bedroom on the dresser in plain view. Appellant's drivers license and a razor blade were in close proximity to the cocaine. These facts support an inference that appellant had control or the right to control the contraband and that appellant had knowledge of the contraband. Again, the jury was entitled to believe Watson. Accordingly, substantial evidence exists to support the conclusion that appellant had a superior or equal right to control the house, and to connect him with the contraband.

Affirmed.

Stroud, C.J., agrees.

Pittman, J., concurs.

1 Appellant's abstract simply states "at this time, appellant moved for a directed verdict which was denied by the court." However, a review of the record demonstrates that appellant specifically argued that Evan's testimony was insufficient because it was more or less rebutted by Officer Wolfe, and that the evidence seized from the house was not sufficient because the State failed to conduct a fingerprint analysis.